Ashok Kr. Sahoo Vs State

S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 21.11.2000 passed by the learned Special Judge under the Essential Commodities Act, Khurda, in T.R. No.103 of 1996 (arising out of Vigilance G.R. Case No.11 of 1996). By the said

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judgment, the learned Special Judge convicted the appellant under Section 7 of the Essential Commodities Act, 1955 for contravention of Clauses II, III & IV of his licence bearing No.4/79 read with Sections 3 and 10 of the Essential Commodities Act, and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for a period of three months.

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2. Heard Ms. Anwesha Mishra, learned counsel, for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State.

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3. The prosecution case, in brief, is that the appellant was running a wholesale business of super kerosene oil under the name and style of M/s. A.K. Sahoo at Balugaon and held a valid licence bearing No.4/79, renewed up to 31.03.1996. On 26.02.1996 at about 4.30 P.M., a vigilance team led by U. Rama Rao, Inspector of Vigilance, Khurda (P.W.9) along with P.Ws.1, 2, 3, 7, and 8 conducted a surprise inspection of the appellant’s business premises situated over Plot No.55, Khata

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No.113 of Mouza Samantarapur in Balugaon Bazar. The inspection revealed that against a book balance of 3,700 litres of super kerosene oil, 2,685 litres were physically found inside the business premises. Further, 860 litres of super kerosene oil were found stored in a tanker located near the appellant’s house, which was situated about one kilometre away from the licensed business premises. Even after taking the latter quantity into account, there was still a shortage of 155 litres of super kerosene oil, for which the appellant allegedly could not furnish a satisfactory explanation.

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4. Consequently, the stock of kerosene oil, together with the account books and related documents, was seized under proper seizure lists, and on completion of investigation, the appellant was charge-sheeted for the aforesaid offence.

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5. The appellant denied the allegations and claimed that the case was foisted against him due to political rivalry. He pleaded that there was no deliberate contravention of licence conditions and that the kerosene stored at his residence belonged to the same stock, which was

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temporarily shifted for convenience. One defence witness, D.W.1, namely Satara Kalapahad, was examined in support of the appellant’s case.

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6. The prosecution examined nine witnesses. P.W.1 Sarat Kumar Paramguru, P.W.2 Nityananda Naik, P.W.3 Sk. Muktarul Hossain Hozari, P.W.7 Kishore Chandra Moharana, and P.W.8 Sanatan Bari corroborated the fact of the raid and the detection of the shortage. P.W.4 Lambodar Das, the R.I. of Balugaon Circle, proved that the business premises and the residential premises of the appellant stood over different plots and separate revenue khatas. P.W.5 Sudarshan Mishra, Junior Clerk, proved the seizure of the duplicate licence (Ext.6), and P.W.9 U. Rama Rao, the investigating officer, narrated the entire course of investigation and lodged the F.I.R.

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7. However, it is pertinent to note that P.W.6 Laxman Das, a worker of the appellant’s depot, turned hostile and did not support the prosecution case. His evidence did not contribute to the prosecution’s

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version and was, therefore, of no assistance in proving the alleged shortage.

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8. On the other hand, D.W.1 Satara Kalapahad, who accompanied the vigilance team during the raid, deposed that against the shortage of 1015 litres of super kerosene oil, the dealer, Ashok Kumar Sahoo, explained that he had some quantity of kerosene oil stored at his residence. Accordingly, the team proceeded to his residence, located at a distance of about one kilometre from his business premises at Balugaon– Banpur Road, where a tanker fitted with a motor was found containing 860 litres of kerosene oil. Thus, there was an effective shortage of only 155 litres, which the appellant could not reconcile on the spot. This statement, in substance, corroborates the essential fact that the major portion of the alleged shortage was duly explained during the inspection itself.

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9. The learned trial Court held that the appellant had stored kerosene oil at a place not specified in his licence and had failed to account for the shortage of 155 litres, thereby violating Clauses II, III & IV of the

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licence conditions read with Sections 3 and 10 of the E.C. Act. Accordingly, convicted the appellant under Section 7 of the Essential Commodities Act and imposed the sentence noted above. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:-

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“12. Learned defence counsel has argued that cognizance of the offence has not been taken. But, it is disclosed from the record that on 20.9.96, this Court has taken cognizance of the offence under section 7 of the E.C. Act. It is further argued by the learned defence counsel that when section 3 of the E.C. Act is violated, then cognizance of offence will be taken under section 7 of the E.C. Act and that section 3 relates to the commodities specified in sections 2 & 3 of the said Act. It is argued by the learned defence counsel that the word "oil” means “edible oil" and kerosene is not an oil and is not coming under the definition of sections 2 & 3 of the E. C. Act, which has been held in a case reported in 1986 (I) OLR at page 415. So it is the plea of the defence that the accused is not liable under section 7of the E.C. Act for violation of sections 2 & 3 of the said Act in view of the above decision.

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13. In the result, I find that the prosecution has proved beyond reasonable doubt that the accused has contravened clauses II, III & IV of his licence bearing No.4/79 read with sections 3 & 10 of the E.C. and I

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hold him guilty under section 7 of the E.C. Act and convict him thereunder.

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14. Heard the convict on the question of quantum of sentence to be imposed upon him. The convict is aged about 54 years. Learned counsel for the convict submitted that there is no previous conviction at the credit of the convict and if the convict would have sold 155 litres of kerosene oil in black market @ Rs.10/- per litre, then at best he would have earned a profit of Rs.750/-, for which a lenient sentence may be passed against the convict. Considering the age of the convict and nature of the offence, I am not inclined to extend the benefit of the Probation of Offenders Act to the convict. I think R.I. for a term of one year and fine of Rs.1,000/-, I.D. to undergo R.I. for a further period of three months shall meet the ends of justice.

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Hence, I sentence the convict to undergo rigorous imprisonment for a period of 1 (one) year and to pay a fine of Rs.1,000/- (Rupees one thousand), in default, to undergo rigorous imprisonment for a further period of 3 (three) months for the offence punishable under section 7 of the E.C. Act, 1955. The period which the convict has undergone as U.T.P. shall be set off as per the provisions under section 428, Cr.P.C. against the substantive sentence passed against him.”

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10. I have carefully considered the submissions advanced by the learned counsel for the appellant as well as the learned counsel for the State, and perused the entire lower Court records, including the

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depositions of the prosecution witnesses and the reasoning assigned by the learned trial Court.

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11. It is undisputed that the raid was conducted on 26.02.1996 at about 4.15 P.M. and that 2,685 litres of kerosene oil were found in the licensed premises, while 860 litres were discovered at the appellant’s residence. The shortage of 155 litres was thus established by the prosecution.

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12. However, the evidence on record clearly indicates that the entire stock of kerosene oil belonged to the same business entity, M/s A.K. Sahoo, and was not shown to have been sold clandestinely or diverted for black marketing. No evidence was adduced by the prosecution to establish that the appellant had any dishonest intention to contravene the provisions of the E.C. Act. D.W.1’s deposition, corroborated by the prosecution witnesses themselves shows that the appellant immediately disclosed the presence of the additional stock at his residence, and the same was duly verified by the vigilance officials.

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13. Further, P.W.6 turning hostile also weakens the prosecution’s case, as he was the only worker present during the raid who could have supported the allegation of manipulation or concealment. The mere shortage of 155 litres, without evidence of mens rea or deliberate violation, in a bulk stock exceeding 3,000 litres, cannot be said to constitute an intentional contravention warranting harsh penal consequences.

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14. It is also relevant that the appellant was 54 years old at the time of conviction and had no prior criminal antecedents. The total value of the alleged shortage, even as per the trial Court’s finding, was around Rs.750/-, which further demonstrates the trivial nature of the alleged irregularity.

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15. Taking into consideration the entire conspectus of the matter, it would be apt to rely on the judgment of the Hon’ble Supreme Court in Tarak Nath Keshari V. State of West Bengal , reported in (2023) SCC OnLine SC 605 , in which it was held thus: -

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“12. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is

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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.

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13. 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.”

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16. Having regard to the facts and circumstances of the case, it is seen

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that the appellant has already undergone a period of about three months as an undertrial prisoner and there is no previous conviction standing against him. The alleged contravention, on a close scrutiny, appears to be more technical in nature rather than intentional. Furthermore, nearly three decades have elapsed since the date of occurrence and the appellant has faced the ordeal of trial and appeal throughout this prolonged period.

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17. In view of these mitigating factors, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act. Additionally, the case of the appellant is also covered by the ratio of

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the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra , reported in 2012 (Supp-II) OLR 469 . Therefore, while not interfering with the judgment of conviction recorded against the appellant for the offence as stated above, I am inclined to grant the benefit of the Probation of Offenders Act so as to suffice the sentence part.

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18. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned, is turned down. The period of custody already undergone by the appellant (three months) shall be deemed sufficient for the purposes of Section 428 Cr.P.C. and this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount within a month 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

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concerned Probation Officer during the aforementioned period of six

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months. Bail bonds, if any, stand discharged.

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19. Accordingly, the Criminal Appeal is allowed and disposed of.

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(S.S. Mishra) Judge

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The High Court of Orissa, Cuttack.

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Dated the 28^th October, 2025/ Subhasis Mohanty

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Signature Not Verified

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Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 28-Oct-2025 17:15:59

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Ashok Kr. Sahoo v. State

Case brief

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Ashok Kr. Sahoo v. State

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