STATE OF ORISSA Vs. GOURA CHANDRA BARIK

JUDGEMENT

(1.) THIS is an appeal against an order of the Additional District Magistrate (Judicial), Baripada acquitting the Respondent of a charge under Section 7 of the Essential Commodities Act, 1955 (Act 10 of 1955)(hereinafter referred to as the Act). It is not disputed that at about 2 p.m. on 22 -7 -1967, the Respondent was found near the Jamsula Check Gate which is situated in the district of Mayurbhanj and at a place about a few yards off from the Orissa -Bihar border, driving the truck bearing No. ORC 5097 which was loaded with 100 bags of rice. Two other persons Prabhudayal Khandelwalla and Gourahari Das were also alleged to be sitting in the truck along with the driver and were prosecuted along with him, but they were acquitted on a finding that the prosecution failed to establish their presence in the truck. The State has not appealed against the acquittal of these two persons. It is admitted by the Respondent that when the truck which he was driving was searched by p.w. 8, the Police Officer near the Jamsola Check Gate, it was found to contain 100 bags of rice and that he had no permit to carry the rice beyond the Orissa border. His sole defence was that he was not aware of the fact that the truck was loaded with bags of rice. According to him, the co -accused Prabhudayal Khandelwalla represented to him that some bags of Mohua flower belonging to him had to be transported from a place called Kalama and the Respondent agreed to do so on payment of Rs. 3/ - per mile. He went to Kalama with the truck but the goods were not there and then Prabhudayal asked him to drive the vehicle to Khantapara. At Khantapara the Respondent went to a nearby hotel to take his tiffin and by the time he came back, a coolly told him that the goods had already been loaded in the truck. He also found that the bags had been loaded and had been covered by tarpaulin. Bona fide believing that he was transporting bags containing Mohua flowers, he drove the truck but at Jamsola Check Gate, when the Police searched the vehicle, it was found to contain 100 bags of rice. The learned Magistrate found that the plea put forth by the Respondent appeared to be reasonably true and that the prosecution had failed to establish that the Respondent had the necessary mens rea to commit the offence with which he was charged.

(2.) IT is Dot disputed that rice is an essential commodity within the meaning of the Act. Sub -sections (1) and (2) of Section 3 of the Act, which are relevant for the purpose may be quoted in so far as they are material:

(3.) COMING now to the merits of the case, I am unable to accept the finding of the learned Magistrate that the Respondent was not aware that the load which he was carrying in the truck was rice. D.w. 1 was a coolly who actually loaded the bags of rice inside the truck at Khantapara mills. He says that by the time the rice bags were loaded in the truck on the direction of Prabhudayal, the Respondent driver was absent and bad gone to take tiffin elsewhere. The loading of one hundred bags of rice in the truck would have taken a considerably long time. Khantapara, as is well known is a small village and the driver, if at all be bad gone to take his tiffin, could not have gone a long distance from the mills. Even, otherwise, he could not have taken a considerably long time in taking tiffin so as to absent himself from near the truck during all the time which must have been occupied for loading the hundred bags of rice. If one merely felt the bags from outside, be would easily distinguish a bag containing Mohua flowers from a bag containing rice. Mohua flowers also have got a peculiar smell which one would not fail to notice. I am, therefore, unable to accept the plea of the accused that be was not at all aware that rice bags bad been loaded in the truck. While the truck was proceeding towards Jamsola Check Gate p.w. 8, the Sub -Inspector of Police and p.w. 3 the Police Constable who were standing near the Kalabadia crossing with a view to check motor vehicles, signaled the Respondent, to stop the truck near the crossing. It seems, the Respondent lowered down the speed a little but immediately afterward speeded up towards the Jamsola Check Gate. This naturally armed the suspicion of p.ws. 3 and 8 and they followed this truck by another vehicle which reached the crossing shortly afterwards and on reaching the Jamsola Check Gate, they found the Respondent 's truck there and on search found the bags containing rice. The Respondent admits that near the Kalabadia crossing, p.w. 8 signaled him to stop the vehicle and he says that he stopped the vehicle, but as nobody came near him, he proceeded towards Jamsola Check Gate. It is difficult to accept such an explanation. When p.ws. 3 and 8 who stood near the crossing only for the purpose of checking the vehicles and signaled the Respondent to stop the truck, they did so with a view to check it. If really the Respondent had stopped the truck, there is no reason to believe that p.ws. 3 and 8 would not have proceeded towards the truck. The very fact that they followed the truck immediately afterwards belies the Respondent 's statement that in spite of his stopping the truck near the crossing, p. ws. 3 and 8 did not go near it. I am, therefore, unable to believe the Respondent 's explanation that he did stop the truck and this conduct on the part of the Respondent is only consistent with the prosecution case that he knew that the truck contained bags of rice.