ORISSA HIGH COURT CUTTACK CRIMINAL APPEAL NO. 235 OF 1990 From the judgment dated 22.08.1990 passed by Sri B.N. Mishra, Judge, Special Court, Sambalpur in T.R. No.2 of 1989. Panchanan Purohit ……… Appellant Versus Md. Nurol Abser, Supply Supervisor, Rairakhol ……… Respondent For appellant : Mr. P.K. Padhi, Advocate For respondent : Mr. Y.S.R. Murty Addl. Government Advocate PRESENT : THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY ---------------------------------------------------------------------------------------- Date of judgment : 21.01.2009 ---------------------------------------------------------------------------------------- PRADIP MOHANTY,J. This criminal appeal is directed against the judgment and order dated 22.08.1990 passed by the learned Judge, Special Court, Sambalpur in T.R. No.2 of 1989 convicting the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act and sentencing him to undergo imprisonment till the rising of the Court and to pay a fine of Rs.500/-, in default to undergo S.I. for one month. 2. The case of the prosecution is that on 07.10.1988, the complainant (P.W.1), Supply Supervisor, Rairakhol inspected the business premises of the appellant, who was a licenced control dealer at the relevant time. He verified the daily sale register and the stock register. He also verified the stock physically, which did not tally with the stock shown in the register inasmuch as there was excess of 21 Kgs. of sugar and shortage of 22.82 quintals of rice. The complainant, P.W.1 seized the stock along with the books of accounts and kept the stock of rice and sugar in the zima of one Niranjan Biswal. He also examined some of the consumers and ultimately filed prosecution report. 3. Plea of the appellant was complete denial of the allegation. 4. In order to prove its case, prosecution examined as many as four witnesses and exhibited 11 documents. The defence examined none. Learned Judge, Special Court, Sambalpur who tried the case by his judgment dated 22.08.1990 acquitted the appellant of the charge under Section 7(10(a)(i) of the E.C. Act, but convicted him under Section 7(1)(a)(ii) of the said Act and sentenced him to undergo imprisonment till the rising of the court and to pay a fine of Rs.500/- in default to undergo S.I. for one month. 5. Mr. Padhi, learned counsel appearing for the appellant submits that the trial court has illegally convicted the appellant under Section 7(1)(a)(ii) of the E.C. Act while passing an order of acquittal under Section 7(1)(a)(i) of the said Act relying on the same set of evidence. He further submits that no independent witness corroborates the seizure. In other words, the seizure has not been proved by the independent witness. He also contends that on 06.10.1988, i.e., before the date of seizure, the S.D.O. had visited the shop when it was closed. Thereafter the accused came there and produced the documents on the same day. The SDO had not returned those documents to the accused after such production. From the 2 above, inference can be drawn against the prosecution that no seizure was made on 07.10.1988 when the documents were not available with the appellant as the same were with the SDO. P.W.1 also specifically admitted in his cross-examination that he couldn’t say who made the entries in Ext.4. 6. Mr. Murty, learned Addl. Government Advocate vehemently contends that there is no reason to interfere with the impugned judgment and order of conviction inasmuch as the trial court in doing so has committed no illegality. When the defence was not able to elicit anything from the prosecution witnesses by way of cross- examination, the trial court has rightly passed an order of conviction against the present appellant. 7. Perused the LCR. As per the evidence of P.W.1, the Supply Supervisor, the raid was conducted on 07.10.1988, seizure was made on the same day and he filed the prosecution report on 12.12.1988. In the said PR he has not whispered a single word about the violation or contravention of any control order. In his evidence also, he has not stated anything about the violation of any control order. He stated in his evidence that he prepared a chart with regard to stock of rice and sugar, but in cross-examination he admitted that he did not weigh the seized rice and sugar. He also admitted in cross-examination that the documents had been taken by the SDO on 06.10.1988 and the SDO had not returned the same. This P.W.1 also did not prove Ext.5, the seizure list, by which stock register, daily register of sugar and rice were seized. In absence of weighment, it is difficult to place any reliance on P.W.1. Moreover, he has not proved Ext.5, the seizure list wherefrom the case flows. The independent witness P.W.2, who is one of the customers, who was called and signed the Ext.5 also stated that he put his signature in Ext.5, which had earlier been prepared by P.W.1. That means, the seizure was already over. P.W.3 is another 3 witness, who turned hostile and did not support the prosecution case. P.W.4 also did not support the prosecution case. In view of the above, this Court holds that the prosecution has failed to prove the charge against the appellant under Section 7(1)(a)(ii) of the E.C. Act. Therefore, this Court sets aside the impugned judgment and order of conviction and sentence passed by the learned Judge, Special Court, Sambalpur. 9. The Criminal Appeal is allowed accordingly. ……………………………… PRADIP MOHANTY, J. Orissa High Court, Cuttack, Jaanuary 21, 2009/G.D.Samal 4