Orissa High Court
973) vs State Of Orissa on 18 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.158 of 2000
(In the matter of an appeal under Section 374 of the Code of Criminal Procedure,
1973)
Amar Kumar Patra ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Ms. Soma Nanda, Amicus Curiae
For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025
S.S. Mishra, J. The present Criminal Appeal is arising out of the
Judgment of conviction and order of sentence dated 29.06.2000 passed
by the learned 1st Additional Sessions Judge-cum-Special Judge under
the Essential Commodities Act, Berhampur in 2(c) C.C. No.1 of 93/T.R.
No.18 of 96, whereby the learned Court below finding the appellant
guilty of the offence punishable under Section 7(1)(a)(i) of the EssentialCommodities Act has sentenced him to undergo Rigorous Imprisonment
for three months and to pay fine of Rs.500/- (Rupees five hundred), in
default, to further undergo Rigorous Imprisonment for another fifteen
days.
2. This appeal was preferred by the appellant on 17.07.2000 and
since then, the appeal is pending. When the matter was called for
hearing, Mr. Anshuman Roy, Advocate appeared for Mr. D.P. Dhal,
learned Senior Advocate and submitted that this is a very old matter and
there is no instruction on behalf of the appellant. In that scenario, he
seeks discharge from the matter. However, this Court requested Ms.
Soma Nanda, Advocate to assist the Court in the capacity of the Amicus
Curiae to which she has readily agreed and rendered very effective
assistance in disposal of the appeal. This Court records appreciation for
the valuable assistance rendered by Ms. Soma Nanda, Amicus Curiae.
3. Heard Ms. Soma Nanda, learned Amicus Curiae appearing on
behalf of the appellant and Mr. Sarathi Jyoto Mohanty, learned
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Additional Standing Counsel appearing on behalf of the Respondent-
State.
4. The prosecution case in terse and brief is that the appellant was the
sub-wholesaler licensee from 31.12.1985 up till 31.12.1989 issued by the
Collector, Ganjam. The Inspector of Supplies, P.W.8 the complainant on
09.04.1990 verified the Stock Register in the shop of the appellant and
found that except five numbers of empty barrels, no kerosene oil stock
was there. The appellant was supposed to have 400 litres of kerosene oil
in his possession as per the Stock Register. It was also discovered by
P.W.8 that the appellant had not maintained the Sales Register and Stock
Register for the period from 01.04.1989 to 31.03.1990. It is, therefore,
alleged on verification that the appellant had misappropriated 26,600
litres of kerosene oil between the period from 01.04.1989 till 09.04.1990.
Since the appellant has violated the condition nos.4 and 8 of the license
granted under the Odisha Kerosene Oil Control Order, 1962 issued to
him by the Collector, he was subjected to prosecution under Section 7 of
the Essential Commodities Act.
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5. The prosecution examined nine witnesses besides relying upon
numerous documents. P.Ws.1, 2, 3, 4, 6 and 7 were the witnesses who
were the retailers under the appellant those who are supposed to receive
the kerosene oil from the appellant to sell in the retail market to the
consumers. P.W.5 was the seizure witness of the empty barrels. P.W.8 is
the Supply Inspector, who is the complainant in the case whereas P.W.9
is the Supply Supervisor who accompanied P.W.8 at the time of
verification of the stock.
6. The evidence of all the witnesses are consistent. They have
deposed in unison to support the prosecution story against the appellant.
The learned trial Court meticulously dealt with the material on record
and arrived at the following findings:
“6. Since there is clear finding that the accused violated
Condition No.4 of the license, he is liable for punishment under
Sec.7 of the E.C. Act as the order and the license are deemed to
have been issued under Sec.3 thereof. Any violation of Sec.3 is
made punishable under Sec.7 of the Act. So, the accused cannot
have any escape.
7. It is of-course true that mere non-maintenance of the
registers would not call-for any punishment if the same is duly
and reasonably explained, otherwise by application of Sec.10-C
of the Act, the culpable mental state of the accused is a matter of
presumption. Unless explained properly and proved by
supporting evidence, such mental culpability is a matter ofPage 4 of 11
presumption. In the instant case, in addition to the above, I may
say that by the evidence of the retailers, i.e., P.Ws. 1, 2, 3, 4, 6
and 7, it is transparently clear that they did not lift any kerosene
oil from the accused though shown to have lifted the same on
different dates. P.W.8, the Inspector of Supplies has taken the
trouble of cross-checking the Log books of the retailers with that
of the sub-wholesaler, the accused.
8. Under the above evidence, and the position of law, I find the
accused guilty of not maintaining the stock and sales registers
properly with malafide intention to make foul play with the
kerosene oil with a culpable mentality.”
7. The appellant is aggrieved by the aforementioned finding resulted
in the conviction and sentence and has filed the present appeal.
8. Ms. Nanda, learned Amicus Curiae appearing on behalf of the
appellant submitted that the evidence of the prosecution witnesses are
not trustworthy and being contradictory to each other is not reliable. He
further submitted that the license granted to the appellant to deal with the
kerosene oil was suspended by the Assistant Civil Supplies Officer
during the intervening time. Therefore, there was no occasion for the
appellant to have the possession of the kerosene oil as stated by P.W.8. It
is also contended by the learned Amicus Curiae that at the time of the
alleged incident, the appellant was about 36 years of age. The incident
had taken place in the year 1990. 35 years has already elapsed in
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between. At present, the appellant is in his late seventies. There is no
record of any other offences, which suggests that the appellant has a
clean antecedent. In that view of the matter, the learned Amicus Curiae
submitted that in the event, this court declined to allow the appeal, at-
least the appellant should be extended the benefit of the Probation of
Offenders Act.
9. Learned counsel for the State, on the other hand, has read out the
evidence of the witnesses in extenso and submitted that the unshaken
testimony of all the witnesses, if read conjointly, the conclusion drawn
by the learned trial Court is justified and no interference is called for.
10. I have carefully gone through the trial court records and also
taken into consideration the contention of learned counsel for both the
parties. It is evident from the record that on 09.04.1990, the Inspector of
Supplies, the Assistant Civil Supplies Officer along with the Supervisor
of the District Civil Supplies Office visited the premises of the appellant,
who was the kerosene oil sub-wholesale dealer operating from
Santoshpur in the district of Ganjam to verify the stock of accounts of
the kerosene oil. On their visit, they found that, there was only five
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numbers of empty barrels lying in the wholesale shop. Therefore, they
immediately rushed to the residence of the appellant to verify the books
of accounts. The appellant produced the Stock and Sale Register of the
kerosene oil maintained from 01.04.1990. On verification of the stock
Register, it was found that there was balance of 400 litres of kerosene oil
as on 07.04.1990 closing, but they physically found no stock of kerosene
oil at his depot at Santoshpur except five numbers of empty barrels.
Therefore, there was shortage of 400 litres of kerosene oil at the depot.
Necessary seizure was made and further verification was done.
Eventually, it was found that the appellant has pilferaged 26,600 litres of
kerosene oil.
11. P.Ws.8 and 9 have unequivocally deposed the aforementioned
facts and the independent six retailers have also stated that they have not
received any kerosene stock from the appellant. In so far as seizure of
five empty barrels is concerned, P.W.5 has proved the same. All the
witnesses have sustained extensive and elaborate cross-examination. But
nothing could be elucidated to create a doubt on the prosecution version.
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Hence, the learned trial Court has rightly recorded the finding as
reproduced.
12. I am in complete agreement with the findings of the learned trial
Court that the prosecution has proved its case beyond all reasonable
doubt. Hence, the conviction recorded by the learned trial Court against
the appellant on the charge under Section 7(1)(a)(i) of the E.C. Act
stands confirmed.
13. Learned trial Court has sentenced the appellant to undergo R.I.
for three months and to pay fine of Rs.500/- (Rupees five hundred), in
default, to undergo R.I. of fifteen days. The learned Amicus Curiae is
right in pointing out that the appellant is in his seventies. It is obvious
that the appellant is settled in life with his family. The learned Amicus
Curiae further submitted that the appellant has no criminal antecedents
and no other case of a similar nature or otherwise is stated to be pending
against him. Over the years, he has led a dignified life, integrated well
into society, and is presently leading a settled family life. Incarcerating
him after such a long delay, it is argued, would serve little penological
purpose and may in fact be counter-productive, casting a needless stigma
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not only upon him but also upon his family members, especially when
there is no suggestion of any repeat violation or ongoing non-compliance
with regulatory norms. Therefore, the appellant is entitled to the benefit
of Probation of Offenders Act.
14. Taking into consideration the entire conspectus of the matter, it
would be apt to rely on the judgment of Hon’ble Supreme Court in
Tarak Nath Keshari V. State of West Bengal1, which is akin to the facts
of the present case. It is held thus: –
“11. Even if there is minimum sentence provided in
Section 7 of the EC Act, in our opinion, the appellant is
entitled to the benefit of probation, the EC Act, being of the
year 1955 and the Probation of Offenders Act, 1958 being
later. Even if minimum sentence is provided in the EC Act,
1955 the same will not be a hurdle for invoking the
applicability of provisions of the Probation of Offenders Act,
1958. Reference can be made to a judgment of this Court
in Lakhvir Singh v. The State of Punjab.
12. The appeal is accordingly disposed of. The appellant is
directed to be released on probation under Section 4 of
the Probation of Offenders Act, 1958 on entering into bond
and two sureties each to ensure that he will maintain peace
and good behaviour for the remaining part of his sentence,
failing which he can be called upon to serve the sentence.”
1
2023 SCC OnLine SC 605
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15. Besides the Judgment quoted above, regard being had to the age of
the appellant, their societal status, clean antecedents and the fact that the
incident had taken place in the year 1990, I am of the considered view
that the appellant is entitled to the benefit of the Probation of Offenders
Act r/w Section 360 of Cr. P.C. Additionally, the case of the appellant is
also covered by ratio of the judgment of this Court in the case of Pathani
Parida & another vs. Abhaya Kumar Jagdevmohapatra2.
16. In such view of the matter, the present Criminal Appeal in so far
as the conviction is concerned is turned down. But instead of sentencing
the appellant to suffer imprisonment, this Court directs the appellant to
be released under Section 4 of the Probation of Offenders Act for a
period of three months on his executing bond of Rs.5,000/- (Rupees Five
Thousand) within one month with one surety for the like amount to
appear and receive the sentence when called upon during such period
and in the meantime, the appellant shall keep peace and good behavior
and he shall remain under the supervision of the concerned Probation
2
2012 (Supp-II) OLR 469
Page 10 of 11
Officer during the aforementioned period of three months. However, the
sentence for payment of fine of Rs.500/- (Rupees five hundred) is
upheld, which shall be paid in accordance with law.
17. This Court records appreciation for the effective and meaningful
assistance rendered by Ms. Soma Nanda, learned Amicus Curiae. She is
entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five
hundred) to be paid.
18. With the above observation, the CRA is accordingly disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 18th of July, 2025/Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY Page 11 of 11
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 22-Jul-2025 19:11:31