Gafar Vs State

convicted the accused-appellant under Section 7(1) (a) (ii) of the Essential Commodities Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs.2,000/-, in default, to undergo further R.I. for two months.

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2. The prosecution case in tersely stated is that on 05.01.1988 at about 10.30 P.M. when the Supervisor of Supplies along with the Inspector of Supplies and Marketing Intelligence Inspector G. Udayagiri were patrolling in Government Jeep, found that a truck bearing Registration No. O.R.P. 9639 loaded with bags at Kuchilaguda. On suspicion, they checked the bags and found that the bags contained groundnut seeds with shells and they also found that the groundnut seeds with shells were packed in 117 bags. Being questioned to show the permit, the appellant produced four vouchers and way bills showing transshipment of groundnut seeds with shells. When it was found that the appellant had possessed and was transporting groundnut seeds with shells of more than 40 quintals without having obtained license to store/ transport groundnut seeds, the spurious way bills and purchased vouchers were seized and prosecution report was submitted against him

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for contravention of Clause-3 of the Orissa Pulses, Edible Oil Seeds, Edible Oil Dealers (Licensing) Order, 1977, which is punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act.

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3. Heard Mr. D.P. Dhal, learned Senior Counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

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4. The prosecution in order to bring home the charges examined as many as six witnesses, whereas the defence took a stand of complete denial of the charges and claimed trial.

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5. P.W.1, was the Marketing Intelligence Inspector; P.W.2 was the Inspector of Supplies; P.W.3 was the Depot Manager In-Charge of Raikia R.C.M.S at G. Udayagiri, who took the seized groundnut shells in zima; P.W.4 was the driver of the involved truck; P.W.5, Basista Dehury, who submitted the P.R.; and P.W.6 was the Supervisor of Supplies and the leader of the raiding party.

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6. The trial court after thorough analysis of all the evidence on record arrived at the following conclusion:-

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“On the premises of the set forth above, this court is of the firm view that accused have contravened clause 3 of the Orissa Pulses, Edible Olis, seeds, Edible Oils (Dealers) Licensing Order,1977 punishable U/s.7(1)(a)(ii) of the Essential Commodities Act for having possessed 40.62 quintals of ground nut shells with seed without any authority to possess.”

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7. Mr. Dhal, learned Senior Counsel for the appellant, instead of challenging the conviction by assailing the judgment of the court below has limited his arguments to the quantum of sentence. He submitted that the accused at the stage of arguing on sentence before the learned Trial Court had also prayed for grant of the benefits under Section 4 of the Probation of Offenders Act, which was turned down by the learned Trial Court. The Trial Court while denying the benefit under the P.O. Act held thus:

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“Heard the accused (Convict) and the learned advocate for the accused(convict). Accused had urged upon the court to pass a linient sentence while imparting sentence to the accused. Offence under Essential Commodities Act has been attributed to be economic offence. Accused (Convict) it would be given benefits of P.O. Act, would be a misplaced leniency.”

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8. Learned Senior Counsel for the appellant further submitted that

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the incident pertains to the year 1988 (05.01.1988). The appellant has already undergone the rigors of trial for about eight years. Thereafter, the

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appeal was preferred in the year 1996 (11.03.1996). The appeal has been

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prolonging to be heard for about 29 years. At the time of incident, the appellant was 53 years old. At present he is octogenarian, about 82 years old, leading a respectful life along with his family. The learned Counsel additionally submitted that the appellant has 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 appellant may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C.

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9. 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

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Tarak Nath Keshari V. State of West Bengal¹ , in which it was held thus: -

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“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.

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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.”

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10. Besides the Judgment quoted above, regard being had to the procrastinated judicial process undergone, his societal position, clean antecedents and the fact that the incident had taken place in the year 1996, I am of the considered view that the appellant 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 squarely covered by ratio

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1 2023 SCC OnLine SC 605

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of the judgment of this Court in the case of Pathani Parida & another

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vs. Abhaya Kumar Jagdevmohapatra² .

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11. 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 to suffer imprisonment, 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) 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 shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.

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12. With the above observation, the Criminal Appeal is partly allowed.

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The High Court of Orissa, Cuttack. Dated the 19^th August, 2025/ Ashok

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Signature Not Verified2 2012 (Supp-II) OLR 469

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Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37

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Gafar v. State

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Gafar v. State

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