Allowed

Lingaraj Naik v. State of Orissa

Orissa HC17 Mar 2023CRA/63/1995

Case brief

AI extract

What is this about?

Allowed the dismissal of the appeal against conviction for illegal possession of PDS rice under the Essential Commodities Act but commuted the prison sentence to release under the Probation of Offenders Act due to the appellant's age and the lapse of time.

What did the court decide?

Conviction maintained; sentence modified to release the appellant under Section 4 of the Probation of Offenders Act upon appearance on a fixed date.

Lingaraj Naik Vs State of Orissa — Cheque Dishonour | Orissa HC (2023)

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THE HIGH COURT OF ORISSA AT CUTTACK

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CRA No. 63 of 1995

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(An appeal under Section 12AB of the Essential Commodities Act, 1955 read with Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by learned Special Judge, Koraput, Jeypore in T.R. Case No. 18 of 1993)

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---------------
Lingaraj Naik ...… Appellant
-Versus-
State of Odisha ...... Respondent
Advocate(s) appeared in this case:

For Appellant : M/s. Prince Pattnaik,
Abas Mohanty & Saurav Mohanty,
Advocates.
For Respondent : Mr. S.K. Mishra,
Addl. Standing Counsel

CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
17 th March, 2023
SASHIKANTA MISHRA, J.

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AFR

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The appellant questions the correctness of the judgment of conviction and sentence passed by the Special Judge, Koraput, Jeypore on 03.02.1995 in T.R. Case No. 18 of 1993, whereby he and two other accused persons were

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convicted for the offence under Sections 7(i)(a)(ii) and 8 of the Essential Commodities Act and were sentenced to undergo Rigorous Imprisonment (RI) for one month for the said offence.

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Be it noted that originally the appeal was filed by three persons including the present appellant but the other two persons (appellant Nos. 2 and 3) having died, the appeal against them has abated.

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The prosecution case, briefly stated, is that an FIR was lodged by one Damburu Naik claiming to be the President of Azad Youth Association, Tikiri, DistrictRayagada before the Tikiri Police Station leading to registration of P.S. Case No. 5(5) of 1993. It was alleged that the members of the Association came to know that the petitioner and other two accused persons had purchased PDS rice from the dealer on 05.01.1993 and stored the same

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in the house of one G. Saraswati. Accordingly, the members of the Association searched the house of G. Saraswati and found 27 bags of rice. It came to light that the accused was illegally purchasing the PDS food grains from the dealer every

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month. As such, FIR was lodged, which was followed by investigation. Upon completion of investigation, charge sheet

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Page 2 of 7

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was submitted against three accused persons including the

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present appellant.

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The accused took the plea of denial.

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In order to prove its case, prosecution examined

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eight witnesses including the informant as P.W.-4 and G. Sraswati as P.W.-1. The I.O. was examined as P.W.-8. That apart, prosecution also proved seven documents from its side. Defence examined two witnesses from its side.

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After appreciating the evidence on record, the trial court found that accused, Lingaraj Naik (appellant) was in illegal possession of 27 bags of rice, which is beyond the permissible quantity of 10 quintals making himself liable under clause-3 of the Orissa Rice and Paddy Control Order, 1965, which is punishable under Section 7 of the Essential Commodities Act. The trial court further held that the accused also abetted the contravention of the conditions of the licence issued to the accused dealers by not distributing

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the same as per the Public Distribution System in their respective villages which is punishable under Section 8 of the Essential Commodities Act. On such findings, the trial court found the appellant guilty of the offences under Sections

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7(1)(a)(ii) of the Essential Commodities Act and sentenced him as already stated hereinbefore.

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Heard Mr. A. Mohanty, learned counsel for the appellant and Mr. S.K. Mishra, learned Addl. Standing Counsel for the State.

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Assailing the impugned judgment, Mr. Mohanty has basically pointed out the unexplained delay in lodging of the FIR which according to him, falsifies the prosecution story. He further argues that there is no evidence against the present appellant showing him to have stored the rice in the house of G. Saraswati.

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Mr. S.K. Mishra, on the other hand has

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submitted that proper explanation was offered for the delay in lodging the FIR. Further, the evidence on record including that of P.W.-1 clearly shows that the appellant had stored the rice in her house.

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As regards the delay in lodging of the FIR, this Court finds that the occurrence is said to have taken place on 01.05.1993, whereas the FIR was lodged on 08.05.1993, i.e. after a gap of three days. It is borne out from the evidence

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of the informant (P.W.-4) that after receiving information that the three accused persons had come to the village in a loaded

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van at 6 p.m. and had left after unloading the bags. The

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members of the Association were informed and on the next morning they went to the house of P.W.-1 and saw the bags of rice there. A meeting was held in this regard on 7^th May, 1993 in the village, wherein it was decided to lodge the FIR.

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This Court finds the above a plausible explanation for the delay, inasmuch as nothing has been stated by the defence as to why the informant or the members of the Association would falsely implicate him in the case. The contention of Mr. Mohanty in this regard is therefore, not tenable.

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As regards the evidence relating to the occurrence, this court finds that the rice in question was

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found from the house of G. Saraswati, who was examined as P.W.-1. In her evidence she clearly admits that the accused

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came and kept rice in her house. In cross-examination, she further stated that the accused gave the issue order to her and said that there was nothing to fear. She further sated that the accused had told her that he would take the rice in the morning. There is no dispute that the rice in question was meant for sale under the PDS by the dealer and therefore, the appellant could not have purchased such huge

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quantities beyond the permissible limit. There is clear evidence that having purchased such rice illegally, he stored it in the house of P.W.-1, from where it was recovered. The court below has taken into account this clear evidence to hold the accused guilty. After independently scanning the evidence on record, this court finds no reason to differ from the view taken by the court below.

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Mr. Mohanty alternatively contends that the

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occurrence took place way back in the year 1993 when the appellant was aged about 28 years at the relevant time. Presently he is nearly 60 years old. He had spent nearly 10 days in custody during trial. Further, no other criminal antecedents are reported against him. Under such circumstances, Mr. Mohanty urges the Court to extend the benefit of Probation of Offenders Act to the appellant. Mr. S.K. Mishra submits that having regard to the nature of offence no leniency should be shown to the appellant.

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This Court however, finds considerable force in the submission of Mr. Mohanty that the occurrence took place more than 30 years back. The appellant was a young man at the relevant time but is presently aged about 60

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years. No criminal antecedents are reported against him. Therefore, no fruitful purpose would be served by sending him to prison to serve the remaining part of the sentence at this distance of time. This Court therefore, feels that ends of justice would be best served if the appellant is released as per the provisions of the P.O. Act.

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In the result, the appeal is allowed in part. The impugned order of conviction is maintained. The sentence is however, modified to the effect that the appellant shall be released as per the provisions of Section 4 of the Probation of Offenders Act. For such purpose, the appellant shall appear before the Trial Court on 17^th April, 2023. It is made clear that if the appellant does not appear on the date fixed, this order shall not operate and necessary orders shall be passed to take him to custody to serve the remaining part of his sentence as imposed originally.

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……..………………….. Sashikanta Mishra, Judge

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Orissa High Court, Cuttack, The 17^th March, 2023/ A.K. Rana

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Lingaraj Naik v. State of Orissa

Case brief

What is this about?

What did the court decide?

Lingaraj Naik v. State of Orissa

Case brief

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What did the court decide?

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