Citation: 1977CriLJ1725

IN THE HIGH COURT OF ORISSA

Decided On: 23.03.1977

Appellants: Keso Sahu and Ors.
V
Respondent: Saligram Shah

Hon'ble Judges/Coram:
S. Acharya, J.

Subject: Criminal

Case Note:

Criminal - Conviction - Offence committed punishable under Section 341of the Indian Penal
Code,1860 (IPC) - Held, it was not necessary to prove that rice was actually being
smuggled out of Orissa - To get protection of that section it was sufficient accused persons
could show to a reasonable extent that they in good faith believed that offence of smuggling
of rice was going to be committed by cartmen and with that suspicion they stopped carts
from proceeding and also took part in taking carts and cartmen to police out-post -Their
suspicion might ultimately prove to be incorrect, but that would amount to a mistake of fact
and that act was committed in good faith, then Petitioners would get protection of said
section - Court was not justified in convicting Petitioners for an offence Under Section 341of
I. P. C - Hence, revision allowed.

ORDER

S. Acharya, J.

1. The petitioners stand convicted Under Section 341, I. P. C., and each of them has been
sentenced thereunder to pay a fine of Rs. 30/- ; in default to undergo R. I. for one month.

2. The complainant's case against the petitioners in short is that the complainant is a retail
dealer of rice and he had two shops, one at Nuagan and another at Suajore, On 2-5-1973
he received 27 quintals of rice to be sold on control price from the F. C. I. godown at
Nuagan. On 5-5-1973 very early in the morning, by about 4 A. M., the complainant was
transporting 11 quintals of rice in 12 bags in two buffalo-carts through Baisakhu Bhokta (P.
W. 3) from his Nuagan shop to his shop at Suajore. When the said bags of rice were being
taken to Suajore from Nuagan, the petitioners armed with lathis surrounded the carts and
the cart- men, did not allow them to proceed towards Suajore and wanted to take them
forcibly to the Bihar boarder. P. W. 3 was accompanying the buffalo carts. As the petitioners
behaved in the aforesaid manner, P. W. 3 came running to the complainant and informed
him about the said illegal action of the petitioners. The complainant went to the place where
the buffalo carts had been stopped by the petitioners, and when he accosted them he was
threatened with dire consequences, The petitioners thereafter forcibly took away the buffalo
carts to the Hatibari police out-post. The complainant explained the matter before the Police
Officer at the said out-post and also lodged a complaint about the said incident before the
local B. D. O. As no action was taken by any of them, the complainant filed this case
against the petitioners.

3. The defence plea in short is that Dalapati Naik (D. W. 1), a constable of the Hatibari
police out-post, who was on patrol duty in the Bihar and Orissa border line to check
smuggling of rice out of Orissa, asked the petitioners to help him in performing his said job.
Before dawn on the date of occurrence the petitioners along with the said constable and
one choukidar were in the look out of persons smuggling rice out of Orissa, and at that time
they found P. Ws. 1 and 4 carrying 12 bags of rice in two buffalo carts going towards Bihar
border, So they with D. W. 1 halted the two carts, and D. W. 1 took them to the police
outpost. The petitioners also went to the police out-post along with D. W. 1.

4. The court below has found that the petitioners restrained P. Ws. 1 and 4 from taking the
rice to Suajore and voluntarily obstructed those persons in proceeding in their own
directions and forcibly took them to the Hatibari police out-post. On the said finding the
petitioners have been convicted of an offence Under Section 341, I. P. C. and have been
sentenced thereunder as stated above.

As a non-appealable sentence has been passed against the petitioners, they have
preferred this revision.

5. Mr. Mukherjee, the learned Counsel for the petitioners, contends that the judgment of
conviction is illegal and incorrect in view of the fact that the court below has not considered
the facts and circumstances of the case in the perspective of Sections 76 and 79, I. P. C.,
and the findings arrived at by the court below are against the weight of the evidence on
record. He further contends that the court below on flimsy and unwarranted grounds
discarded the evidence of D. W. 1 who in very clear and unequivocal terms has testified to
the fact that the petitioners merely helped him in preventing smuggling of rice from Orissa
to Bihar and that it was he who stopped the buffalo-carts carrying the rice bags in question
and took the same to the outpost as he suspected that the said rice was being smuggled
out of Orissa to Bihar.

6. P. Ws. 1, 3 and 4 were the three persons who were accompanying the buffalo carts with
the rice bags thereon. Admittedly, the buffalo carts with the rice bags thereon were stopped
at a short distance (about 400 yards according to P. W. 1) from Suajore at about 4 A. M, on
the date of occurrence. The Bihar border, as it appears from the evidence of the
prosecution witnesses themselves, is not very far from that place. P. W. 3 in cross-
examination says that a bullock cart can be taken to the Bihar border through the paddy
fields from the place of occurrence. The distance by road between Nuagan and Suajore is
only 3 to 4 miles (P. W. 1). If the rice was intended to be sent to Suajore from Nuagan one
would not generally take the trouble of transporting it at 3-4 A. M. Transport of rice at that
hour might have aroused sus picion of smuggling in the minds of the people of that locality,
especially because of the proximity of the Bihar border.

Rice undoubtedly is an essential commodity, and its movement by export and import was
controlled Under Sections 3 and 4 of the Orissa Rice (Movement Control) Order, 1964
(hereinafter referred to as the 'Order'). The said order was passed Under Section 3 of the
Essential Commodities Act (hereinafter referred to as the 'Act'). Under Section 4 of the
Order, restrictions have been imposed for the transport or attempt to transport or abet the
transport of rice to any place in the border area from any place in the State of Orissa
outside that area, except under permits issued by the authorities mentioned therein or for
transport of rice coming within the proviso to that Order. Contravention of the restrictions
imposed by Sections 3 and 4 of the Order will come Under Section 3(2)(d) of the said Act
and will be punishable Under Section 7(1)(a)(ii) of that Act. That offence is & cognizable
offence as shown in Sch. II of the Cr. P. C., as it is punishable with imprisonment extending
up to 7 years as provided in Section 7 (1)(a)(ii) of the Act. Accordingly, Under Section 54 of
the Criminal P. C., D. W. 1, being a police officer, was legally authorised to arrest any
person who was concerned with any such cognizable offence or against whom there was a
reasonable suspicion that he was so concerned.

In the present case, the petitioners, while not denying the fact that they stopped the
buffalo carts, state that they stopped the said two buffalo carts as desired by D. W. 1,
the constable, who was in charge of patrol duty in that locality for checking
smuggling of rice, and thereafter the said constable took the carts and the cartmen
to the nearest police out-post and the petitioners also went with D. W. 1 to that out-
post. The fact that D. W. 1 and the Choukidar of Nuagan were present with the
petitioners at the place of occurrence was put to P. W. 3 in his cross-examination but
he denied the same. The constable (D. W. 1) has been examined as a defence witness
in this case, and he in unequivocal terms has stated that at the relevant time he was
attached to the Hatibari outpost and he had been deputed to check smuggling of rice
and other materials from Orissa to Bihar. He further states that on the date of
occurrence while he was on patrol duty on command certificate, he found two
buffalo carts carrying the rice bags in question proceeding towards village Odagan
in Bihar, and so he stopped those carts. In that act the petitioners and the Choukidar
of Nuagan helped him as he had called them for that purpose. From there, he took
the carts and the carlmen to the out-post. Random suggestions of his complicity with
the petitioners to share the sale proceeds of rice passing through that route were
thrown at him which he stoutly denied. Nothing has been elicited from or could be
placed on record to show that this public servant was in any way interested with the
petitioners or was inimical to the complainant and his witnesses in this case. He has
rather categorically stated that he bears no grudge or hostility against P. Ws. 1 to 4.

D. W. 1 was summoned as a defence witness and he has testified to as stated above.
Except some uncorroborated, casual and haphazard suggestions, there is nothing
on record to show as to why this police constable would come and depose in favour
of the petitioners. One of the reasons on which the court below has discarded his
evidence is that the defence took no steps to call for the personal diary of the said
constable and the command certificate issued to him for that date. The courts below
was not justified to entertain doubt on the evidence of D. W. 1 on the failure of the
defence to call for the said documents. The defence is not expected to prove its case
beyond all reasonable doubt. It is sufficient if the defence brings on record materials
on which the defence case may appear to be reasonably probable or reasonable
doubt can be entertained about the prosecution case. The testimony of D. W. 1 has
not been successfully assailed. Nothing could be placed on record to discredit the
unerring and straight forward evidence of this police man. The court below also
incorrectly entertained doubt on the evidence of D.W. 1 on the wrong premises that
the petitioners in their statements before the court did not state that D.W. 1 took the
buffalo carts to the out-post. As stated above, most of the petitioners stated in court
that with their help the consable (D.W. 1) stopped the buffalo carts and he took the
same to the out-post. I do not see any material contradiction between their
statements and the testimony of D.W. 1. Further, his evidence gets ample strength
and support from the complainant's admission that the rice in question was seized
by the police at the out-post and a criminal case in that connection was started
against him, and he was on bail in that case. He has further admitted that he went to
the police out-post and the local B. D. O. and complained about the aforesaid affair,
but nobody took any action in the matter.

On the unassailed evidence of D.W. I and on the above admitted facts, one
reasonably feels inclined to accept the defence version of the case as true. That
being so, if the petitioners merely helped D.W. 1 in stopping the buffalo carts and the
cartmen at the place of occurrence as desired by D.W. 1, it cannot be said that they
committed an offence of wrongful restraint punishable Under Section 341, I. P. C., as
D. W. 1 was legally competent to stop those carts and their cartmen, and for that
purpose was entitled to the assistance of the petitioners for that work.

7. Apart from that consideration, the buffalo carts as stated by D. W. 1, were stopped
as it was suspected that the rice bags on the said carts were going to be smuggled
out of Orissa to Bihar. So, for stopping the buffalo carts and the cartmen on the
asking of D. W. 1 and on the suspicion that the said rice was being smuggled out of
Orissa, the petitioners' case will also come within Section 79, I. P. C., which provides
that nothing is an offence which is done by any person who is justified by law or who
by reason of a mistake of fact, and not by reason of a mistake of law, in good faith,
believes himself to be justified by law in doing it. To bring one's case Under Section
79, I. P. C., it is not necessary to prove that the rice in question was actually being
smuggled out of Orissa. To get the protection of that section it is sufficient if the
accused persons can show to a reasonable extent that they in good faith believed
that an offence of smuggling of rice was going to be committed by the cartmen, and
with that suspicion they stopped the carts from proceeding further and also took part
in taking the carts and the cartmen to the police out-post. Their said suspicion may
ultimately prove to be incorrect, but that will amount to a mistake of fact, and if that
act is committed in good faith, then the petitioners will get the protection of the said
section.

8. On the above considerations I find that in the facts and circumstances disclosed
by the evidence on record the court below was not justified in convicting the
petitioners for an offence Under Section 341, I. P. C. Accordingly, the conviction of
the petitioners and the sentence passed against them thereunder cannot be
maintained, and are hereby set aside, and the petitioners are acquitted of the same.

The revision accordingly is allowed.