Manoj Kumar Mohanty vs State Of Odisha

S.K. Sahoo, J

The appellant Manoj Kumar Mohanty in CRA No.20 of 2001 and the appellant Narendra Sethi in CRA No.21 of 2001 faced trial in the Court of learned Special Judge, Rairangpur, Mayurbhanj in G.R. Case no.306 of 1999 (T.C.No.01 of 2000) for the offence punishable under section 7 of the Essential Commodities Act, 1955 (hereafter >E.C. Act?) for contravention of the provisions under clause 3(1) of the E.C. Act and clause 8 of the Orissa Rice and Paddy Control Order, 1965 (hereafter >1965 Order?).

The learned trial Court vide impugned judgment and order dated 21.12.2000/24.01.2001 found both the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- (rupees five hundred) each, in default, to undergo further R.I. for a period of seven days.

Since both the appeals arise out of one common judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment.

The case of the prosecution, as per the written report (Ext.3) submitted by P.W.2 Swapneswar Mishra, the Marketing Inspector, Bisoi on 01.09.1999 before the officer in-charge of Bisoi police station, in short, is that on 01.09.1999 at about 1.00 p.m. while he was moving in Bisoi market, the villagers of Asansikal namely, Biswaswar Sethi, Chandra Mahakud (P.W.3) and others of village Makhani Bahagida gave a petition to him at about 1.00 p.m. to the effect that appellant Narendra Sethi of village Asansikal was proceeding in his cycle by collecting rice from the Secretary, Bisoi Gram Panchayat retail shop which was located at the weekly hat padia of market complex shop no.7 without ration card. They detained the appellant Narendra Sethy with his cycle and rice. When P.W.2 asked the appellant Narendra Sethi about the authority of possession the rice, the appellant could not produce any document in support of the same except one A.P.L. card bearing No.229827 in which no entry was made about the supply of rice on 01.09.1999. He also verified the sale register of Bisoi Grama Panchayat and noticed that the Secretary had issued one quintal of rice in five ration cards vide nos.229999 of Rabindra Sethi (Ext.9), 229925 of Siba Sethi (Ext.10), 229918 of Subasini Sethi (Ext.11), 229923 of the appellant Narendra Sethi (Ext.12) and 229927 A.P.L. Card of Gangadhara Sethi (Ext.5) @ 20 kgs. per card. In this way, the Secretary had given one quintal of rice to the appellant Narenda Sethi. P.W.2 also verified the sale register of the Secretary of Bisoi G.P. who had issued 20 Kgs. of rice of A.P.L. rice in card no.229927. The appellant Narendra Sethi could not produce the ration cards in support of the B.P.L. category for which P.W.2 seized one quintal of rice, one bi-cycle and one A.P.L. card bearing no.229827 from the appellant. He also seized sale registers on production by the appellant Manoj Kumar Mohanty, Secretary of Bisoi Gram Panchayat.

On receipt of such written report, P.W.6 Dhiren Chandra Nanda, the O.I.C., Bisoi police station registered Bisoi P.S. Case No.62 dated 01.09.1999 under section 7 of the E.C. Act for contravention of section 3(1) of the E.C. Act and Clause 8 of the 1965 Order and directed P.W.7 Golaka Behari Biswal to take up investigation of the case. P.W.7 seized one quintal of control B.P.L. rice with a gunny bag loaded on a bi-cycle, A.P.L. card of Gangadhar Sethi, sale registers as per seizure list Ext.19 and examined other witnesses and again on 03.09.1999, P.W.6 took over charge of investigation from P.W.7. The B.P.L. cards vide Exts.9, 10, 11 and 12 were seized by P.W.6 on being produced by the appellant Narendra Sethi as per seizure list Ext.17 on 11.09.1999 and the appellant was arrested and the B.P.L. cards were left in the zima of the said appellant Narendra Sethi as per zimanama Ext.18 and the appellant Narendra Sethi was forwarded to Court on 12.09.1999 and on 20.10.1999, P.W.6 handed over the charge of investigation to his successor P.W.5 Narendra Nath Das, who left the seized rice in the zima of P.W.2 as per zimanama Ext.14. He also seized the tally register on being produced by appellant Manoj Kumar Mohanty as per seizure list Ext.15 and on completion of investigation, charge sheet was submitted on 24.12.1999 under section 7 of the E.C. Act against both the appellants.

The defence plea of the appellant Manoj Kumar Mohanty is that the appellant had taken one quintal of B.P.L. rice from him for five persons, who were the B.P.L. card holders. The defence plea of appellant Narendra Sethi is that he had taken one quintal of B.P.L. rice from the appellant Manoj Kumar Mohanty for the B.P.L. card holders.

In order to prove its case, the prosecution examined seven witnesses.

P.W.1 Birsing Nayak did not support the prosecution case for which he was declared hostile.

P.W.2 Swapneswar Mishra was the Marketing Inspector, Bisoi, who is also the informant in the case and he had seized the rice and some documents from the possession of the appellants.

P.W.3 Chandra Mahakud stated about the seizure of one quintal of rice, one cycle and some consumer cards by P.W.2 from the possession of appellant Narendra Sethi as per seizure list Ext.2.

P.W.4 Chandra Sekhar Mohanty was the B.D.O., Bisoi Block, who stated that appellant Manoj Kumar Mohanty had given one quintal of rice to appellant Narendra Sethi in five numbers of consumer cards and further stated that P.W.2 seized the sale register from appellant Manoj Kumar Mohanty as per seizure list Ext.1.

P.W.5 Narendra Nath Das, P.W.6 Dhiren Kumar Nanda and P.W.7 Golakh Bihari Biswal are the three Investigating Officers of the case.

One Naran Naik was examined as D.W.1 to substantiate the plea taken by the appellants and he stated that P.W.2 had falsely implicated the appellants in the case. He further stated that five B.P.L. card holders with their consumer cards had come to Panchayat on 01.09.1999, received the B.P.L. rice from the Panchayat and then they kept all the rice in one bag and stitched the bag and loaded the bag in the cycle of appellant Narendra Sethi and at that time, P.W.2 came, detained the bag and even though the B.P.L. card holders showed their respective cards to P.W.2, but the same was not accepted and P.W.2 took the full bag of rice and appellant Narendra Sethi to his office. He further stated that each of the B.P.L. card holders took 20 kgs. of rice for two months as they had not received any rice in the previous month.

The learned trial Court after analysing the evidence of P.Ws.2, 3 and 4 came to hold that appellant Manoj Kumar Mohanty had misappropriated 20 kgs. of rice of one Gangadhar Sethi and though he had entered the rice in the sale register on 01.09.1999 but in the A.P.L. card of Gangadhar Sethi, no entry was made in that respect. It was further held that the appellant Narendra Sethi had brought the cards of the B.P.L. card holders and received 80 kgs. of rice from the appellant Manoj Kumar Mohanty with his connivance and while he was transporting the same, he was detained by the villagers. The learned trial Court further held that in view of the evidence of P.W.4 that one person could not take one quintal of rice of five consumer card holders, the accusation against the appellants have been proved not only through the evidence of P.Ws.2 and 3 but also P.W.4. The learned trial Court further held that without entering the sale of rice in five consumer cards, appellant Manoj Kumar Mohanty entered the sale in the sale register and had given the rice in question to the appellant Narendra Sethi and therefore, violating the term and condition of section 3(1) of the E.C. Act and clause 8 of 1965 Order, the appellant Narendra Sethi had taken one quintal of rice and appellant Manoj Kumar Mohanty had given the said rice to appellant Narendra Sethi on 01.09.1999. The learned trial Court disbelieved the evidence of D.W.1 and came to the conclusion that the prosecution established its case against the appellants beyond all reasonable doubt as the appellant Manoj Kumar Mohanty sold one quintal of rice illegally to appellant Narendra Sethi with malafide intention and accordingly, found both the appellants guilty under section 7 of the E.C. Act.

Mr. Anshuman Ray, learned counsel for the appellants contended that not only the charge is defective but also there is no clinching evidence that any illegality has been committed by appellant Manoj Kumar Mohanty in selling the rice in question and appellant Narendra Sethi receiving the rice for five B.P.L. card holders and when the prosecution has not examined any of the B.P.L. card holders and D.W.1, the B.P.L. card holder stated not only about the receipt of the rice by B.P.L. card holders but also keeping the same in one bag and then loading it in the cycle of appellant Narendra Sethi, it cannot be said that merely because the appellant Narendra Sethi was found transporting the same, the ingredients of offence are attracted against him so also against the appellant Manoj Kumar Mohanty and therefore, it is fit case where benefit of doubt should be extended in favour of the appellants.

Mr. Manoranjan Mishra, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and contended that in view of the oral as well as documentary evidence, the learned trial Court has rightly come to conclusion that the prosecution has established the charge under section 7 of the E.C. Act against the appellants and therefore, the appeals should be dismissed.

Adverting to the contention raised by the learned counsel for the respective parties, let me now deal with the framing of the charge against the appellants.

The charge framed against the appellants reads as follows:-

“That, you on or about 1st day of September, 1999 at about 1.00 p.m. at Bisoi market building, room no.7 have misappropriated 100 kgs. of B.P.L. rice in contravention of clause 3(1) of E.C. Act and clause 8 of Orissa Rice and Paddy Control Order, 1965 and thereby committed an offence punishable under section 7 of the E.C. Act within my cognizance.”

The charge was framed on 28.02.2000 and it was read over and explained to the appellants to which they pleaded not guilty and claimed for trial.

Section 212 of Cr.P.C. states about the particulars as to the time and place of the alleged offence, and the person (if any) against whom or the thing in respect of which, the offence was committed are to be reflected in the charge, which are reasonably sufficient to give the accused notice on the matter with which he is charged. It further states, inter alia, that if the accused is charged with dishonest misappropriation of movable property, it shall be sufficient to describe the movable property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates.

The object in framing the charge is to give notice of the essential fact which the prosecution proposes to establish to bring home charge to the accused so that he may not be prejudiced in his defence. Section 464 Cr.P.C. states, inter alia, that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground of any error, omission or irregularity in the charge unless in the opinion of the Court of appeal, a failure of justice has in fact been occasioned thereby. In a criminal trial, a defective charge did not necessarily vitiate a criminal trial and result in the acquittal of the accused unless it was shown that any such defect had prejudiced him. Omission to give particulars in the charge will be cured by section 465 Cr.P.C. unless the defect occasions a failure of justice. The question of prejudice is ultimately one of the inference from all the facts and circumstances of each case. The reasonableness of the notice is the criterion by which the validity of the charge must be judged and this much depends in each case on the circumstances.

After going through the framing of the charge, it appears that not only the date and time and place of commission of offence has been mentioned but the quantity of the misappropriated B.P.L. rice has also been mentioned. It is also mentioned as to what provisions of E.C. Act and 1965 Order have been contravened and what offence is stated to have been committed by the appellants. A fair trial to the accused is a sine quo non in the criminal justice system, but at the same time, procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper-technicalities. In my humble view, there is no illegality or irregularity in framing of the charge by the learned trial Court and the manner in which the charge has been framed, the appellants have got sufficient notice of the matter with which they are charged and therefore, the contention raised by the learned counsel for the appellants on this score is not acceptable.

In the case in hand, in view of the stand taken by the appellants in the accused statement, it is apparent that the appellant Manoj Kumar Mohanty, the Secretary of Bisoi Gram Panchayat had sold one quintal of rice and the appellant Narendra Sethi was taking the said rice for five B.P.L. card holders.

P.W.2, the informant has stated that he has checked the sale centre and found that the appellant Narendra Sethi had given an endorsement that he was carrying one quintal of rice in four B.P.L. cards and one A.P.L. card and on his enquiry, he also found that the appellant Manoj Kumar Mohanty had given one quintal of rice in four B.P.L. cards and one A.P.L. card to appellant Narendra Sethi and appellant Manoj Kumar Mohanty had entered this in his sale register. The cards of the B.P.L. card holders were also seized as per seizure list Ext.17 and the consumer card numbers are 229999 (Ext.9), 229925 (Ext.10), 229918 (Ext.11) and 229923 (Ext.12).

P.W.3 has stated that if any old person or any person is unable to bring rice, one man can take rice from the sale centre for other persons. He further stated that there was no bus communication from Asansikala to Bisoi and they were going by cycle or foot.

P.W.4, the B.D.O. of Bisoi Block has stated that though at the spot the appellant Narendra Sethi could not produce the B.P.L. cards in support of the possession of rice but subsequently, he produced the cards after getting the same from appellant Manoj Kumar Mohanty and the B.P.L. cards stood in the name of Rabindra Sethi, Narendra Sethi, Siba Sethi and Subasini Sethi. He has further stated that five persons were coming in one time and while taking one quintal of rice in one bag for their convenience, they were distributing the said quantity of rice in their village in five shares. He further stated that the appellant Narendra Sethi had taken one quintal of rice from appellant Manoj Kumar Mohanty of his villagers for better movement of the rice.

The prosecution has not examined any of the B.P.L. card holders. It was the duty of the prosecution to examine them to show whether they had authorized the appellant Narendra Sethi to receive rice on their behalf from the appellant Manoj Kumar Mohanty or that the said appellant Narendra Sethi had illegally taken away their B.P.L. cards and in connivance with the appellant Manoj Kumar Mohanty, received the rice for illegal sale and thereby the offence of misappropriation has been committed.

D.W.1 Naren Naik has stated that on 01.09.1999, he had been to bring his B.P.L. rice from the Panchayat and at that time, Narendra Sethi, Siba Sethi, Subasini Sethi, Rabi Sethi and Narayan had come with him to Bisoi to take B.P.L. rice and then they all kept the rice in one bag and the bag was loaded in the cycle of appellant Narendra Sethi and all the B.P.L. card holders were present and they had shown their respective cards to P.W.2, which were not accepted and P.W.2 took the full bag rice and the appellant Narendra Sethi to his office. He specifically stated that since in the previous month, they had not received any rice, for two months at a time 20 kgs. rice was given to one consumer card holder. Except putting one question in the cross-examination by the learned Special Public Prosecutor that he was deposing falsely at the instance of the appellant Narendra Sethi, nothing has been elicited further to disbelieve the evidence of D.W.1. Law is well settled that while judging the veracity of witnesses, there cannot be any different yardstick for judging the prosecution witnesses or defence witnesses and the defence witnesses are to be given equal treatment with the prosecution witnesses. The Courts must overcome their traditional and instinctive disbelief of the defence witnesses. Equal weight is to be attached to the prosecution witness so also defence witness and merely because a witness is examined on behalf of the defence, he cannot be said to be an unreliable and untruthful witness.

No question has been put in the accused statement to any of the appellants as to whose consumer cards were utilized for taking one quintal of rice for misappropriation of the same. It was the duty of the learned trial Court to put questions to the appellants as to in respect of which B.P.L. cards/A.P.L. card the rice was received/misappropriated. No question has also been put to any of the appellants that the consumer cards which were used in taking the seized rice were not containing any entry relating to the sale of rice.

Law is well settled that the examination of the accused under section 313 Cr.P.C. is not a mere formality, the questions put and the answers given have great use and the accused must be given opportunity to explain each and every circumstance appearing in evidence against him. If a particular incriminating material is not put to the accused calling upon him either to admit or to deny or to explain the same, it can be never be used against the accused. Any circumstance in respect of which an accused was not examined under section 313 Cr.P.C., it cannot be used against him as omission is likely to cause serious prejudice to the accused.

In view of the foregoing discussions, I am of the humble view that when material witnesses on behalf of the prosecution have been withheld and the defence plea seems to be more acceptable, which also gets corroboration from the prosecution witnesses like P.W.3 and P.W.4 and there is no clinching evidence that the appellant Narendra Sethi while carrying the rice of five B.P.L. card holders has committed the act of misappropriation in connivance with the appellant Manoj Kumar Mohanty and when material questions have not been put in the accused statement, it cannot be said that the prosecution has successfully established the charge under section 7 of the E.C. Act against the appellants.

In the result, the Criminal Appeals are allowed. The impugned judgment and order of conviction of the appellants under section 7 of the E.C. Act is hereby set aside. The appellants are on bail by virtue of the order of this Court. They are discharged from the liability of their bail bonds. The personal bonds and the surety bonds stand cancelled.

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