Orissa High Court
M/S Ghanashyam Traders vs State Of Orissa on 18 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.27 of 2000
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
M/s Ghanashyam Traders, Saheed Nagar,
Bhubaneswar and another ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. Ashok Mohanty, Senior Advocate
For the Respondent : Ms. Sarita Moharana, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 15.07.2025 :: Date of Judgment: 18.07.2025
S.S. Mishra, J. The present Criminal Appeal, is filed by the
appellants under Sections 374 of the Cr. P.C., assailing the judgment and
order dated 17.01.2000 passed by the learned Special Judge, (Vigilance),
Bhubaneswar in T.R. Case No.8/6 of 1994/92, whereby the learned trial
Court has convicted the accused-appellant No.2(Nityananda Rath) who
was the managing partner of accused-appellant No.1(Firm) for theoffence punishable under Section 7 of the Essential Commodities Act,
1955 (herein after the ‘E.C. Act‘ for brevity) and, accordingly, sentenced
him to undergo R.I. for three months besides fine of Rs.1000/-, in
default, to further undergo R.I. for 15 days. However, the learned trial
Court didn’t impose any separate penalty on the accused-appellant
No.1(Firm).
2. The prosecution has charged the appellants for violation of Rule
12 of Orissa Pulses and Edible Oil Control Order, 1962 which is an
offence under Section 7 of the E.C. Act.
3. The case of the prosecution, succinctly stated, is that the
appellant’s business premise was raided by vigilance squad during the
morning hours on 05.04.1990, which continued till evening. In course of
the raid, it was summarily found that:-
a) There was shortage of 6 tins of mustard oil, 101 tins of soybean
refined oil, 76 tins of Maharaja refined oil and 2 tins of coconut
oil, each tin weighing 15 kilograms, 34 packets of mung dal each
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weighing 50 Kgs and excess of 60 tins of Konark Banaspati Gheeeach weighing 15 Kgs.
b) The actual stock, price board and the shortage and excess of
essential commodities couldn’t be accounted for.
In the conspectus of the above material facts, the accused-
appellants were charged under Section 7 of the E.C. Act for allegedly
violating Rule 12 of the Orissa Pulses and Edible Oil Control Order,
1977 and Orissa Declaration of Stocks and Prices of Essential
Commodity Order, 1973 on the ground of various discrepancies and
irregularities regarding the maintenance of stock.
4. The prosecution examined six witnesses in order to bring home
charges against the accused- appellants. Out of which, P.W.1 was the
then Commercial Tax Officer, Bhubaneswar. P.W.2 was the then D.S.P.,
Vigilance, Bhubaneswar, who was a part of the raid team, P.W.3 was a
Senior Clerk in the office of C.S.O., Puri, who produced the license
register to prove that the accused was a dealer in edible oil, oil seeds and
pulses. P.W.5 was the Inspector, Sales Tax at Cuttack Vigilance
Division, who also accompanied the Vigilance officers, P.Ws.4 and 6
Page 3 of 10
were the Vigilance Inspectors, who took part in the raid. However, there
was no witness examined by the defense.
5. The learned trial Court analysed the oral evidence and documents
on record like the stock, sales register etc. and categorically held that
there was no such discrepancy in the stock of commodities, namely,
mustard oil, soybean oil, coconut oil, Maharaja refined oil and Moong
dal. However, the learned Court below while scrutinizing the evidence
on record, found discrepancy regarding the commodity, namely, Konark
Banaspati Ghee. Relevant part of the judgement is reproduced herein
under for ready reference:-
“16. Admittedly, the amount of Konark Banaspati ghee
found in the shop of the accused at the time of raid was 168
tins. It is also admitted that that the opening balance of this
item of essential commodity as on 1.4.90 was 170 tins.
According to the defence, the accused sold 77 tins of Konark
Banaspati ghee during the relevant period. Since, the
accused did not purchase any stock of Konark Banaspati
ghee in between 1.4.90 to 5.4.90, the stock with the accused
on 5.4.90 should have been 170-77 tins. Thus it is seen that
the accused should have a stock of 93 tins of Konark
Banaspati ghee, but the actual stock found in the business
premises of the accused was 168 tins. Hence, the accused
had excess stock of 75 tins. The learned counsel for the
defence argued that the accused had purchased 75 tins of
Konark Banaspati ghee on 5.4.90 and therefore, there was
neither any shortage nor surplus. Curiously enough this was
not suggested to any of the witness. The accused, during hisPage 4 of 10
examination u/s 313, Cr.P.C also did not whisper a word
about this. The F.I.R. gives a detailed description of the
opening balance, the quantity received during the relevant
period, the quantity sold during the said period in respect of
each item. It has been categorically mentioned in the F.I.R.
that there was no purchase of Konark Banaspati ghee on or
after 1.4.90 till the raid was conducted on 5.4.90. Since all
the registers and cash memos of the accused were seized by
the I.O. I.O., there was no reason why the invoice showing
purchase of 75 tins of Konark Banaspati ghee was not
produced before the I.O. to be seized by him. The learned
counsel for the defence contended that despite production of
the of the invoice before the I.O., the latter refused to seize
the same. In that case the defence could have produced the
said document in court during trial to show that the accused
had in fact, purchased 75 tins of Konark Banaspati ghee.
Admittedly, the raid was conducted in early hours of the day
at about 10 a.m. The accused, therefore got sufficient time
during the rest of the day to produce a document showing
purchase of 75 tins of Konark Banaspati ghee to escape
from prosecution of this case. Thus, taking any view from
any angle, it is clear that the accused had excess of stock of
Konark Banaspati ghee in their business premises. The
eplanation of the defence that there was neither any excess
nor any shortage of Konark Banaspati ghee is not
acceptable.”
6. By appreciating and analyzing the evidence brought on record by
the prosecution and taking into account the defense plea eventually the
learned trial Court arrived at the following conclusion:-
“17. In view of my above findings, I hold that the
prosecution has successfully established beyond reasonable
doubt that the accused were guilty of keeping extra stock of
Konark Banaspati ghee in their business premises.
18. The accused, therefore violated the provisions of the
Orissa Pulses and edible Oil Control Order, 1997 and thus
are guilty of offence u/s 7 of the essential commodities Act.
Page 5 of 10
Accordingly, I hold the accused guilty u/s 7 of the E.C. Act
and convict them thereunder.”
7. Aggrieved by the aforementioned judgment of conviction and
order of sentence passed by the learned Special Judge, (Vigilance),
Bhubaneswar, the present Appeal has been preferred by the appellants.
8. Heard Mr. Ashok Mohanty, learned Senior Counsel appearing for
the appellants and Ms. Sarita Moharana, the learned Additional Standing
Counsel for the State.
9. Mr. Ashok Mohanty, learned Senior Counsel for the appellants
has strenuously argued the case on merits 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 appellants in
this case and the ordeal of trial faced by the appellants, he would rather
confine his argument to the quantum of sentence. He submitted that the
incident pertains to the year 1990 (5.4.1990). The appellants have
undergone the rigors of trial for about ten long years. Thereafter, the
appeal was preferred in the year 2000 (25.1.2000). The appeal has been
prolonging to be heard for about 25 years. The managing partner
Page 6 of 10
(appellant no-2) who was in his mid-forties then is now a septuagenarian
and, therefore, sending the elderly to custody for fulfilling the remaining
sentence at this belated stage would serve no purpose. The learned
Senior Counsel further submitted that the appellants have 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 appellants may be extended the benefit of Probation of
Offenders Act read with Section 360 Cr.P.C.
10. Taking into consideration the entire conspectus of the matter, it
would be apt to rely on the judgement of Hon’ble Supreme Court in
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Tarak Nath Keshari V. State of West Bengal1 , it which it was held
thus: –
“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.”
11. Besides the judgment quoted above, regard being had to the age of
the appellant, his societal status, clean antecedents and the fact that the
incident had taken place in the year 1990, I am of the considered view
that the appellant No.2 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
1
2023 SCC OnLine SC 605
Page 8 of 10
case of Pathani Parida & another vs. Abhaya Kumar
Jagdevmohapatra2.
12. 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 no-2 to suffer further imprisonment, this Court directs the
appellant No.2 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 No.2 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. However, the sentence for fine of Rs.1,000/- is upheld
which shall be payable by the appellant No.2 as per the procedure
established by law, in default of which suffer a simple imprisonment for
a period of 15 days.
2
2012 (Supp-II) OLR 469
Page 9 of 10
13. With the above observation, the CRA is accordingly disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 18th of July 2025/ Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 22-Jul-2025 17:09:18 Page 10 of 10
