MADHU SUDAN PATNAIK Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Special Judge. Berhampur refusing to give consent for withdrawal of the prosecution under section 321 of the Code of Criminal Procedure ('Code' for short).

(2.) THE petitioner is the owner and opposite party No. 2 is the salesman of Mis. Shrinivash Highway Service Station at Rambha. An Inspector of Police (Vigilance) along with other officers inspected the premises of the petrol station at 8:40 a.m. of 10 -6 -1985 and found some irregularities, such as, the stock of petrol, diesel and lubricants was not exhibited on the declaration board, the stock and sale registers were not maintained up to date and there was shortage of 1218 liters of diesel. Seizure of books of accounts and other documents was effected and after closing of investigation. Charge -sheet was submitted for an offence under section 7 of the Essential Commodities Act for contravention of different clauses of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, Orissa Petroleum Products (sale by Dealers) Order and Orissa High Speed Diesel (Dealers' Licensing) Order. On 8 -7 -1986 the learned Special Judge explained the particulars of the offence alleged to have been committed by the petitioner and proceeded with the trial of the case by examining prosecution witnesses. When the case was pending for examination of defence witnesses, the learned Special Public Prosecutor engaged by the State to prosecute the petitioner and opposite party No. 2, on 23 -6 -1987 filed a petition under Section 321 of the Code for withdrawal of the prosecution. The petition was heard and by the impugned order the learned Special Judge refused to give consent for withdrawal of the prosecution mainly on the ground that if the evidence adduced by the prosecution is found to be insufficient to sustain a conviction, then the accused persons shall necessarily be acquitted and so insufficiency of evidence by itself would not be a ground to permit withdrawal.

(3.) THAT the hours of business was not investigated.