Orissa High Court
Padma Charan Swain vs State Of Orissa on 18 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.78 of 2001
(In the matter of an appeal under Section 374 (2) of the Code of Criminal
Procedure, 1973)
Padma Charan Swain ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mohammed Faradish, Advocate
For the Respondent : Mrs. Siva Mohanty
Additional Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025
S.S. Mishra, J. This appeal is directed against the judgment dated
03.04.2001 passed by the learned Special Judge, Koraput at Jeypore in
T.R. Case No. 38 of 1998, whereby the appellant, Padma Charan Swain
was convicted for the offence under Section 7 of the Essential
Commodities Act, 1955 read with Clause 3 of the Orissa Rice and Paddy
Control Order, 1965, and sentenced to undergo rigorous imprisonment
for a period of three months and to pay a fine of Rs. 500/-, in default, to
undergo further rigorous imprisonment for one month. The co-accused,Jatindra Kumar Swain, the son of the appellant, was acquitted of all
charges.
2. The case of the prosecution, in brief, is that on 07.10.1997 at
around 1:30 PM, the Marketing Inspector of Sunabeda inspected a
grocery shop allegedly owned by the appellant but operated by his son,
Jatindra Kumar Swain, located at Semiliguda in Koraput District. At the
time of inspection, accused Jatindra Kumar Swain was present in the
shop and allegedly conducting business. The Marketing Inspector found
that the stock and price board was not displayed as required under the
Orissa Declaration of Stocks and Prices of Essential Commodities
Order, 1973. Upon physical verification, he found stored in the shop 16
quintals and 26 kilograms of common rice, along with other essential
commodities such as Mung Dal, Arhar Dal, Black Gram, Suji, and Flour
in quantities exceeding permissible limits. The accused could not
produce any licence authorizing such storage or sale. Consequently, the
Marketing Inspector seized the stock after weighment, and a seizure list
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and weighment chart were prepared at the spot, duly signed by the
accused and witnesses.
3. Upon further investigation, it was revealed that while the shop
was in the name of Padma Charan Swain, his son, Jatindra Kumar
Swain, was in fact a student and not actively engaged in business. The
ownership and responsibility for the stock were traced back to the
present appellant, Padma Charan Swain, his father. The prosecution
accordingly filed the case under Section 7 of the Essential Commodities
Act, alleging contravention of Clause 3 of the Orissa Rice and Paddy
Control Order, 1965 and Clause 3 of the Declaration Order.
4. The defence of the appellant was one of denial. Both accused
persons, during their examination under Section 313 Cr.P.C., claimed
that the seized stock did not belong to them. Jatindra Swain, who also
deposed as D.W.2, stated that the shop was closed and was opened only
at the instance of the Inspector. He claimed the rice was stored inside
the house for personal use. Padma Charan Swain, on the other hand,
claimed the stock belonged to one Haranarayana Mishra, who had
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produced the rice from his own agricultural field and had stored it
temporarily in the appellant’s house.
5. The prosecution examined only two witnesses. P.W.1 was an
independent witness to the seizure and P.W.2 was the Marketing
Inspector who conducted the inspection. Both had deposed regarding
the presence of excessive stock and lack of licence. The defence
examined two witnesses, including the accused Jatindra Swain and a
witness to the seizure.
6. The learned trial Court, after evaluating the evidence on record,
came to the conclusion that the defence plea regarding Haranarayana
Mishra was an afterthought, noting that no such suggestion was made
during cross-examination of the prosecution witnesses, and that said Mr.
Mishra was not examined by the defence. The Court disbelieved the
shifting versions of the defence and held that storage of rice exceeding
10 quintals, regardless of whether in a shop or residence, without
licence, attracted the statutory presumption under the Control Order.
However, considering the student status of Jatindra Swain, the Court
held that only Padma Charan Swain could be held responsible.
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7. The learned trial Court, after credible analysis, has arrived at the
following finding-
“The evidence of p.w1 is supported by D.Ws. 1 and 2 both of
whom stated that at the time if inpsection the shop was closed.
Both the accused persons during their examination under
section 313 Cr.P.C. also took the same plea. The pleas that the
shor room was closed at the time of inspection was taken by
the defence from the very beginning and was suggested to both
the prosecution witnesses. Thus it is seen that the defence plea
is consistent and has been supported by evidence including
that of the prosecution witnesses. In the case of Ramanath Das
v. State of Orissa, reported in 1981 C.L.R. 80, his lordhsip of
our own High Court held that the defence plea, if finds support
from the evidence of some of the prosection witnesses, should
be accepted. In view of such clear-cut decision and
consistency of the defence plea, I am inclined to hold that the
shop was closed at the time of inspection and the accused
persons were under no obligation to display a stock and price
Board as required under the provisions of the Declaration
order. Accordingly, I hold that the prosecution has failed to
establish any case under section 7 of the Act for contravention
of clause 3 of the Declaration order:
9. In the result, I hold accused Padma Charan Suain quilty
under section 7 of the Essential Commoddities Act read with
Claue 3 of the Orissa Rice and Paddy Control Order, 1965
and convict him thereunder. He is found not quilty of violation
of clause 3 of the Orissa Declaration of stock and Prices of
Essential Commodities order, 1973. Accused Jatindra Kumar
Swain is found not guilty under section 7 of the Essential
Commodities Act as no contravention of the aforesaid orders
has been established against him. Accordingly, he is acquitted.
His bail bond stand cancelled. Accused Padma Charan Swain
is sentenced to undergo regourous imprisonment for three
months and to pay fine of Rs.500/- (Five hundred) in default to
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suffer a further period of rigourous imprisonment for one
month.”
8. Heard Mohammed Faradish, learned Advocate on behalf of the
appellant and Mrs. Mohanty, learned Additional Standing Counsel, for
the State.
9. The appellant in lieu of his conviction under Section 7 of the
Essential Commodities Act, 1955 read with Clause 3 of the Orissa Rice
and Paddy Control Order, 1965, had been sentenced to undergo rigorous
imprisonment for a period of three months and to pay a fine of Rs. 500/-
in default, to undergo further rigorous imprisonment for one month.
10. Md. Faradish, the learned counsel for the appellant, submitted
that in the event, this Court is not inclined to entertain the appeal against
the conviction, but a lenient view should be taken against the appellant
to grant the benefit of the Probation of Offenders Act.
11. The incident out of which the present case arises pertains to the
year 1997, and at that point in time, the appellant was about 50 years of
age. Therefore, at present, the appellant is in his late seventies. He has a
clean record and was a first-time offender. The appellant has already
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undergone the ordeal of trial for about three years. The appeal has been
pending since 2001. Therefore, at the late evening of the life of the
appellant, sending him to custody would not only be harsh but also
detrimental to his entire family.
12. The learned counsel further argued 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 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.
13. Taking into consideration the entire conspectus of the matter, it
would be apt to rely on the judgement of the Hon’ble Supreme Court in
Tarak Nath Keshari V. State of West Bengal, (2023) SCC OnLine SC
605, in which it was held thus: –
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“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.”
14. Besides the Judgment quoted above, regard being had to the age
of the appellant, his societal position, clean antecedent and the fact that
the incident had taken place in the year 1997, I am of the considered
view that the appellant is entitled to the benefit of the Probation of
Offenders Act. 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 Jagdevmohapatra, reported in 2012 (Supp-
II) OLR 469. Therefore, while not interfering with the judgment of
conviction recorded against the appellant for the offence as stated
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above, I am inclined to grant the benefit of the Probation of Offenders
Act so as to suffice the sentence part.
15. 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 six months on his executing bond of Rs.5,000/-
(Rupees Five Thousand) within a 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 Officer during the aforementioned period of six
months.
16. Accordingly, the Criminal Appeal is 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 9 of 9
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 21-Jul-2025 19:16:34
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