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Gauhati High Court · body

1995 DIGILAW 234 (GAU)

Santosh Bhowmik and Another v. State of Tripura

1995-11-02

A.K.PATNAIK

body1995
This is an appeal against the judgment dated 30th April, 1990 of the learned Special Judge, South Tripura, Udaipur in Special Case No. 13 (SC/B/1989 convicting the appellants under section 7 (1) (a) (ii) of the Essential Commodities Act, 1955 and sentencing the appellant No. l Sri Santosh Bhowmik to RI for two months and to pay a fine of Rs.1,000/- only and in default of payment of fine to suffer further RI for one month and sentencing the appellant No.2, Sri Subal Goswami to RI for two months and to pay a fine of Rs.200/- and in default of payment of fine to suffer RI for another 15 (fifteen) days. 2. The prosecution case, in brief, is that on 18.5.89 the Food Inspector submitted a written complaint to the Officer-in-charge of Baikhora Police Station stating that on 18.5.89 at 10 AM he inspected the East Charakbai FP Shop located at the Baikhora Market and verified the stock and sales registers of that shop belonging to the appellant No. l Sri Santosh Bhowmik for the period from 16.5.89 to 18.5.89 and found that he lifted 6,300Kg of ration rice vide DO No. l 71 dated 15.5.89 and sold 5,540 Kg of rice as per the sales register. On a physical verification stock of 850 Kg of rice was available with the dealer. Accordingly, he found an excess of 90 Kg of rice. Similarly, the dealer had lifted 450 Kg of sugar on 6.5.89 and had shown the stock of sugar in his stock register on 13.5.89 as nil. But the physical stock of the sugar found was 30 Kg which was unauthorised. It was further alleged in the aforesaid complaint that the appellant No. 1 did not maintain a price list showing the stock held by him and prevailing price of different commodities and he did not obtain the signatures of the ration card holders in the sales registers. The complaint was registered as Baikhora PS Case No.3 (5) 89 and the Officer-in-charge of Baikhora Police Station handed over the case to the SI of Baikhora Police for investigation. The complaint was registered as Baikhora PS Case No.3 (5) 89 and the Officer-in-charge of Baikhora Police Station handed over the case to the SI of Baikhora Police for investigation. The Investigating Officer seized the stock of rice and sugar, the stock and the sales registers, cash memos, the challans, the price list board in presence of the seizure list witnesses and at the time of seizure the appellant No.2, Sri Subal Goswami was a salesman of the dealer selling the goods at the FP Shop. After investigation of the case, he submitted chargesheet to the Court on the basis of which cognizance was taken and on the appellants' denying the charges, the case was tried by the Court. 3. In course of the trial, the prosecution examined four witnesses in support of its case. P W 1, the Food Inspector, stated that he inspected the FP Shop and verified the stock and sales registers of rice and sugar of the shop. He further stated that on 15.5.89 the dealer lifted 6,300 Kg of rice from the godown at Bagala and sold 5,540 Kg of rice as per sales register during the period 'from 16.5.89 to 18.5.89. Therefore, there ought to have been a stock of 760 Kg of rice but on physical verification it was found that the dealer had an excess of 90 Kg of rice in the shop. Similarly, he also inspected the stock of sugar and the stock register of sugar. In the stock register of sugar, the dealer had shown stock of sugar as nil on 13.5.89 though he had lifted 450 Kg on 6.5.89 and he had 30 Kg of excess sugar in stock. The dealer, however, could not give reasonable explanation for the excess rice and sugar in the stock and he did not display the price and stock of rice and sugar. He further stated that the dealer did not obtain signatures from the ration card holders in the sales register or in the cash memos. Accordingly, he lodged a complaint to the Officer- in-charge of the Baikhora PS marked as Ext 1 and the SI of Police of Baikhora PS came to the shop and seized 30 Kg of sugar and 90 Kg of rice as well as the stock and sales registers and display board in presence of seizure witnesses. The seizure lists were marked as Exts.2 and 3. The seizure lists were marked as Exts.2 and 3. The appellant No.2 wrote the entries in stock and sales registers for the relevant period marked as Exts.4, 5, 6 and 7. The two seizure lists witnesses were also examined as PW 2 and PW 3 and the Investigating Police Officer was examined as PW 4. 4. In examination under section 313 of Criminal Procedure Code, the appellant No. 1 Sri Santosh Kumar Bhowmik explained that the excess rice in rice bags were meant for NREP Scheme and the sugar bags were damaged and not saleable. The appellant No.2, Sri Subal Goswami denied that he was a salesman in .the FP Shop and also denied that he wrote the stock and sales registers. Ext A (series) showing receipt of rice under the NREP Scheme by the dealer and orders for supply of rice to different persons under the said scheme have been marked on behalf of the defence. ' 5. After considering the evidence, the learned Special" Judge held that so far as the charges relating to violation of the provision of Tripura Sugar Dealers' Licencing Order, 1971 and the Tripura Essential Commodities (Display of Stock and Sale price) Order, 1971 are concerned, he did not find from the chargesheet that the accused persons were charged for such violation and accordingly did not record any findings against the appellant with regard to the alleged excess stock of 30 Kg of sugar found to be in possession of the appellant No. 1 and with regard to the non display of stock and sale price of the essential commodities by the appellants. But so far as the excess stock of 90 Kg of rice is concerned the learned Special Judge held in the impugned judgment that maintenance of sales and stock registers by the owners of the FP Shop as provided in the Tripura Foodgrains (Distribution) Control Order, 1972 was mandatory and if any irregularity was found in the stock as per stock and sales registers then he must give reason able explanation for the same. He held that from the documents Ext A (series) it appeared that some rice was distributed from the FP Shop under the scheme of NREP, but from the stock registers it is not found that the stock meant for FP Shop under the Tripura Foodgrains (Distribution) Control Order, 1972 and stock for NREP Scheme were drawn jointly and hence the documents in Ext A (series) produced by the accused did not held in anyway. The learned Special Judge held that in the absence of any reasonable explanation from the side of defence it was clear that the two appellants had violated the provisions of clauses 14, 15 and 19 of the Tripura Foodgrains (Distribution) Control Order, 1972 made under section 3 of the Essentioal Commodities Act and were liable to be punished under the provisions of section 7 (1) (a) (ii) of the Essential Commodities Act, 1955. 6. At the hearing of this appeal, the main contention raised by Mr. B. Das, learned senior counsel for the appellants was that Ext A (series) would show that a part from the stock lifted by the appellant No. l for his FP Shop for sale, the appellant had also lifted some stock of rice under the NREP Scheme and that the excess rice 90 Kg found in possession of the appellants related to the unutilised stock of rice lifted under NREP Scheme. Mr. Das further submitted that this stock of rice under the NREP Scheme was not entered in the stock register and the sales registers of the FP Shop as the stock and sales, registers were only meant for the foodgrains distributed under the scheme contains^ in the Tripura Foodgrains (Distribution) Control Order, 1972. Mr. Das submitted that there was no violation of the provisions of clauses 14, 15 and 19 of the aforesaid Tripura Foodgrains (Distribution) Control Order, 1972 and accordingly the impugned judgment of learned Special Judge is erroneous, both on facts and law. The learned Public Prosecutor Mr. S. Das supported the impugned judgment of the learned Special Judge. 7. Clauses 2 (e), 3 (1), 14,15 and 19 of the Tripura foodgrains (Distribution) Control Order, 1972 are quoted below : "2. (e): 'Scheme' means the scheme for distribution of foodgrains to consumers through fair price shops set up by the Government in this behalf. 3. S. Das supported the impugned judgment of the learned Special Judge. 7. Clauses 2 (e), 3 (1), 14,15 and 19 of the Tripura foodgrains (Distribution) Control Order, 1972 are quoted below : "2. (e): 'Scheme' means the scheme for distribution of foodgrains to consumers through fair price shops set up by the Government in this behalf. 3. Appointment of Retail Dealer : (1) With a view to distributing foodgrains under the scheme, the Director, may by .order appoint in respect of any area any person as a retail dealer in respect of any foodgrains for the purpose of this Order and thereupon such retail dealer shall ,be entitled to supply in accordance with the provisions or this Order such foodgrains within such area. 14. Stock Register : An appointed retailer immediately on receipt of the foodgrains lifted by him from the Government godowns shall enter the same in appropriate stock register to be maintained by him in this behalf. 15. Sale of Foodgrains to Consumers : Every appointed retailer shall sell foodgrains to consumers in such quantities and at such rate, or rates as may be specified in the Order made from time to time by the State Government: 19. Daily Sale Register : Every appointed retailer shall also maintain a Daily Sales Register which shall be made upto date at the end of each day." A reading of clause 3 (1) quoted above show that a retailer is appointed for the purpose of distribution of foograins under the scheme. 'Scheme' has been defined in clause 2 (e) to mean the scheme for distribution of foograins to consumers through fair price shops set up by the Government. Accordingly, the stock register that is to be maintained under clause 14 quoted above would reflect only receipt of foodgrains lifted by the retailer from the Government godowns for the purpose of distribution to consumers through FP Shops. Similarly, the daily sales register that is to be maintained under clause 19 quoted above would reflect only the sales made by the retailer to consumers under the aforesaid scheme for distribution of foodgrains to consumers through FP shops. Similarly, the daily sales register that is to be maintained under clause 19 quoted above would reflect only the sales made by the retailer to consumers under the aforesaid scheme for distribution of foodgrains to consumers through FP shops. In otherwords, the stock of rice receipt by the appellant No. 1 under the NREP Scheme are not required to be reflected either in the stock or in the daily sales register required to be maintained under the aforesaid clauses 14 and 19 of the Tripura Foodgrains (Distribution) Control Order, 1972. 8. Op a perusal of the relevant extract of the stock register, Ext 7, and the relevant extract of the sales register, Ext 5, 1 find that they related only to the receipt and sale of rice under the scheme for distribution of foodgrains to consumers through FP Shop and do not relate to the receipt of stock of rice and distribution of the stocks of rice under the NREP Scheme. Thus receipt of rice under the NREP Scheme by the appellant No. l and the disposal of the same were not through stock register and the sale registers. The Food Inspector, PW 1 has admitted in cross-examination that rice of NREP and SREP Scheme were being distributed through ration shops to different people through the BDO of the respective Blocks and that the documents Ext A (series) related to distribution of rice under the scheme of NREP and SREP. In Ext A (series) it appears that on 16.2.89 the appellant No. l has drawn 1,130 Kg of rice from Bagala godown under the NREP Scheme. It also appears from the Ext A (series) that on 2.5.89, 10.5.89, 12.5.89, 15.5.89, 16.5.89 and 17.5.89 the appellant No. l was directed by the REO to supply different quantities office to different persons under the NREP Scheme. From the total 1,130 Kg rice drawn, by the appellant No. l on 16.2.89, it is quite possible that after supplying the rice as directed by the REO to1 different persons under the NREP Scheme a balance quantity of 90 Kg of rice remained with the appellant No. 1. Hence, the explanation given by the appellant No. 1 in his statement under section 313 Criminal Procedure Code that an excess stock of 90 Kg of rice was on account of the stock received under the NREP Scheme cannot be discarded altogether. Hence, the explanation given by the appellant No. 1 in his statement under section 313 Criminal Procedure Code that an excess stock of 90 Kg of rice was on account of the stock received under the NREP Scheme cannot be discarded altogether. To prove the offence beyond reasonable doubt, therefore, it was incumbent upon the prosecution to show that no such excess stock of 90 Kg of rice could have been available within the appellant No. l even after taking into consideration the stock received by him and supplied to different persons under the NREP Scheme. Unfortunately, the prosecution neither at the investigation stage nor at the stage of trial focused its attention to this aspect of the case. I am, therefore, of the opinion that the prosecution has not been able to prove beyond reasonable doubt that the appellants have contravened the provisions of clauses 14 and 19 of the Tripura Foodgrains (Distribution) Control Order, 1972. Regarding violation of clause 15 of the aforesaid Order, there is no direct evidence of any witness that the appellants had either refused to sell rice to any consumers holding a ration card or sold it at higher rates to consumers or at quantities higher than that was permitted under the orders of the State Government and it appears that the learned Special Judge had drawn the inference of violation of the aforesaid clause 15 casting an obligation on the retailer to sell foodgrains to consumers in quantities and rates specified in the order made by the Stat& Government from the fact of irregular maintenance of the stock and daily sales registers of rice under clauses 14 and 19 of the aforesaid Order. Since I have held that the prosecution has not been able to prove beyond reasonable doubt that clauses 14 and 19 had been violated by the appellants, the findings of the learned Special Judge that the appellants had violated clause 15 of the aforesaid Order also cannot stand. 9. Accordingly, the appeal is allowed and the impugned judgment dated 30th April, 1990 of the learned Special Judge, South Tripura, Udaipur in Special Case No. 13 (SC/B) of 1989 is set aside and the appellants are acquitted and the bail bonds shall stand discharged.