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2019 DIGILAW 606 (ORI)

Bhaganeswar Sahu v. State of Orissa

2019-09-26

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 06.05.1993 passed by the learned Special Judge, Cuttack in 2(C) CC No. 41 of 1990. By the said judgment, the appellant (accused) has been convicted for committed offence under Section 7 of the Essential Commodities Act for contravention of Clause 4 of the Kerosene (Fixation of Ceiling prices) Order and for violation of conditions of Clauses 5 to 8 of the Kerosene Licence granted to the petitioner and it has been ordered that for the same, he would undergo simple imprisonment for a period of six months and pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for a period of one month. 2. The prosecution case in short is that the Marketing Inspector, Civil Supply Corporation (P.W. 1) with others staff visited the business premises of the accused on 25.07.1989. During visit they found that the accused was not maintaining the accounts up-to-date. It was also noticed that although, obligated under Orissa Declaration of Stocks and Price of Essential Commodities Order the prevailing price of essential commodity" has not been maintained in the Declaration Board. It is said that from 22.02.1989 onwards the Board was not maintained. The stock register was not uptodate with the last entry dated 24.07.1989, and cash book produced was not also uptodate. They seized 4300 litres of kerosene as was available. On scrutiny of the documents and verification of the available stock at hand, P.W. 1 found shortage of 216 litres of kerosene. On verification of the records it was found that the accused was not submitting the returns every fortnight to the Licensing Authority. With all these allegations, the prosecution report was submitted against the accused and his brother, namely, Khageswar Sahu. They faced the trial. This accused admitted to be the wholesale dealer of kerosene. He however, denied the allegations made against him and his liability on those counts. 3. From the side of the prosecution five witnesses were examined and all the seized documents have been proved, The defence has examined one witness and proved the issue register (Ext. A), statement of accused (Ext. B) and some cash memos. He however, denied the allegations made against him and his liability on those counts. 3. From the side of the prosecution five witnesses were examined and all the seized documents have been proved, The defence has examined one witness and proved the issue register (Ext. A), statement of accused (Ext. B) and some cash memos. The trial Court on scrutiny of evidence and examination of the documents admitted in the evidence from the side of the prosecution has found the accused guilty of having deficit of 260 liters of kerosene in the stock and thus finding the contravention of the Control Order and the license conditions, this accused has been convicted for commission of offence under Section 7 of the Essential Commodities Act. Accordingly, he has been sentenced as aforestated. The other accused namely Khageswar who happens to be the brother of this accused has been acquitted holding that he has nothing to do in the matter of wholesale business of kerosene by this accused. 4. Learned Amicus Curie submits that here the prosecution has held to be bad in law and the trial stands vitiated for the reason that the accused has been taken to surprise being not explained with the substance of the accusations with reference to the contravention of the particular clauses of the Control Order promulgated under Section 3 of the Essential Commodities Act, for which he was proceeded in the trial. He thus submits that 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 Order 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 summons procedure having not explained the accusations with specific reference to the violation of the Control Orders stands insignificant and it is of no such fatal consequence in the outcome of the trial. 6. Going to address the rival contention, I have carefully gone through the record of the trial Court. 6. Going to address the rival contention, I have carefully gone through the record of the trial Court. It appears that on 11.03.1991 the trial Court has explained the substance of the accusations. For proper appreciation, that order need be reproduced and it runs as under:- "Both the accused persons are present. Perused the relevant papers placed before me. The particulars of offence stated in the P.R. is explained to the accused persons. They plead not guilty and claim to be tried. Issue summons to the witnesses, fixing 26.04.1991 for evidence. Accused persons are as before." It appears from the above order that except just mentioning that the substance of accusations are explained, it has not further been mentioned that either those are with reference to the facts of the case or as regards violation of particular Control Order; nor there has been any indication as to for what reason such violations are alleged. It has not been reflected in the order that while explaining the substance of accusations, the trial Court has given any hint as to which of the clauses of the Control Order made under Section 3 of the Essential Commodities Act has been violated. In the circumstances as aforesaid, in my considered view the accused have been seriously prejudiced in the trial and finding of guilt under Section 7 of the Essential Commodities Act against the accused cannot be sustained. Having said so, in view of lapse of more than three decades, 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 06.05.1993 passed by the learned Special Judge; Cuttack 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.