The absence of material evidence, including the lack of chemical testing and failure to produce seized items, undermines the conviction under the Essential Commodities Act for possession without intent to contravene.

JUDGMENT :

S.S. Mishra, J.

This appeal is directed against the judgment and order dated 29.01.1997 passed by the learned Judge (Special Court), Sambalpur in T.R. Case No. 10 of 1995 whereby the appellant, Nishamani Amat, was convicted under Section 7 (1)(a) of the Essential Commodities Act, 1955 (hereinafter referred to as “E.C. Act”) for contravention of Clause 8(b) of the Orissa Kerosene Control Order, 1962 and sentenced to undergo rigorous imprisonment for a period of three months.

2. The prosecution case, in brief, is that on 12.04.1995 at around 9:00 A.M., the appellant was found in possession of a tin containing 20 litres of kerosene at village Kadaligarh. He was intercepted by some villagers and detained. Upon receipt of written intimation from one Sri Golekh Chandra Behera (P.W.1), the local police reached the spot and seized the tin containing kerosene along with the cycle used for transportation. Subsequently, the accused was arrested and a charge- sheet was filed after investigation, alleging violation of Clause 8(b) of the Orissa Kerosene Control Order, punishable under Section 7 (1)(a) of the E.C. Act.

3. During the trial, the prosecution examined four witnesses. P.W.1 was the informant who claimed that upon being called by villagers, he found the accused in possession of kerosene and informed the police by submitting a written report marked as Ext.1. P.Ws.2 and 3 were seizure witnesses who confirmed their signatures on the seizure list (Ext.2), though they admitted in cross-examination that the kerosene was not measured in their presence. P.W.4 was the investigating officer who also admitted that the kerosene was not subjected to chemical analysis. No material object (the tin or the seized kerosene) was produced during the trial for identification or marking.

4. The defence plea was one of complete denial. No evidence was adduced on behalf of the defence. It was argued before the trial Court that in the absence of chemical examination and proper production of the seized articles in Court, the appellant could not be conclusively linked to the alleged contravention.

5. The learned trial Court, however, found the evidence of P.Ws.1 to 4 sufficient to establish possession of 20 litres of kerosene by the accused. Relying on a notification dated 19.04.1982 issued under Clause 3(b) of the Orissa Kerosene Control Order, 1962 (S.R.O. No. 264/82), the learned trial Court held that possession of more than 10 litres of kerosene by a person who is not a licensed dealer amounts to an offence under the EC Act. The Court also relied on the decision of this Court in Pravash Chandra Bachar vrs. State of Orissa , reported in (1992) Cri LJ 1728, wherein it was held that possession of kerosene beyond the permissible limit without a proper licence attracts penal liability under Section 7 (1)(a) of the E.C. Act.

6. The learned trial Court further observed that since the tin had a 20-litre capacity and was stated to be full, the offence stood established. The absence of chemical examination was considered immaterial, as the Court found it sufficient that the substance had the characteristic smell of kerosene and was described as such by all prosecution witnesses. The court also declined to extend the benefit of Probation of Offenders Act, holding that the offence was one against public interest. The relevant portion of the aforesaid judgment is extracted herein below:-

“5. It is next to be seen as to whether, as alleged, the accused was in possession of 20 litres of Kerosene. To begin with the evidence, P.W.1 is the informant who, being called by the vill