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2019 DIGILAW 527 (ORI)

Baleswar Prasad Gupta v. State of Orissa

2019-08-14

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The appellant, by filing this appeal, has assailed the judgment of conviction and order of sentence dated 13.07.1993 passed by the learned Special Judge, Koraput, Jeypore in T.R. Case No. 27 of 1990. By the impugned judgment and order, the accused has been convicted for offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act for contravention of clause 3 of the Orissa Food grains Dealers' Licensing Order, 1964; clauses 4 and 6 of the Kerosene (Fixation of Ceiling Price) Order 1970; clause 3(2) of the Orissa Rice and Paddy Control Order 1965 and clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order 1973 and accordingly, he has been sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs. 2000/- in default to undergo rigorous imprisonment for three months. 2. The prosecution case in short is that on 18.5.1990 when P.W. 5, the Supply Inspector, Kotpad with the Executive Magistrate and others visited the business premises of accused at Murtahandi i.e. his grocery shop, 172 bags of coarse paddy, 257 bags of fine paddy, 6 bags of super fine paddy and 13 bags of rice were recovered. During that inspection Mohua, edible oil, sugar, oil seeds and pulses of different varieties were also found to have been kept. The accused was a retailer for sale of kerosene. On verification of the stock and sale registers, shortage in the stock of kerosene to the tune of 200 litres was detected which the accused failed to account for. It is stated that the accused had no license for possessing and storing all those seized essential commodities. Moreover, he had not displayed the stock and price declaration board in respect of those essential commodities in his shop. Prosecution report having been submitted, the accused faced the trial. The plea of the accused was that he is not guilty. 3. In the trial, prosecution examined five witnesses as against four from the sides of the defence. From the side of the prosecution, the relevant registers, seizure list and zimanamas have been proved. The defence has also proved a number of documents as to the acquisition of landed property and the record of rights pertaining those. 4. 3. In the trial, prosecution examined five witnesses as against four from the sides of the defence. From the side of the prosecution, the relevant registers, seizure list and zimanamas have been proved. The defence has also proved a number of documents as to the acquisition of landed property and the record of rights pertaining those. 4. Learned counsel for the appellant Submits that the accused having not been explained with the accusation with specific reference to the violation of Control Orders promulgated by virtue of the provision-of section 3 of the Essential Commodities Act leading to the commission of offence under section 7(1)(a)(ii) of the Act, the entire trial is vitiated arid therefore, the finding of conviction and order of sentence cannot be sustained In this connection, he has relied upon the decision rendered by Hon'ble Justice R.N. Misra as His Lordship then was in case of Tarinisen Maharana (Criminal Revision No. 136 of 1979) and Narayan Das (in Criminal Revision No. 143 of 1979) vs. The State reported in 1980 C.L.R. 227. 5. Learned Addl. Standing Counsel submits that when such factum of contravention of the Control Orders promulgated under section 3 of the Essential Commodities Act have been well indicated in the prosecution report, the trial court while trying the case under the summon procedure having not explained the accusations with specific reference to the violation of the Control Orders insignificant having no such fatal consequence so as to hold the trial to have been vitiated. 6. Proceeding to address the rival submission, I have perused the order sheet of the trial court. Pursuant to the summon issued by order dated 19.12.1990, the accused entered appearance on 2.1.1991. On that day, the copy of the prosecution report was served upon the learned counsel for the accused. The trial court then allowing the prayer for grant of bail to the accused and directing for his release on bail has proceeded to explain the particulars of offence. For proper appreciation, that part of the order is reproduced. "Particular of the offence under section 7(1)(a)(ii) of the Essential Commodities Act with reference to the fact of the case explained. Accused pleads not guilty and claims trial". For proper appreciation, that part of the order is reproduced. "Particular of the offence under section 7(1)(a)(ii) of the Essential Commodities Act with reference to the fact of the case explained. Accused pleads not guilty and claims trial". The prosecution report of course finds mention of the contravention of clause 3 (ii) of the Orissa Rice and Paddy Control Order, 1965; clause 3 of the Orissa Food grains Dealers' Licensing Order, 1964; clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 and clause 4 and 6 of the Kerosene (Fixation of Ceiling Price) Order, 1970 and for such violations, the prosecution had prayed for holding the accused guilty for commission of offence under section 7(1)(a)(ii) of the Essential Commodities Act after trial But it appears from the above order that except just mentioning that particulars of offence are explained with reference to the fact of the case, nothing has been indicated as regards the violation of any of those Control Order, without any indication as to for what reason such violations are alleged. The accused having been supplied with the copy of the prosecution report on the very day, it is not acceptable for a moment to say that he was well aware of all the allegations levelled against him. In the order of the trial court while explaining the particulars of offence, there has not been any hint as to which control order/s made under section 3 of the Essential Commodities Act has/have been violated. P.W. 5 also in his evidence has not stated as to which order/s have been violated by the accused. In the circumstances as aforesaid, in my considered view the accused has been seriously prejudiced in the trial and therefore, the judgment of conviction and order of sentence cannot be sustained. Having said so, in view of lapse of more than 29 years by now since the date of detection, this Court refrains from directing for retrial. 7. In the wake of aforesaid, the judgment of conviction and order of sentence dated 13.7.1993 passed by the learned Special Judge, Koraput, Jeypore which have been impugned in this appeal are set aside. Accordingly, the appeal is allowed. The bail bonds furnished by the appellant (accused) shall stand discharged. The LCR be sent back forthwith.