Judgment:
R.K. Dash, J.
1. The appellant stood charged under Section 7 of the Essential Commodities Act, 1955 ('Act' for short) for contravening Clause 3 of the Orissa Rice and Paddy Control Order, 1965 (hereinafter referred to as 'Control Order'). Upon trial learned Special Judge. Sundargarh held him guilty of the charge and accordingly convicted and sentenced him to undergo simple imprisonment for a period of six months. It is against this order of conviction and sentence that the present appeal has been filed.
2. In short the prosecution case was that on 11-6-1983 the Inspector of Supplies, PW 1 along with either officials made a surprise check to the shop-cum-godown of the appellant and found 33 Qtls. boiled rice to have been stored. On being asked the appellant could not produce any Iicence for storage of rice more than 10 Qtls. as required under the Control Order. So the aforesaid quantity of rice was seized under seizure list Ext. 1 and then left in the custody of the 'appellant on his executing zimanama Ext. 3 and finally prosecution was launched against the appellant to stand his trial under Section 7 of the Act for his having stored more than 10 Qtls. of rice.
3. While admitting the seizure of 33 Qtls. of rice, the appellant, however, pleaded that out of the 33 Qtls. of rice, 23 Qtls. did not belong to him, inasmuch as those had been stored by three other persons who deal in rice in the local market. In support of his such defence plea, he examined two witnesses, namely, D Ws 1 and 2.
4. Challenging the legality and correctness of the findings recorded by the Special Judge, counsel for the appellant would strenuously urge that prosecution could not be able to prove beyond reasonable doubt that the whole quantity of 33 Qtls. of rice had been stored by the appellant for sale and this initial burden having not been discharged, the presumption as contained in Sub-clause (2) of Clause 3 of the Control Order that one would be deemed to be a 'dealer' for having In his possession rice or paddy exceeding 10 Qtls. could not be attracted. Further submission of the counsel was that an accused in a criminal charge is required to substantiate his defence plea by standard of preponderance of probabilities and the appellant in the present case having led evidence proved that out of the seized rice, 23 Qtls. belonged to D Ws 1 and 2 and one Ram Laxman Singh, the learned Special Judge should not have rejected the said evidence on flimsy ground that no documentary evidence could be produced to show that those persons in fact had stored rice in appellant's godown.
5. On the other hand, learned Additional Standing Counsel for the State supporting the judgment of the trial Court contended that the ultimate conclusion arrived at by the learned Special Judge being based on appreciation of evidence and there having been no inherent improbability in such conclusion, the conviction and sentence recorded against the appellant should not be disturbed.
6. A ground was taken in the memorandum of appeal that cognizance of the offence taken by the Special Court was without jurisdiction since because the Marketing Inspector was not legally authorised under the Act to file complaint, inasmuch as under Section 12AA(i)(a) of the Act, as it stood before 1986 amendments special Court was empowered to take cognizance of the offence only on police report. In course of argument, however, such plea was abandoned perhaps in view, of the Division Bench decision of this Court in the case of M. Surya Rao v. State of Orissa : 1990 (II) OLR 250 where L. Rath, J. by making a detailed survey of the various provisions of the Act, came to hold that Section 12AA (i) (e) did not restrict the powers of the Special Court to take cognizance of an offence otherwise than on police report.
7. Coming to the factual aspect of the present, case, the prosecution by examining DWs 1 to 4 has successfully proved that 33 Qtls. of rice had been seized from the shop-cum-godown of the appellant. Added to it, the appellant in his statement recorded under Section 313, Cr PC has also admitted seizure of the said rice from his possession. His plea, however, is that 10 bags belonged to him and the rest belonged to Ranga Sahu (D W 1), Raju Singh (DW 2) and one Ram Laxman Singh. Seizure list Ext. 1 indicates that 33 Qtls of boiled rice kept 33 bags had been seized from inside the shop of the appellant. In view of the aforesaid clinching evidence and. the factum of seizure having not been disputed, the question arises for consideration is whether the appellant can be said to be a 'dealer' as defined in the Control Order. 'Dealer' according to Clause 2 (b) prior to 1985 amendment reads thus :
' 'Dealer' means any person who purchases, sells or stores in wholesale quantity rice or paddy or rice and paddy taken together, provided that if such a person happens to be a cultivator or landlord he shall not be deemed to be a dealer in respect of rice or paddy being the produce of the land cultivated or owned by him'
The expression 'storage in wholesale quantity' so defined in Sub-clause (1) of Clause 3 means storage of rice or paddy or rice and paddy taken together in quantity (i) exceeding ten quintals at a time inside the State of Orissa excluding the border area, and (ii) exceeding two quintals inside the border area.
As provided in Clause 3 to person shall act as a 'dealer' except under and in accordance with a licence issued in that behalf, by the licensing authority. Under Sub-clause (2) of the said Clause a person shall be deemed to be a dealer. Unless the contrary is proved if he stores rice or paddy or rice and paddy taken together exceeding ten quintals inside the State of Orissa. In the case in hand admitedlly the appellant was found to have stored 33 Qtls. of boiled rice in his shop-cum-godown. His defence plea, however, is that out of seized rice, 10 Qtls. belonged to him and rest to three others, namely, D Ws 1 and 2 and one Ram Laxman Singh, if this defence plea is accepted, then certainly the findings of the trial Court have to be set at naught.
8. True it is, evidence of a defence witness carries the same weight as that of the prosecution.' His credibility should not be doubted merely because his attendance has been procured by the accused. Prosecution witnesses are not necessarily truthful and the defence witnesses are false witnesses. When two versions are before the Court one by the prosecution and the other by the defence, it is for the Court to scrutinise and find out as to which of them is probable and believable. If on assessment of the evidence led by the parties probability factor echoes in favour of the defence, the Court should give benefit of doubt to the accused and acquit him of the charge. In the present case, the appellant no doubt examined two witnesses, namely, DWs 1 and 2 who unhesitatingly supported his version saying that they had kept 7 bags of rice each in the shop-cum-godown of the appellant. But then the question is whether their such version is to be accepted on its face value. It need be mentioned that the Marketing Inspector seized 33 Qtls. of rice under seizure list Ext. 1 and served a copy thereof on the appellant. As is evident from Ext. 1, appellant has put his signature thereon seized Ext. 1/4. Not only that, after seizure, the seized rice was left in the zima of the appellant on his executing zimanama Ext. 3 and his statement was also recorded by the Marketing Inspector under Ext. 4/1. Of course the contents of the statement are not taken into consideration to use the same in support of the prosecution case, but this much can be said that the appellant at the earliest point of time did not advance the plea that he was not the owner of the whole quantity of rice that was seized from his possession. In the seizure list as well as in his statement (Exts.1 and 4/1 respectively) he could have indicated that 23 Qtls. of rice belonged to others. He only advanced such plea balatedly in the confiscation proceeding as well as in the present criminal proceeding. In this view of the matter, it is difficult to believe the defence version that out of the whole 33 Qtls. of bailed rice, 10 Qtls. belonged to him and the rest to D Ws 1 and 2 and one Ram Laxman Singh. I would, therefore, believe the prosecution case and hold that the appellant had stored more than 10 Qtls. of rice in his shop-cum-godown without having any licence for which he is liable to be punished under Section 7 of the Act. The learned trial Court, in my opinion, has rightly convicted the appellant which needs no interference by this Court.
Coming to the question of sentence, it being an economic offence, the appellant is not entitled to the benefit of Probation of Offenders Act. However, keeping in view the nature and gravity of the offence and the quantum of rice seized, I would hold that ends of justice will be squarely met if the appellant is sentenced to undergo simple imprisonment for a period of one month.
9. In view of my discussions made above, while upholding the conviction of the appellant under Section 7 of the Act, the sentence of six months simple imprisonment awarded to him by the trial Court is reduced to one month.