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2019 DIGILAW 551 (ORI)

Mutyala Hari v. State of Orissa

2019-08-28

D.DASH

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JUDGMENT : D. Dash, J. 1. The appellant, by filing this appeal, has assailed the judgment of conviction and order of sentence dated 28.09.1993 passed by the learned Special Judge, Koraput, Jeypore in T.R. Case No. 23 of 1990. By the impugned judgment and order, the accused has been convicted for offence punishable under Section 7(1)(a)(n) of the Essential Commodities Act for contravention of clause 3 of the Orissa Rice and Paddy Control Order, 1965 and accordingly, he has been sentenced to undergo rigorous imprisonment for a period of one year. 2. The prosecution case in short is that on 29.07.88 P.W. 1, the Marketing Inspector, Nawarangpur found one mini truck bearing registration No. OSK 3385 to be standing at the northern check gate of Nawarangpur Municipality. The accused was sitting in the truck and that truck was found to be loaded with 30 quintals of coarse rice. It is said that the accused was transporting the said stock to Umerkote for sale. The accused failed to show any authority for said possession of 30 quintals of coarse rice. So the truck with the loaded bags of coarse rice were seized and prosecution was launched against the accused Prosecution report having been submitted, the accused faced the trial The accused pleaded as not guilty. 3. In the trial, prosecution examined three witnesses as against none from the side of the defence. From the side of the prosecution, the relevant seizure list, zimahama and statement of accused said to have been given to P.W. 1 have also been proved. 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 Order 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 and 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. 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. He further submits that even accepting the prosecution case of seizure of 30 quintals of coarse rice from the mini truck which was standing at the relevant time and it is said that those coarse rice were being transported by the accused in the said truck, in the absence of any evidence that said vehicle was being used for storage of rice for being sold at the point, no violation of clause 3 of Orissa Rice and Paddy Control Order is made out to hold that the petitioner is liable for commission of offence under Section 7(1)(a)(n) of the Essential Commodities Act. 5. Learned Addl. Standing Counsel submits that when such factum of contravention of the Control Order promulgated under Section 3 of the Essential Commodities Act has 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 Order is insignificant, having no such fatal consequence so as to hold the trial to have been vitiated. He submits that the seizure of the coarse rice of 30 quintals being made from the mini truck where the accused was sitting, he is liable for such unauthorized possession. 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 13.12.1990, the accused entered appearance on 25.01.1991. On that day, the copy of the prosecution report was served upon 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(i) of the Orissa Rice and Paddy Control Order, 1965; and for such violation, 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 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 the Control Order, without any indication as to for what reason such violation is 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 the allegations leveled 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 made under Section 3 of the Essential Commodities Act has been violated. P.W. 1 also in his evidence has not stated that for that detection which order stood violated by the accused. In the circumstances as aforesaid, in my considered view prejudice to the accused in the trial is writ large. 7. The prosecution case here is that on the relevant date and time the accused was found in the mini truck being loaded with 30 quintals of coarse rice standing at the northern check gate of Nawarangpur Municipality for onward movement to Umerkote for sale. It has been held in case of B.K. Agarwala vs. State of Orissa; 1996 (2) OCR (SC) 573 that carrying goods in a vehicle cannot per se be 'storing' although it may be quite possible for a vehicle being used as a store. It has been said that the transporting is not storing. Deciding the question as to whether paddy loaded in the truck in excess of the prescribed limit, if can be said to have been 'stored' within the meaning of the word storage in the said Control Order. It has been said that the transporting is not storing. Deciding the question as to whether paddy loaded in the truck in excess of the prescribed limit, if can be said to have been 'stored' within the meaning of the word storage in the said Control Order. The Hon'ble Apex Court referring to the dictionary meaning the word 'store' in "Black's Law Dictionary and Webster's Comprehensive Dictionary, (International Edition) as well as Concise Oxford Dictionary, it has been held that 'storing' has an element of continuity as the purpose is to keep the commodity in store retrieve it at some future date, even within a few days If goods are kept or stocked in a warehouse, it can be immediately described as an act of 'storage'. A vehicle can also be used as a storehouse. But, whether in a particular case, a vehicle is used in that way, would be a matter of fact in each case. Applying ratio of above decision to the facts and circumstances of the case as presented by the prosecution, in the absence of any evidence that the mini truck in question was being used for storage of those 30 quintals of coarse rice for being sold at different point, no violation under clause 3 of the Orissa Rice and Paddy Control Order is seen to have been made so as to hold the accused guilty for commission of offence under Section 7(1)(a)(ii) of the Essential Commodities Act. In the wake of aforesaid, the judgment of conviction and order of sentence cannot be sustained. 8. In the result, the appeal is allowed The judgment of conviction and order of sentence dated 28.09.1993 passed by the learned Special Judge, Koraput, Jeyporein T.R. No. 23 of 1990 which have been impugned in this appeal are hereby set aside. The bail bonds furnished by the appellant (accused) shall stand discharged. The LCR be sent back forthwith