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2021 DIGILAW 217 (ORI)

Chaitanya Nahak v. State Of Odisha

2021-05-12

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellant Chaitanya Nahak was summarily tried in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(C) C.C. No.08 of 1989 for offences punishable under sections 7 and 9 of the Essential Commodities Act, 1955 (hereafter 'E.C. Act') for contravention of the provisions under Clause 3(1) of the Orissa Sugar Dealers' Licensing Order, 1963 (hereafter 1963 Order'), Clause 6 of the Orissa Rice and Paddy Control Order, 1965 (hereafter 1965 Order') and Clause 14 of the Orissa Wheat and Wheat Products Control Order, 1988 (hereafter 1988 Order'). The learned trial Court vide impugned judgment and order dated 06.09.1990 found the appellant guilty of the offences under sections 7 and 9 of the E.C. Act and sentenced him to undergo rigorous imprisonment for a period of six months on each count and directed the sentences to run concurrently. 2. The case of the prosecution, in nutshell, is that Sundarpur Service Cooperative Society (hereafter 'S.S.C. Society'), a Society registered under the Orissa Co-operative Societies Act, 1962 had taken out the licenses vide Exts.1, 2 and 3 under the 1963 Order, 1965 Order and 1988 Order respectively to deal with sugar, rice and wheat as a retail dealer at village Sundarpur during the year 1986-87. On the strength of such licenses, the S.S.C. Society applied for authority to deal with those essential commodities on behalf of the consumers covered under Public Distribution System. The Sub-Collector, Chatrapur, who was the licensing authority in that regard, authorized the Secretary, S.S.C. Society i.e. the appellant to be the dealer for dealing with such commodities under the Public Distribution System. For lifting the stock of those commodities meant for distribution under the public distribution system, the Sub-Collector or his subordinate i.e. Block Development Officer, Chatrapur, Ganjam used to pass allotment orders in favour of the S.S.C. Society for taking delivery through its Secretary and pursuant to the allotment orders vide Exts.15, 17, 19, 21, 23 and 25 passed by Block Development Officer, Chatrapur, Ganjam, the release orders vide Exts.16, 18, 20, 22, 24 and 26 were issued for issue of the commodities in favour of the Secretary, S.S.C. Society from the side of the stockist from time to time during that licensing period. It is the further prosecution case that on 24.02.1989 at about 3 p.m., Md. It is the further prosecution case that on 24.02.1989 at about 3 p.m., Md. Habibulla (P.W.1), Inspector of Supplies, Block Office, Chatrapur who is the Complainant of the case along with Sri Bauribandhu Padhi, Inspector of Supplies, Headquarter, Chatrapur visited the business premises of the S.S.C. Society and found that the appellant who was the Secretary was present there and on demand, he produced books of account of sugar, wheat, wholemeal Atta and rice relating to the fair price shop for the period 12/88 to 1/89. Exts.4 to 7 were the registers in respect of sugar, Exts.8 to 11 were the registers in respect of wheat and Exts.12 to 14 were the registers in respect of rice which were placed for inspection in compliance of the direction. It is the further prosecution case that on going through those registers, P.W.1 noticed that pursuant to the orders under Ext.15 of the allotting authority and Ext.16 of the licensing authority, the appellant had lifted sixteen quintals of sugar on 11.01.1989 by acknowledging receipt against the entries Ext.4/1 of the Sugar log book and Ext.5/1 of the Sugar stock register and stated to have distributed the same by 20.01.1989 without collecting the signatures of the purchasers against the relevant entries made in the Sugar sales register, Ist Volume (Ext.7). In the Sugar sales register, 2nd Volume (Ext.6), P.W.1 noticed noting of sale of sugar in favour of ration card holders without collection of signatures of the concerned card holders at pages 22, 24, 28, 32 and at several other pages. As against sugar allotment order dated 11.01.1989 (Ext.17) and issue order dated 30.01.1989 (Ext.18), the appellant lifted 16 quintals of sugar on 06.02.1989 on behalf of the S.S.C. Society by acknowledging receipt against the entries Ext.4/2 of the Sugar log book dated 06.02.1989 and Ext.5/2 of the Sugar stock register, however he indicated disposal of the said stock prior to its actual receipt in between the 3rd and 5th February 1989 by making postings at pages 22 to 40 of the Sugar sales register (Ext.6) and also at page 22 of the Sugar stock register (Ext.5) displaying manipulation of accounts. P.W.1 further noticed that the stock of sugar collected on 11.01.1989 had been totally disposed of on sale by 20.01.1989 as endorsed in Sugar stock register (Ext.5) at page 22, yet, sale of sugar had been indicated in between the 3rd and 5th February 1989, though no stock of sugar had been collected prior to 06.02.1989 as per the entry Ext.4/2 in the Sugar log book. It is the further prosecution case that the appellant had indicated sale of 10 kgs. of wheat to each of the consumers approaching the establishment on 18th, 19th and 20th of January 1989 by making postings at pages 23 to 26 of wheat sales register (Ext.10) from out of the stock of 7 quintals of wheat, which he had lifted pursuant to the allotment order dated 12.12.1988 (Ext.19) and issue order dated 11.01.1989 (Ext.20) by appending acknowledgment receipts in the entries, Exts.8/1 and 9/1 of the log book and stock book maintained respectively concerning wheat. It was further noticed that as against the allotment order dated 11.01.1989 (Ext.21) and issue order dated 30.01.1989 (Ext.22), the appellant had lifted 8 quintals of wheat on 31.01.1989 and posted the fact of receipt against the entries vide Exts.8/2 and 9/2 in the log book and wheat and Atta stock register respectively and shown to have disposed of that entire stock on 5th and 6th of February 1989 by making postings at pages 27 to 30 of the wheat sales register (Ext.10) reflecting supply at the flat rate of 10 kgs. in favour of each of the named customers. It is the further prosecution case that pursuant to the allotment order (Ext.23) and issue order (Ext.24), the appellant had lifted 8 quintals of wheat flour on 02.02.1989 on acknowledging receipt against the entry Ext.8/3 and the entry at page 9 of Ext.9 and indicated sale of that stock on 6th and 7th of February 1989 in the Atta sales register (Ext.11) at pages 1 to 3 without collecting the signatures of any of the purchasers against the concerned entries. It is the further prosecution case that P.W.1 noticed that as against the allotment order dated 29.11.1988 (Ext.25) and issue order dated 11.01.1989 (Ext.26), the appellant had lifted 27 quintals of rice on 17.01.1989 on acknowledging receipt in the log book and stock register vide entries Exts.12/1 and 13/1 respectively and indicated distribution of that stock in the rice sales register (Ext.14) at pages 11 to 17 in between 18th and 20th January 1989 at the flat rate of 10 or 15 kgs. to each of their consumers. Suspecting foul play, P.W.1 questioned the appellant for not collecting the signatures of the customers in the Atta sales register (Ext.11) and the appellant told P.W.1 to have disposed of the stock at Chatrapur on refusal of the customers to lift wheat flour and rice and at the behest of P.W.1, the appellant put down his said statement in writing upon Exts.11 and 14 by making the entries Exts.11/1 and 14/1 respectively. It is the further prosecution case that P.W.1 invited the attention of the appellant to the irregularities noticed concerning the distribution of sugar and the appellant made the statement dated 24.02.1989 (Ext.27) in his own hand that he had disposed of 32 quintals of sugar, 15 quintals of wheat and 8 quintals of wheat flour and 27 quintals of rice to the outsiders at Chatrapur, instead of distributing the same among the customers who were holding ration cards and manipulated the registers. On further scrutiny, P.W.1 noticed the entries vide Exts.9/3 and 5/3 made by the allotting authority i.e. B.D.O., Chatrapur on 22.02.1989 for keeping record of the irregularities after making the appellant to acknowledge that fact by endorsing upon Ext.5 in his own hand the endorsement i.e. Exts.5/3 and 5/4. P.W.1 took the registers, Exts.4 to 14 to his custody from the possession of the appellant and on contacting some of the consumers, whose names were appearing in the sugar sales registers vide Exts.6 and 7, he recorded their statements i.e. Exts.28 to 31, in addition to collecting their ration cards i.e. Exts.32 to 38 in support of their statements that they had never been supplied with the commodities as indicated in Exts.6 and 7. P.W.1 submitted the prosecution report (Ext.40) to the SubCollector, Chatrapur who in turn communicated the same under his office letter no.3011 dated 06.09.1989 (Ext.41) to the learned Special Judge, Berhampur. 3. P.W.1 submitted the prosecution report (Ext.40) to the SubCollector, Chatrapur who in turn communicated the same under his office letter no.3011 dated 06.09.1989 (Ext.41) to the learned Special Judge, Berhampur. 3. After receipt of the prosecution report, on 13.09.1989 the learned Special Judge, Berhampur took cognizance of offence under section 7 of the E.C. Act and issued process against the appellant. After the appellant appeared in the case, on 14.02.1990 the particulars of the offences as alleged in the prosecution report were stated to him, to which he pleaded not guilty. 4. During summary trial of the case, in order to prove its case, the prosecution examined three witnesses. P.W.1 Mohammed Habibulla, who was the Inspector of Civil Supplies attached to the establishment of the S.D.O., Chatrapur is the complainant in the case. As an Inspecting Officer, he visited the business premises of S.S.C. Society in which the appellant was the Secretary. Finding irregularities in the distribution of essential commodities, he submitted the prosecution report (Ext.40) against the appellant. P.W.2 Ram Swarup Agrawal was managing the business affair of M/s. Ramchandra Agrawal, Storage Agent, Chatrapur of the Orissa State Civil Supplies Corporation. He stated to have supplied sixteen quintals of sugar to the appellant on 11.01.1989 on his producing the order of the licensing authority vide Ext.16 and after collecting the signature of the appellant in sugar sales register (Ext.42) and further stated to have supplied sixteen quintals of sugar on 06.02.1989 on the strength of issue order dated 30.01.1989 (Ext.18). He further stated that on 11.01.1989, 31.01.1989 and 02.02.1989, on the basis of the issue orders vide Exts.20, 22 and 24, he supplied 24 quintals, 7 quintals and 8 quintals of wheat and wheat-product (flour) respectively to the appellant by making necessary endorsements in his register and collecting signatures of the appellant against the entries. He further stated that on 17.01.1989, he had supplied 27 quintals of rice to the appellant on the strength of issue order dated 11.01.1989 vide Ext.26 safter making necessary endorsement in the register and collecting the signatures of the appellant against the entries. P.W.3 Udayanath Panda is a consumer of the essential commodities under the S.S.C. Society in which the appellant was the Secretary. He stated that he always puts his signature and never puts his thumb impression upon any paper. P.W.3 Udayanath Panda is a consumer of the essential commodities under the S.S.C. Society in which the appellant was the Secretary. He stated that he always puts his signature and never puts his thumb impression upon any paper. He further stated that during November or December 1988 or during the succeeding two months, he had never been to the office of S.S.C. Society in order to lift control commodities but deputed his children to secure the required stock on his behalf. He further stated that no Inspector of Supplies had ever made any enquiry from him concerning supply of ration. He further stated that one officer had come to him and told him to put his signature on a paper in order to get rice and accordingly, he put his signature underneath the statement (Ext.31), which is a false statement to the effect that he had not lifted the stock of rice, wheat or sugar from November 1988 to February 1989 and that he had never lifted any sugar on 04.02.1989 as entered in Ext.6. The prosecution exhibited forty four documents. Ext.1 is the licence for sugar, Ext.2 is the licence for rice and paddy, Ext.3 is the licence for wheat and wheat products, Ext.4 is the sugar log book, Ext.5 is the sugar stock register, Ext.6 is the sugar sales register (2nd volume), Ext.7 is the sugar sales register (1st volume), Ext.8 is the wheat log book, Ext.9 is the wheat and flour stock register, Ext.10 is the wheat sales register, Ext.11 is the Atta sales register, Ext.12 is the rice log book, Ext.13 is the rice stock register, Ext.14 is the rice sales register, Ext.15 is the order of allotting authority dated 09.12.1988 for sugar, Ext.16 is the order of licensing authority dated 11.01.1989 for sugar, Ext.17 is the allotment order dated 11.01.1989 for sugar, Ext.18 is the issue order dated 30.01.1989 for sugar, Ext. 19 is the wheat allotment order dated 12.12.1988, Ext.20 is the wheat issue order dated 12.12.1988, Ext.21 is the allotment order dated 11.01.1989 for wheat, Ext.22 is the issue order dated 30.01.1989, Ext.23 is the allotment order for flour dated 20.01.1989, Ext.24 is the issue order for flour dated 30.01.1989, Ext.25 is the allotment order for rice, Ext.26 is the issue order dated 11.01.1989 for rice, Ext.27 is the statement of the appellant dated 24.02.1989, Ext.28 is the statement of Kora Behera dated 05.03.1989, Ext.29 is the statement of A.Dhanu Dora dated 05.03.1989, Ext.30 is the statement of Ram Ch. Panda dated 05.03.1989, Ext.31 is statement of Udayanath Panda dated 14.03.1989, Ext.32 is the ration card No.973, Ext.33 is the ration card No.12, Ext.34 is the ration card No.981, Ext.35 is the ration card No.3, Ext.36 is the ration card No.1147, Ext.37 is the ration card No.883, Ext.38 is the ration card No.528, Ext.39 is the seizure list, Ext.40 is the prosecution report, Ext.41 is the complaint, Ext.42 is the entry dated 11.01.1989 in the sugar sales register, Ext.42/1 is the entry dated 06.02.1989 in the sugar sales register, Ext.43 is the entry dated 11.01.1989 in wheat issue register, Ext.43/1 is the relevant entry at page 28 of the wheat issue register, Ext.43/2 is the entry dated 02.02.1989 at page 58 of the wheat issue register and Ext.44 is the entry dated 17.01.1989 in rice issue register. 5. The defence plea of the appellant was that he was functioning as the Secretary of S.S.C. Society and on the strength of the licenses Exts.1 to 3, he secured stocks of sugar, wheat, wheat flour and rice on behalf of the licensee for distribution under the public distribution system. 5. The defence plea of the appellant was that he was functioning as the Secretary of S.S.C. Society and on the strength of the licenses Exts.1 to 3, he secured stocks of sugar, wheat, wheat flour and rice on behalf of the licensee for distribution under the public distribution system. He pleaded that S.S.C. Society, which had taken the licence had passed the resolution vide Ext.A on 25.12.1987 to make supply of the essential commodities secured under the licences to the customers through the members of Board of Directors including D.W.1, the then Vice President and pursuant to such resolution, the members of the Board had been in the habit of taking charge of the stocks of essential commodities secured by him from the stockist under the issue order of the authority and after distributing those among the customers on making entries in the relevant registers by themselves, making over the price of the commodities sold to him from time to time on collecting receipts of payment from him, like Exts.B to B/b. It is further pleaded by the appellant that while such practice was continuing, his mother died and he remained on leave. During the period of his absence, the members of the Board of Directors transacted the business and during their term of engagement, all the mistakes were noticed by P.W.1 in the maintenance of the registers. It is further pleaded by the appellant that he was not directly responsible for the irregularities but the members of the Board of Directors were responsible and therefore, he had no personal accountability. He pleaded that the statements Exts.5/4 and 27 were involuntary statements and he had to put his signature thereupon under compulsion. The appellant in support of his defence plea examined one witness namely Ganga Sahu (D.W.1), Vice President of the S.S.C. Society who stated that the sale transactions in respect of the essential commodities were being directly entered into and transacted by the Managing Board of the Society under the supervision of the village committee always during the period of his office as Vice President. He further stated that the society had taken the licence in the name of the Secretary, but it was beyond the capacity of the Secretary alone to deal with the consumers for which the Managing Board was dealing with the matter directly by passing a resolution to that effect. He further stated that the society had taken the licence in the name of the Secretary, but it was beyond the capacity of the Secretary alone to deal with the consumers for which the Managing Board was dealing with the matter directly by passing a resolution to that effect. He further stated that the entries in Exts.6, 7, 10, 11, 13 and 14 were made in between 06.02.1989 to 16.02.1989 so also the entries made during that period were not in the handwriting of the appellant with which he was acquainted. The Board had engaged the local students to make entries during that period. The defence exhibited three documents. Ext.A is the resolution in the minute book, Exts.B, B/a and B/b are the receipts. 6. The learned trial Court after analysing the evidence on record has been pleased to hold that it cannot be said that the appellant had contravened the terms of the licence for rice and paddy vide Ext.2 and the licence for wheat and wheat products vide Ext.3 and as such the charges leveled against him for contravention of the wheat order and paddy order fails. The learned trial Court, however, held that the appellant cannot be absolved of the liability of contravention of 1963 Order despite the supporting evidence of D.W.1, as section 10(2) of the E.C. Act made him personally liable. It is further held that no credibility can be attached to the testimony of D.W.1 and once his testimony is taken out of consideration, the confessional statement of the appellant vide Ext.27 would come to prominence, which had been wholly written by the appellant and it could never have been the outcome of an unwilling, coerced mind being a free flowing one. It is further held that though stock of sugar to the tune of sixteen quintal was collected from P.W.2 on 06.02.1989, but in Ext.5, the appellant indicated the receipt of stock on 02.02.1989 and disposed of the whole of the stock on 2nd, 3rd and 5th of February 1989 by making entries in Ext.6 though by those dates the stock had not been received. It is further held that admission had been made by the appellant to the effect that the stock of sugar collected on 06.02.1989 had not been disposed of among the customers as reflected in the registers produced for inspection and Ext.6, the genuineness of which the appellant has not disputed, bears proof of it and accordingly, it was held that the charge for contravention of Clause 3 of the 1963 Order making him liable under section 7 of the E.C. Act stood established. The learned trial Court concluded that the appellant is guilty of the offence under sections 7 and 9 of the E.C. Act for contravention of Clause 3 of the 1963 order and also for maintenance of spurious accounts in Exts.5 and 6. 7. When the matter was called for hearing on 10.12.2020, no one appeared on behalf of the appellant to argue the appeal. Since this criminal appeal was pending for more than thirty years, Mr. Deba Prasad Das, Advocate who is having extensive practice on criminal law for more than thirty five years, both in the trial Court as well as before this Court was appointed as Amicus Curiae to conduct the case for the appellant and the Registry was directed to supply the paper book to Mr. Das by 14.12.2020 and to intimate him that the matter would be taken up for hearing in the week commencing from 11.01.2021. Accordingly, paper book was supplied to Mr. Das and he argued the matter on different dates commencing from 11.02.2021 and also filed the written notes of argument and citations. 8. Assailing the impugned judgment and order of conviction, Mr. Das, learned Amicus Curiae contended that the case was instituted on the basis of the prosecution report submitted by Inspector of Supplies which is not legally permissible in view of section 12-AA(1)(e) of the E.C. Act. He placed reliance on the decisions of this Court in the cases of Ranendra Kumar Swain and another -Vrs.- State of Orissa reported in Vol.59 (1985) Cuttack Law Times 324 and Hindustan Cycle Store and Others -Vrs.- State of Orissa reported in Vol.66 (1988) Cuttack Law Times 696. According to Mr. He placed reliance on the decisions of this Court in the cases of Ranendra Kumar Swain and another -Vrs.- State of Orissa reported in Vol.59 (1985) Cuttack Law Times 324 and Hindustan Cycle Store and Others -Vrs.- State of Orissa reported in Vol.66 (1988) Cuttack Law Times 696. According to Mr. Das, the learned trial Court has recorded the order of conviction mainly relying on two circumstances, i.e. (i) confessional statement of the appellant alleged to have been given in writing to the complainant vide Ext.27 and (ii) entries dated 02.02.1989, 03.02.1989 and 05.02.1989 made in the sugar sales register (Ext.6) regarding distribution of sugar to the consumers when the stocks were received only on 06.02.1989. He argued that the so-called statement under Ext.27 seems to be an involuntary one, as there was no earthly reason for the appellant to repose confidence on the complainant (P.W.1) to make such a statement before him even though it was in the hands of the appellant. He further submitted that the appellant has specifically pleaded in his accused statement as well as by questioning the complainant (P.W.1) that the confession had been obtained by putting pressure and therefore, the retracted confession without any corroboration whatsoever either direct or circumstantial regarding its voluntariness does not inspire confidence particularly when the appellant has been acquitted of the charges for contravention of the wheat order and paddy order in spite of the alleged confession. He placed reliance in the case of Sakharam Shankar Bansode -Vrs.- State of Maharashtra reported in A.I.R. 1994 S.C. 1594 and S. Arul Raja -Vrs.- State of Tamil Nadu reported in (2010) 8 Supreme Court Cases 233. Mr. Das further argued that in order to hold the appellant guilty, the learned trial Court has placed reliance on Ext.42/1, which is the entry dated 06.02.1989 in the sugar sale register of the storage agent (P.W.2) but the prosecution has not proved the entries dated 03.02.1989 to 05.02.1989 regarding disposal of the sugar in Ext.6 to be in the hands of the appellant. It was incumbent upon the prosecution to prove those entries in accordance with law through competent persons acquainted with the handwritings of the appellant and also by obtaining handwriting expert's opinion. It was incumbent upon the prosecution to prove those entries in accordance with law through competent persons acquainted with the handwritings of the appellant and also by obtaining handwriting expert's opinion. The consumers having not been examined to prove that they have not received the commodities in spite of entries in the concerned register in their names and in view of the evidence of only one consumer who has been examined as P.W.3 that he has received the wheat, sugar and rice, it is very difficult to sustain the charges. Though it is alleged by the prosecution that the entries dated 03.02.1989 to 05.02.1989 in Ext.6 was wrong/false and that there was no supply of commodities on those dates, but there is no legally acceptable evidence in that respect except surmises and suppositions. He argued that the entry dated 02.02.1989 (Ext.5/2) in the sugar stock register (Ext.5) has not been proved to be the handwritings of the appellant in accordance with law and the same has been proved by P.W.1, who had no prior acquaintance with the handwritings of the appellant. According to Mr. Das, the learned trial Court disbelieved the evidence adduced by D.W.1, the Vice President of S.S.C. Society on flimsy grounds. It is further argued by Mr. Das that the conviction of the appellant as the Secretary of the S.S.C. Society without arraigning S.S.C. Society as an accused in the case and without any finding by the learned trial Court that there has been a contravention of Clause 3 of the 1963 order by the S.S.C. Society, is not legally permissible in view of section 10 of the E.C. Act. He placed reliance in the cases of The United Puri Nimapara Central Co-operative Bank Ltd., Puri -Vrs.-Prafulla Kumar Mishra reported in Vol.55 (1983) Cuttack Law Times 489, State of Madras -Vrs.- C.V. Parekh and Ors. reported in (1970) 3 Supreme Court Cases 491, Aneeta Hada and others -Vrs.- Godfather Travels and Tours Pvt. Ltd. reported in (2012) 5 Supreme Court Cases 661, Himanshu -Vrs.- B. Shivamurthy and Ors. reported in (1970) 3 Supreme Court Cases 491, Aneeta Hada and others -Vrs.- Godfather Travels and Tours Pvt. Ltd. reported in (2012) 5 Supreme Court Cases 661, Himanshu -Vrs.- B. Shivamurthy and Ors. reported in (2019) 3 Supreme Court Cases 797, Hindustan Unilever Limited -Vrs.- The State of Madhya Pradesh reported in (2020) 10 Supreme Court Cases 751, Odisha Mining Corporation Ltd. -Vrs.- State of Odisha reported in 2019 (II) Orissa Law Reports 623 and contended that the conviction of the appellant is wholly unwarranted, grossly erroneous and liable to be set aside. 9. Mr. Deepak Kumar Pani, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and contended that in view of the notification dated 05.11.1986 of the Food & Civil Supplies Department, State of Odisha, Inspectors of Supplies have been authorised to exercise the powers under section 12-AA(1)(e) of the E.C. Act within State of Odisha and therefore, there is no illegality in the institution of the case on the basis of the prosecution report submitted by P.W.1. According to him, since the aforesaid notification dated 05.11.1986 was not in existence, in the factual scenario, in the cases of Ranendra Kumar Swain (supra) and Hindustan Cycle Store (supra), the same could not be considered. He argued that P.W.1 has specifically stated that the appellant in his own hand wrote the statement (Ext.27) admitting to have disposed of sugar, wheat, wheat flour and rice to the outsiders at Chatrapur instead of distributing the same among the customers, who were holding ration cards and manipulated the accounts borne by the registers. According to Mr. Pani, nothing has been elicited in the cross-examination of P.W.1 to doubt the voluntariness of such statement (Ext.27) and therefore, merely because the confessional statement has been retracted, the same cannot be a ground to disbelieve the evidence of P.W.1. He argued that when as a matter of fact, the appellant received the stock of sugar from P.W.2 on 06.02.1989, the entries in the Sugar sales register (Ext.6) that the sugar was sold in between 3rd to 5th February 1989 are apparently false as it is difficult to reconcile Exts.5 and 6. He argued that when as a matter of fact, the appellant received the stock of sugar from P.W.2 on 06.02.1989, the entries in the Sugar sales register (Ext.6) that the sugar was sold in between 3rd to 5th February 1989 are apparently false as it is difficult to reconcile Exts.5 and 6. He argued that when the documentary evidence clearly indicates that the appellant has committed contravention of Clause 3 of the 1963 order and he is solely responsible for the irregularities being the Secretary, merely because S.S.C. Society was not arrayed as an accused in the case, the appellant cannot be allowed to go scot-free. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Sheoratan Agarwal and another -Vrs.- State of Madhya Pradesh reported in (1984) 4 Supreme Court Cases 352. 10. Adverting to the contentions raised by the learned counsel for the respective parties, let me deal with the issues point-wise. Whether institution of the case on the basis of the prosecution report of P.W.1 was legally permissible: The Parliament inserted provision under section 12-AA of the E.C. Act by Act No.18 of 1981 (w.e.f. 01.09.1982). The said provision was later on amended by the Parliament by Act No.42 of 1986 (w.e.f. 09.09.1986). After the aforementioned amendment, as on the date of institution of this case, section 12-AA(1)(e) of the E.C. Act read as follows:- '12-AA. Offences triable by Special Courts- Notwithstanding anything contained in the Code- xx xx xx xx xx (e) A Special Court may, upon a perusal of police report of the facts constituting an offence under this Act (or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf by Government concerned) take cognizance of the offence without the accused being committed to it for trial.' The Special Court was constituted for the purpose of summary trial of the offender and for that purpose, special procedures were provided for in place of the procedure laid down under the Code of Criminal Procedure. The object of amendment was to deal more effectively with persons indulging in hoarding, black marketing of, and profiteering, in any essential commodities and the evils of vicious inflator prices and for matters connected therewith or incidental thereto. The object of amendment was to deal more effectively with persons indulging in hoarding, black marketing of, and profiteering, in any essential commodities and the evils of vicious inflator prices and for matters connected therewith or incidental thereto. In terms of section 12-AA(1)(e) of the E.C. Act, the Special Court has been conferred with a power to take cognizance of offence upon perusal of a police report of the facts constituting an offence or upon a complaint made by an officer of the Central Government or a State Government authorised in that behalf by the Government concerned. The provision contained under section 12-AA(1)(e) of the E.C. Act would prevail over the general provision as contained in section 11 of the said Act which deals with cognizance of offence by the Court. It is now well known that where in a statute, there exists both special provision and general provision, the special provision prevails over a general provision in view of the principles expressed in the maxim 'Generalia Specialibus Non-Derogant'. Therefore, when the prosecution intends to invoke the special procedure laid down under section 12-AA of the E.C. Act, the same can be taken recourse to, only if the conditions precedent in respect thereof are fulfilled, namely, either a police report is submitted of the facts constituting an offence under the E.C. Act or a complaint petition is filed by an officer specially empowered in this behalf either by Central Government or by the State Government. By virtue of the notification dated 05.11.1986 of the Food & Civil Supplies Department, State of Odisha, Inspectors of Supplies were authorised to exercise the powers under section 12-AA(1)(e) of the E.C. Act within State of Odisha. In the case of Ranendra Kumar Swain (supra) cited by the learned Amicus Curiae, the order of cognizance dated 17.09.1984 taken by learned Special Judge, Cuttack under section 7 of the E.C. Act on the basis of a report submitted by the Inspector of Supplies was under challenge. This Court held that learned Special Judge has no jurisdiction to take cognizance on the basis of the report/complaint submitted by the Inspector of Supplies, since the report of the Inspector of Supplies cannot be equated with a 'police report' as contemplated in section 12-AA(1)(e) of the Act and accordingly quashed the cognizance order. This Court held that learned Special Judge has no jurisdiction to take cognizance on the basis of the report/complaint submitted by the Inspector of Supplies, since the report of the Inspector of Supplies cannot be equated with a 'police report' as contemplated in section 12-AA(1)(e) of the Act and accordingly quashed the cognizance order. In the case of Hindustan Cycle Store (supra) cited by the learned Amicus Curiae, the order of cognizance dated 09.05.1985 taken by Magistrate for commission of offence under the E.C. Act was under challenge. This Court held that during the subsistence of the Special Provisions Act, wherein Special Courts were constituted by the State Government in exercise of power conferred under sub-section (1) of section 12-A of the E.C. Act, cognizance can be taken only on a police report under section 12-AA(1)(e) of the Act and not otherwise and accordingly quashed the cognizance order. Thus, in the factual scenario of the aforesaid two cases, it is clear that the amendment made by the Parliament by Act No.42 of 1986 (w.e.f. 09.09.1986) to section 12-AA(1)(e) of the E.C. Act had not come into force whereby 'or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf by Government concerned' was inserted and obviously the notification dated 05.11.1986 of the Food & Civil Supplies Department, State of Odisha authorising the Inspectors of Supplies to exercise the powers under section 12-AA(1)(e) of the E.C. Act within State of Odisha was also not there. Therefore, the aforesaid two decisions of this Court no way help the appellant to substantiate that the institution of the case on the basis of the prosecution report of P.W.1 was legally impermissible. In view of the foregoing discussions, no fault can be found with P.W.1, the Inspector of Supplies, Block Office, Chatrapur in submitting the prosecution report (Ext.40) to the Sub-Collector, Chatrapur who in turn communicated the same under his office letter no.3011 dated 06.09.1989 (Ext.41) to the learned Special Judge, Berhampur, after receipt of which, the learned Special Judge, Berhampur took cognizance of offence under section 7 of the E.C. Act as per order dated 13.09.1989 and issued process against the appellant. Whether statement of the appellant in writing vide Ext.27 can be acted upon: P.W.1 has stated that when he cornered the appellant for making repeated sales in favour of individual customers, the appellant in his own hand wrote out the statement, Ext.27, admitting to have disposed of thirty two quintals of sugar, fifteen quintals of wheat, eight quintals of wheat flour and twenty seven quintals of rice to outsiders at Chatrapur instead of distributing the same among the customers, who had been holding ration cards and manipulate his accounts borne by the registers. P.W.1 further stated that Ext.27 is in the handwriting of appellant and also bears the signature of the appellant in it. In the cross-examination, P.W.1 denied the suggestion given by the defence counsel that he had compelled the appellant to make the statement Ext.27. In the accused statement, the appellant stated that by putting pressure, P.W.1 had snatched away the statement. Except P.W.1, no one has stated about such statement (Ext.27) given by the appellant voluntarily. The statement which is dated 24.02.1989 does not indicate in whose presence it was written or handed over to P.W.1. It was only forwarded to Court with the prosecution report on 13.09.1989. In the case of Bheru Singh -Vrs.- State of Rajasthan reported in (1994) 2 Supreme Court Cases 467, it is held that a confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. In the case of Nazir Khan and Ors. -Vrs.- State of Delhi reported in (2003) 8 Supreme Court Cases 461, it is held that confession is a species of admission. A confession cannot be used against an accused unless the Court is satisfied that it was voluntary. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. In section 17 of the Indian Evidence Act, 1872, admission has been defined to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, mentioned in the subsequent sections 18 to 21. An oral or documentary statement made by a party or his authorised agent, suggesting any inference as to any fact in issue or relevant fact may be proved against the party to the proceeding or his authorised agent as 'admission'; but apart from exceptional cases (as contained in section 21), such a statement cannot be proved by or on their behalf. In the case of Pakala Narayana Swami -Vrs.-Emperor reported in A.I.R. 1939 PC 47, it is held that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. In the case of Central Bureau of Investigation -Vrs.- V.C. Shukla and Ors. reported in (1998) 3 Supreme Court Cases 410, it is held that only voluntary and direct acknowledgement of guilt is a 'confession' but when a confession falls short of actual admission of guilt, it may nevertheless be used as evidence against the person who made it or his authorised agent as an 'admission' under section 21 of the Evidence Act, provided that it suggests an inference as to any fact which is in issue or relevant fact to the case. In the case of Bharat -Vrs.- State of U.P. reported in (1971) 3 Supreme Court Cases 950, it is held as follows:- '7... Confessions can be acted upon if the Court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. Confessions can be acted upon if the Court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A Court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the Court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the Courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the Accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true.' In the case of Sakharam Shankar Bansode (supra), it is held that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. In the case of S. Arul Raja (supra), it is held that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the Courts to ascertain the truthfulness of the confession. In the case of S. Arul Raja (supra), it is held that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the Courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extra-judicial confession. Before the Court proceeds to act on the basis of an extra-judicial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered along with the two rules of caution. First, whether the evidence of confession is reliable and second, whether it finds corroboration. When P.W.1 has himself stated to have obtained Ext.27 after cornering the appellant and there is no independent corroboration to the evidence of P.W.1 as to under which circumstances it was made and the manner in which it was made, it casts a doubt on the voluntariness and it is very difficult to accept that it flows from the highest sense of guilt. It has not been proved that the appellant had made the entries on different dates (17.01.1989, 31.01.1989, 02.02.1989, 06.02.1989) in the concerned registers as mentioned in Ext.27. The appellant has been acquitted of the charges for contravention of the wheat order and paddy order in spite of the same being mentioned in Ext.27. The view taken by the learned trial Court that Ext.27 could never have been the outcome of an unwilling, coerced mind being a free flowing one is very difficult to be accepted. Therefore, judged in the context of the entire prosecution case, I am of the humble view that no implicit reliance can be placed on Ext.27. Whether charge for contravention of Clause 3 of the 1963 Order is successfully established by prosecution: Apart from the statement of the appellant vide Ext.27, the learned trial Court held that though stock of sugar to the tune of sixteen quintal was collected from P.W.2 on 06.02.1989 as per entry made in sugar log book vide Ext.4/2, but its receipt had been shown on 02.02.1989 in the sugar stock register (Ext.5) and the whole of the stock was shown to have been disposed of in between 3rd February 1989 to 5th of February 1989 in the sugar sales register (Ext.6) though by those dates, the stock had not been received. Accordingly, it was held that the stock of sugar had not been disposed of among the customers as shown in Ext.6 and that the charge for contravention of Clause 3 of the 1963 Order making the appellant liable under section 7 of the E.C. Act stood established. Since I have already held that no implicit reliance can be placed on Ext.27, let me analyse whether the other materials on record substantiate the charge. Though receipt of stock of sugar to the tune of sixteen quintal on 06.02.1989 from P.W.2 as per entry in the sugar log book vide Ext.4/2 and entry of the receipt in the sugar stock register of the S.S.C. Society vide Ext.5 are not in dispute but as rightly pointed out by the learned Amicus Curiae, the prosecution has not proved the entries dated 03.02.1989 to 05.02.1989 made in the sugar sales register (Ext.6) regarding disposal of the sugar were in the hands of the appellant. The prosecution was duty bound to prove in accordance with law that the entries dated 03.02.1989 to 05.02.1989 in Ext.6 were made by the appellant through competent persons acquainted with the handwritings of the appellant and also by obtaining handwriting expert's opinion. It is specifically pleaded by the appellant during the relevant period, his mother died and he remained on leave and during the period of his absence, the members of the Board of Directors transacted the business and maintained the registers and the mistakes noticed by P.W.1 in the maintenance of the registers were during the said period. It is not disputed by the prosecution that the appellant was on leave during the relevant period on account of death of his mother. D.W.1 has specifically stated that the appellant had deposited sixteen quintal of sugar on 06.02.1989 with the Board of Directors for distribution and that the entries in Ext.6 were not in the handwriting of the appellant with which he was acquainted. The evidence of P.W.1 that in Ext.6, the appellant had shown to have sold sugar to the card holders is very difficult to be accepted as neither he was present when the entries were made nor he has stated to be acquainted with the handwritings of the appellant. Law is well settled that there should be no differentiation of evaluation of a witness's testimony depending on the party who calls him. Law is well settled that there should be no differentiation of evaluation of a witness's testimony depending on the party who calls him. Both the witnesses for the prosecution and defence must be treated equally in dealing with evaluation of their evidence, except the case of an accused as a witness, for he is protected by several rules in relation to limits of his cross-examination. I am of the humble view that the evidence of D.W.1 has been wrongly rejected by the learned trial Court. The consumers have not been examined to prove that they have not received any sugar in spite of entries in the concerned register Ext.6 in their names. The evidence of one consumer who has been examined as P.W.3 is that he has received the wheat, sugar and rice. Thus, when entries dated 03.02.1989 to 05.02.1989 in Ext.6 regarding disposal of the sugar were not proved to be the handwritings of the appellant, it cannot be said that the prosecution has successfully established the charge for contravention of Clause 3 of the 1963 Order against the appellant. Whether conviction of the appellant as Secretary of the S.S.C. Society without arraigning S.S.C. Society as an accused was legally permissible in view of section 10 of the E.C. Act: Mr. Das, learned Amicus Curiae contended that the conviction of the appellant as the Secretary of the S.S.C. Society without arraigning S.S.C. Society as an accused in the case and without any finding by the learned trial Court that there has been a contravention of Clause 3 of the 1963 order by the S.S.C. Society, is not legally permissible in view of section 10 of the E.C. Act. Mr. Pani, learned Addl. Standing Counsel on the other hand contended that the appellant has committed contravention of Clause 3 of the 1963 order and therefore, he is solely responsible for the irregularities being the Secretary and merely because S.S.C. Society was not arrayed as an accused in the case, it cannot be said that the prosecution of the appellant was not legally permissible. Learned trial Court held that the appellant cannot be absolved of the liability of contravention of 1963 order as section 10(2) of the E.C. Act made him personally liable. Section 10 of the Essential Commodities Act, 1955 reads as follows:- 10. Learned trial Court held that the appellant cannot be absolved of the liability of contravention of 1963 order as section 10(2) of the E.C. Act made him personally liable. Section 10 of the Essential Commodities Act, 1955 reads as follows:- 10. Offences by companies- (1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this subsection shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in Subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purpose of this section,- (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. Adverting to the contentions raised by both the parties, at this stage, it would be profitable to first discuss whether S.S.C. Society would come within the definition of 'company' as explained under Explanation (a) to section 10 of the E.C. Act. S.S.C. Society was a society registered under the Orissa Co-operative Societies Act, 1962. The prosecution report states that the Secretary, S.S.C. Society was appointed as retailer for distribution of the control commodities under public distribution system among the consumers tagged to the Society by the Sub-Divisional Officer, Chatrapur. D.W.1, the Vice President of S.S.C. Society has stated that the Society had taken license to deal with sugar, rice, wheat and fertilizers for the sake of the local community. The Society had taken the license in the name of the Secretary. D.W.1, the Vice President of S.S.C. Society has stated that the Society had taken license to deal with sugar, rice, wheat and fertilizers for the sake of the local community. The Society had taken the license in the name of the Secretary. The Managing Board was dealing with the consumers directly by passing a resolution. In the case of The United Puri Nimapara Central Co-operative Bank Ltd. (supra), Hon'ble Justice R.N. Mishra, the then Chief Justice held that a Co-operative Society was not a statutory body as it was neither created by a statute nor owned its existence to any statute. It was like any company under the Companies Act. In the case of Ahalya Nayak and Ors. -Vrs.- State of Orissa reported in Vol.66 (1988) Cuttack Law Times 688, it is held that the Drugs and Cosmetics Act, 1940 makes provision under section 34 as to the persons liable for prosecution when an offence is committed by a company and in the explanation thereto "company" has been explained to mean, a body corporate and includes a firm or other association of individuals and thus undoubtedly a co-operative society would be included in the term 'company', since section 9 of the Orissa Cooperative Societies Act, 1962 specifically provides a society to be a body corporate having perpetual succession and a common seal. Section 9 of the Orissa Co-operative Societies Act, 1962 states, inter alia, that a Co-operative Society registered under the Act shall be a body corporate by the name under which it is registered having perpetual succession and a common seal, and with power to enter into contracts, institute and defend suits and other legal proceedings and do all things necessary for the purpose for which it was constituted. Under Explanation (a) to section 10 of the E.C. Act, "company", inter alia, means any body corporate. In view of such meaning given in the Explanation (a), S.S.C. Society comes within the meaning of 'company'. Now, let me discuss certain citations to answer the issue whether without arraigning S.S.C. Society as an accused, conviction of the appellant as Secretary of the Society was legally permissible. In view of such meaning given in the Explanation (a), S.S.C. Society comes within the meaning of 'company'. Now, let me discuss certain citations to answer the issue whether without arraigning S.S.C. Society as an accused, conviction of the appellant as Secretary of the Society was legally permissible. The State of Madras filed an appeal by special leave challenging the order of acquittal passed against two respondents, C. V. Parekh and A. C. Parekh by the High Court of Madras of the charge under Section 120-B of the Indian Penal Code read with Sections 7 and 8 of the Essential Commodities Act, 1955 and Clause (5) of the Iron and Steel Control Order after applying Section 10 of the Essential Commodities Act, in the case of State of Madras -Vrs.- C.V. Parekh and Ors. reported in (1970) 3 Supreme Court Cases 491, a three-Judge Bench of the Hon'ble Supreme Court held that the first condition for the applicability of section 10 of the Essential Commodities Act is to the effect that the person contravening the order must be a company itself. There is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron & Steel (Control) Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in the case, there is no evidence and no finding that the Company contravened clause (5) of the Iron & Steel (Control) Order, the two respondents could not be held responsible. The acquittal of the respondents was held to be fully justified. Since, in the case, there is no evidence and no finding that the Company contravened clause (5) of the Iron & Steel (Control) Order, the two respondents could not be held responsible. The acquittal of the respondents was held to be fully justified. Though the decision of C.V. Parekh (supra) was noticed by the Hon'ble Supreme Court in the case of Sheoratan Agarwal (supra), but analysing the provision under section 10 of the Essential Commodities Act, a two-Judge Bench of the Hon'ble Supreme Court held that if the contravention of the order made under section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom for short, it shall be described as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed i.e. the officer of the company. Any one or more or all of them may be prosecuted and punished. The Company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the Company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the Company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under section 3 of the E.C. Act. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity, it must be established that there has been a contravention of the order by the company. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity, it must be established that there has been a contravention of the order by the company. Both the decisions i.e. C.V. Parekh (supra) and Sheoratan Agarwal (supra) were discussed by a three-Judge Bench of the Hon'ble Supreme Court in the case of Aneeta Hada (supra) while analysing Section 141 of the Negotiable Instruments Act, 1881 which is in pari materia with section 10 of the Essential Commodities Act, 1955 and it was held as follows:- '47. With greatest respect to the learned Judges in Sheoratan Agarwal (supra), the authoritative pronouncement in C.V. Parekh (supra) has not been appositely appreciated. The decision has been distinguished despite the clear dictum that the first condition for the applicability of Section 10 of the 1955 Act is that there has to be a contravention by the company itself. In our humblest view, the said analysis of the verdict is not correct. Quite apart, the decision in C.V. Parekh (supra) was under Section 10(a) of the 1955 Act and rendered by a three-Judge Bench and if such a view was going to be expressed, it would have been appropriate to refer the matter to a larger Bench. However, the two-Judge Bench chose it appropriate to distinguish the same on the rationale which we have reproduced hereinabove. We repeat with the deepest respect that we are unable to agree with the aforesaid view. xx xx xx xx xx 51. We have already opined that the decision in Sheoratan Agarwal (supra) runs counter to the ratio laid down in the case of C.V. Parekh (supra) which is by a larger Bench and hence, is a binding precedent. xx xx xx xx xx 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled.' The ratio laid down in the case of Aneeta Hada (supra) was followed by the Hon'ble Supreme Court in the case of Himanshu (supra) and it was held as follows:- '12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf.' In the case of Odisha Mining Corporation Ltd. (supra), while discussing the provision under section 16 of the Environment Protection Act, 1986 which deals with 'offences by companies', I have held as follows:- '6....In none of the complaint petitions, the company has been arrayed as accused. Keeping in view the ratio laid down in the case of Aneeta Hada (supra) and section 16 of the 1986 Act, I am of the humble view that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in section 16 of the 1986 Act which clearly speaks of commission of offences by the companies. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in section 16 of the 1986 Act which clearly speaks of commission of offences by the companies. The words "as well as the company" used in subsection (1) of section 16 does not mean that a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. Applying the doctrine of strict construction, I am of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be held vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against the company, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. Therefore, without arraigning of the company as an accused, the prosecution is not maintainable against the other categories of offenders who were working in the company in different capacities on the touchstone of vicarious liability.' In the case of Hindustan Unilever Limited (supra), while discussing the provision under section 17 of the Prevention of Food Adulteration Act, 1954 which deals with 'offences by companies', a three-Judge Bench of the Hon'ble Supreme Court following the ratio laid down in the case of Aneeta Hada (supra) held as follows:- '23. Clause (a) of Sub-section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under Clause (b) of sub-section (1) of Section 17 of the Act. Clause (a) of Sub-section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under Clause (b) of sub-section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the company as well as the nominated person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the company, the nominated person cannot be convicted or vice versa.' In view of the foregoing discussions, I am of the considered opinion that commission of offence by the company i.e. S.S.C. Society is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in section 10 of the E.C. Act make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be held vicariously liable for the offence subject to the averments in the prosecution report and proof thereof. Therefore, without arraigning of the S.S.C. Society as an accused, the prosecution is not maintainable against the appellant as Secretary and without any finding by the learned trial Court that there has been a contravention of Clause 3 of the 1963 order by the S.S.C. Society, the conviction of the appellant as Secretary is not sustainable. 11. Therefore, without arraigning of the S.S.C. Society as an accused, the prosecution is not maintainable against the appellant as Secretary and without any finding by the learned trial Court that there has been a contravention of Clause 3 of the 1963 order by the S.S.C. Society, the conviction of the appellant as Secretary is not sustainable. 11. Accordingly, when no implicit reliance can be placed on the statement of the appellant (Ext.27) and the relevant entries in Ext.6 regarding disposal of the sugar to the consumers were not proved to be in the handwritings of the appellant and since in the case, S.S.C. Society has not been arraigned as an accused and in absence of any finding that there has been a contravention of Clause 3 of the 1963 order by the S.S.C. Society, I am of the humble view that the guilt of the appellant has not been established beyond reasonable doubt and therefore, the impugned judgment and order of conviction of the appellant under sections 7 and 9 of the E.C. Act and the sentence passed thereunder is wholly unwarranted, grossly erroneous and the same is hereby set aside. The appellant is acquitted of all such charges. Accordingly, the Criminal Appeal is allowed. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to the learned Amicus Curiae Mr. Deba Prasad Das for rendering his valuable help and assistance in deciding this criminal appeal which was pending before this Court for more than thirty years. The hearing fees is assessed to Rs.10,000/- (rupees ten thousand) in toto which would be paid to the learned Amicus Curiae immediately.