Conviction upheld under Essential Commodities Act; sentence modified to probation due to mitigating circumstances.

JUDGMENT :

Sibo Sankar Mishra, J.

This appeal is directed against the judgment and order dated 03.05.2001 passed by the learned Additional Sessions Judge-cum- Special Judge, Jeypore in T.R. Case No. 21 of 2000 (arising out of T.R. Case No. 137 of 1997), whereby the appellant Baikuntha Nath Choudhury was convicted under Section 7 (1)(b)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’) for contravening Clause 3 of the Orissa High Speed Diesel (Dealers’ Licensing) Order, 1979 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default, to undergo further rigorous imprisonment for one month.

2. Heard Mr. Biswa Kumar Mishra, learned counsel appearing for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel appearing for the Respondent-State.

3. The prosecution case originates from an incident dated 05.03.1997 at about 11:45 A.M., the Marketing Inspector, Boipariguda, along with the Assistant Civil Supplies Officer (A.C.S.O.), Jeypore and another Marketing Inspector visited the grocery shop of the appellant situated at Boipariguda. The raiding officials found the appellant present in his shop and allegedly selling high speed diesel to customers, without possessing any valid permit or licence for such sale.

4. Upon demand, the appellant failed to produce any valid licence. Consequently, 160 litres of high speed diesel, contained in a drum, were seized from the spot. A written statement allegedly made by the appellant confessing to selling diesel for the past month was also recorded. The seized diesel was then handed over in zima to one Biranchi Narayan Patra (P.W.1). A prosecution report was submitted against the appellant under the relevant provisions of the Essential Commodities Act.

5. During trial, the prosecution examined five witnesses to establish the seizure and the alleged unauthorized dealing in diesel. P.W.2 (Rabindranath Suaro) and P.W.3 (Monoj Kumar Das), the Marketing Inspectors, and P.W.5 (Padmalochan Nayak), the A.C.S.O., formed the raiding team and supported the prosecution case in material particulars. P.W.1 and P.W.4 were cited as seizure witnesses.

6. The appellant, in his statement under Section 313 Cr.P.C., took the plea of complete denial. He contended that he neither owned nor operated any Dhaba at the spot and that he had been falsely implicated by the Marketing Inspector (P.W.2). It was also contended that the seized articles did not belong to him, and no conclusive proof was furnished by the prosecution to establish his ownership or conscious possession over the premises or the articles.

7. The defence plea was one of total denial. The appellant contended that though he ran a grocery shop at Boipariguda, he was not dealing in diesel. It was the case of the defence that the seized diesel belonged to D.W.1, Nrusingha Charan Sahu, a truck driver, who had temporarily kept the drum containing diesel near the appellant’s shop and asked the appellant to keep an eye on it. D.W.1 was examined to corroborate this version but failed to produce any documentary proof (such as a purchase receipt) to substantiate his claim.

8. On evaluation of the evidence, the learned trial court relied on the alleged confessional statement (Exhibit 3) made by the appellant to the Supply officials and found the prosecution version to be trustworthy and consistent. The learned trial Court disbelieved the defence version, held the appellant guilty of contravening the licensing order, and imposed the sentence mentioned above.

9. Th