S.S. Mishra, J
1. The present Criminal Appeal is preferred by appellant assailing the judgment and order dated 17.12.1993 passed by the learned Special Judge, Puri in T.R. Case No. 3 of 1991 convicting the appellant under Section 7 of the E.C. Act and sentenced him to undergo R.I. for a period of three months and to pay a fine of Rs.1000/-, in default to undergo R.I. for one month.
2. Heard Mr. Biswa Kumar Mishra, learned Amicus Curiae for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.
3. The narrative of prosecution report in the present case is that on 26.05.1990, the Assistant Civil Supplies Officer of the Enforcement Squad at Bhubaneswar with his staff and the Supply Inspector, Nimapara were on enforcement duty. In that connection, at about 5 p.m. they reached the market area at Khelar and that area is known as 'Khelar Bazar’. The accused had a grocery shop in that ‘Khelar Bazar’. On verification of the articles in that shop, it was found that the accused was in possession of 14 Qtls. of Black gram, 13 Qtls. of Sugar, 4.65 Otls. of Mustard oil in 31 sealed tins and 3 Qtls. of refined oil in 20 sealed tins. The accused had no license or permit to possess or carry on business with the aforesaid essential commodities. Under such circumstance, the aforesaid articles were weighed and seized. The articles were left in the zimma of the accused. The accused also made a voluntary statement stating about the checking and possession of the aforesaid articles in his shop. It is further the case of the prosecution that by the time of checking, the shop was open and transactions were going on. It is also the case of the prosecution that during the time of verification and checking the accused made a false statement that he had applied for license, which was later on found to be untrue and correct. Accordingly, after completion of the investigation, prosecution report for the aforesaid offences was filed.
4. To establish the charges, the prosecution examined five witnesses. Out of them, P.W.2 was the then A.C.S.O., P.W.3 was the Inspector of Supplies Enforcement Squad, Bhubaneswar, P.W.4 was the Marketing Inspector, Nimapara and P.Ws.1 and 5 were the two independent witnesses. The accused-appellant, having taken a stance of complete denial, claimed trial and accordingly he was put to trial.
5. After analysing the evidence on record, the learned trial court arrived at the following conclusion:-
“15. P.Ws. 2 to 4 being the official witnesses are naturally interested witnesses for the prosecution and at the same time, P.Ws.2 to 4 having no ill-feeling or inimical relationship with the accused, they had no proximate cause to set up a false case against the accused unless there would have been checking and verification in the alleged manner. Under such circumstance, the evidence of P.ws.2 to 4 cannot be thrown over-board simply because they are the official witnesses. However, their evidence is to be scanned and assessed like any other evidence in record to find out whether they are true and trust worthy In this connection, reliance is placed on the ratio propounded in Vol.73(1992) C.L.T. page-28 Subodh Sethi and another-vrs- State.”
16. On a close reading of the evidence of P.Ws.2 to 4 it is found that they have consistently stated about the fact of search and seizure in the manner it has been narrated at the outset of the judgment (while stating about the prosecution case). During cross-examination, nothing substantial has been brought out from their mouth to show or suggest that these witnesses are speaking false-hood Thus, the evidence of P.Ws.2 to 4 is found to be credible and relied upon. In their evidence, P.Ws.2 to 4 have stated that at 5 p.m., the shop of the accused was found in open condition the transaction was going on, and on verification they found black gram in 14 gunny bags, mustard oil in 31 sealed tins and refined oils in 20 sealed tins. They made the weighment and prepared the weighment chart Ext.1 and as the accused failed to produce any license or permit in support of possession of such huge quantity of essential commodities therefore, a case of contravention of the provisions in clause-3 of the Order, 1977 and clause-3 of the order, 1963 and was found subsisting besides violation of Clause-3 of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973 in as much as, the accused has not displayed a Board showing the Stock and price of the essential commodities. They have stated in their evidence that for the aforesaid reason, the aforesaid articles were seized under the seizure list Ext.2 in presence of the accused and the witnesses and the accused took the seized articles in the zimma and executed thé zimmanama Ext. 3. Such oral evidence of P.Ws.2 to 4 with the aforesaid violation of provision of law finds ample corroboration from the admitted signatures of the witnesses and the accused in Exts.1 to 3. As has been discussed and in a preceding paragraph, the accused has not given satisfactory explanation and has not substantiated the plea relating to existence of signature in all such documents. Besides that in Ext. 4, he has also admitted about happenings in the same manner as has been stated by P.Ws. 2 to 4 and mentioned in Exts.1 to 3. Thus, the aforesaid analysis of the evidence in record leaves no room for doubt that the shop of the accused was searched and the articles seized under Ext. 2 were recovered from the possession of the accused from his shop and that accused had no license or permit to store or possesses the said essential commodities in business premises and that he had not displayed the stock and price board.”
6. Although the appellant stood charged for the offence punishable under Sections 7 and 9(1) of the E.C. Act, but the learned trial Court relying upon the evidence of the prosecution, arrived at a conclusion that the appellant is not guilty of offence punishable under Section 9(1) of the E.C. Act and the appellant is only convicted under Section 7 of the E.C. Act and was sentenced to undergo R.I. for a period of three months and to pay a fine of Rs.1000/-, in default to undergo R.I. for one month.
7. Taking into consideration the facts that the incident relates back to the year 1990 and the trial went on for about three years only to end up on 17.12.1993 and the appeal had been pending since 1994 onwards, this Court is not inclined to knock out the appeal on the technical ground as mentioned above particularly for the reasons that the learned trial Court by a deep analysis of the evidence brought on record has found the appellant guilty of the offence, as mentioned above.
8. While analyzing the evidence on record, I find no reason to disagree with the findings written by the learned trial court, hence, I affirm the conviction recorded against the appellant for the offence under Section 7 of the E.C. Act.
9. At this stage, Mr. Mishra, learned Amicus Curiae for the appellant has strenuously argued the case on merit and taken me to the evidence on record. After arguing for some time, he submitted that keeping in view the procrastinated judicial process undergone by the appellant in this case and the ordeal of trial faced by the appellant, he would rather confine his argument to the quantum of sentence. He submitted that the incident pertains to the year 1990. The appellant has undergone the rigors of trial for about three years. Thereafter, the appeal was preferred in the year 1994. The appeal has been prolonging to be heard for about 31 years. The appellant who was in his early forties then is now is aged about seventy years and therefore, sending him to custody for fulfilling his remaining sentence at this belated stage would serve no purpose. The learned Counsel 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 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, in the fitness of situation, the appellant may be extended the benefit of Probation of Offenders Act read with Section 360 Cr.P.C. I am inclined to accede to the prayer made by Mr. Mishra, learned Amicus Curiae for the appellant on the facts scenario of the case.
10. Regard being had to the societal position of the appellant, 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 and 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 Jagdevmohapatra 2012 (Supp-II) OLR 469 and Dhani @ Dhaneswar Sahu vs. State of Orissa 2007 (Supp.II) OLR 250.
11. 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 Officer during the aforementioned period of three months.
12. Accordingly, the Criminal Appeal is partly allowed.
13. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Biswa Kumar Mishra, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation.
