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2000 DIGILAW 562 (CAL)

AKBAR SK v. STATE OF WEST BENGAL

2000-11-17

P.K.SEN

body2000
P. K. SEN, J. ( 1 ) -THIS appeal is at the instance of a convict and is directed against a judgment and order of conviction passed by Sri P. K. Mitra, learned Judge, Special Court under E. C. Act, South 24 Parganas at Alipore on 3. 1. 87. Sri J. Nandi, S. I. , D. E. B. along with his party held a raid at Mitraganj Bazar with the Joynagar P. S. and visited the sugar shop of the accused (hereinafter referred to as the appellant) and found bags of sugar in the said sugar shop. On physical verification it was found that 24 plastic bags of sugar containing 30 Kgs. each marked as 'korean Refined Sugar' and also some loose quantity of sugar. The appellant could not account for such. Hence the stock of sugar was seized under a Seizure List in presence of witnesses and the complainant that is S. I. Sri J. Nandi filed a formal complaint and thus Joynagar P. S. Case No. 4 (1) 1987 commenced. The complainant that is who lodged the FIR conducted the investigation of the case himself and submitted a charge-sheet against the appellant under section 7 (1)A 2 of the Essential Commodities Act for having violated the provisions of para 3 (a) of West Bengal Sugar Dealers' Licensing Order, 1980. This appeal is at the instance of a convict and is directed against a judgment and order of conviction passed by Sri P. K. Mitra, learned Judge, Special Court under E. C. Act, South 24 Parganas at Alipore on 3. 1. 87. Sri J. Nandi, S. I. , D. E. B. along with his party held a raid at Mitraganj Bazar with the Joynagar P. S. and visited the sugar shop of the accused (hereinafter referred to as the appellant) and found bags of sugar in the said sugar shop. On physical verification it was found that 24 plastic bags of sugar containing 30 Kgs. each marked as 'korean Refined Sugar' and also some loose quantity of sugar. The appellant could not account for such. Hence the stock of sugar was seized under a Seizure List in presence of witnesses and the complainant that is S. I. Sri J. Nandi filed a formal complaint and thus Joynagar P. S. Case No. 4 (1) 1987 commenced. each marked as 'korean Refined Sugar' and also some loose quantity of sugar. The appellant could not account for such. Hence the stock of sugar was seized under a Seizure List in presence of witnesses and the complainant that is S. I. Sri J. Nandi filed a formal complaint and thus Joynagar P. S. Case No. 4 (1) 1987 commenced. The complainant that is who lodged the FIR conducted the investigation of the case himself and submitted a charge-sheet against the appellant under section 7 (1)A 2 of the Essential Commodities Act for having violated the provisions of para 3 (a) of West Bengal Sugar Dealers' Licensing Order, 1980. ( 2 ) THE case came up for hearing before the learned Special Judge under E. C. Act on the aforesaid charge. The prosecution examined 7 witnesses in all besides producing some documents. The defence adduced only one witness and at the conclusion of the trial, the learned Judge found the appellant guilty and convicted and sentenced him to suffer R. I. for 4 months and to pay a fine of Rs. 1000/- in default to suffer R. I. for 15 days more. ( 3 ) ON being aggrieved by such order of conviction and sentence, the instant appeal has been filed. Hence the hearing. ( 4 ) THE question for consideration before this Court is whether the prosecution was able to prove their case and whether the judgment under appeal can be sustained in law. Mr. A. K. Chatterjee, learned advocate appearing for the appellant has submitted before me that in this case the alleged raid was conducted on 3. 1. 87 in the shop of the appellant, but there is no evidence that the said shop room exclusively belong to the accused. But, on this point, he referred to the deposition of the prosecution witnesses. PW 3, S. I. , N. N. Mukherjee admitted in his cross-examination that paper was seized to show that Akbar Sk. that is the present appellant was the owner of the shop. PW 4, S. I. ,m. L. Mukherjee also stated in his cross-examination that it was not ascertained who was the owner of the shop. PW 5, who is a constable and who was present at the time of raid stated on oath that nothing was shown that the accused was the owner of the shop. PW 4, S. I. ,m. L. Mukherjee also stated in his cross-examination that it was not ascertained who was the owner of the shop. PW 5, who is a constable and who was present at the time of raid stated on oath that nothing was shown that the accused was the owner of the shop. PW 7 that is the de facto complainant as well as the investigating officer, in his cross-examination stated that no paper was seized to show that the shop was belong to the accused. He did not even try to ascertain as to whom the shop belong. Therefore, before the ownership was ascertained, prosecution submitted a charge-sheet alleging that sugar was found from shop room belong to the appellant. In a case of this nature, the prosecution is required to prove exclusive possession, that here is a case where prosecution failed to indicate that the room wherefrom the alleged seizure was made exclusively belong to the appellant. I do not know why it was possible for the investigating agency to submit a charge-sheet when there is no paper suggesting that the room wherefrom the sugar was seized actually belong to the appellant. This is a circumstance which struck a blow at the root of the prosecution case. ( 5 ) MR. Chatterjee further contended that here is a case where the complainant himself investigated the case. It is our common experience that a person who lodged the FIR will always see that the person against whom the FIR has been lodged is convicted. Therefore, investigation which he had conducted must not be free from any bias. I do not know what prevented the police to entrust the investigation to any other sub-inspector. The investigation by the de facto complainant himself goes to indicate that the case was not properly investigated and perhaps PW 7 submitted a charge-sheet with a view to see that the appellant is convicted, as he was a de facto complainant himself and set the law into motion. ( 6 ) THE defence taken by the appellant was that he prepared Moa, Patali and Batasa etc. and for that purpose purchased sugar for the manufacture of such Moa, Patali and Batasa etc. It is the defence case that the appellant along with Khokan and Swapan used to run the business jointly and manufactured Moa Patali and Batasa etc. ( 6 ) THE defence taken by the appellant was that he prepared Moa, Patali and Batasa etc. and for that purpose purchased sugar for the manufacture of such Moa, Patali and Batasa etc. It is the defence case that the appellant along with Khokan and Swapan used to run the business jointly and manufactured Moa Patali and Batasa etc. For the manufacture of such products, they purchased the sugar and as soon as it was unloaded, police came and arrested the said accused. When this appellant stated to the raiding officials that the cash memo for such purchased sugar was lying with Khokan and Swapan and waiting for the cash memo seized the sugar and started the case. ( 7 ) PW 1, Nasiruddin Khan stated that the appellant Akbar Sk. and Khokan and Swapan together used to deal in Moa Patali and Batasa etc. They had a shop where they manufacture and sale all those articles. The articles were brought by the same lorry from which the sugar was unloaded. It was unloaded at Joynagar Ganja Bazar. PW 1 further told that the place where sugar is unloaded belonged to Abul Kalam Azad. The appellant also told the officials that the seized articles belonged to him as well as to Khokan and Swapan, but the I. O. did not make any endeavour to interrogate them. PW 2, who is another seizure witness stated that he signed on a blank paper and no weighment was made. It is true that PW 1 and PW 2 were declared hostile by the prosecution but that cannot be a ground to eliminate their statements made on oath. ( 8 ) PW 3, N. N. Mukherjee stated in his cross-examination that there is nothing written in the seizure list that bags of sugar were recovered from two compartments. The defence case is that they unloaded the sugar on the open verandah belonging to Hazi Abdul Kalam. The learned Judge, who tried the case came to a finding that a defence could not prove the ownership of that verandah or permission of the owner was obtained so the defence plea cannot be accepted. A case commenced at the instance of a police depends upon on the witness adduced by the prosecution and not upon the weakness of defence case. A case commenced at the instance of a police depends upon on the witness adduced by the prosecution and not upon the weakness of defence case. Here is a case where the Judge relied upon the weakness of the defence case rather to weigh the evidence of prosecution. When the evidence is there, that appellant was ready to produce the case memo which according to him was then lying with Swapan and Khokan, a chance should have been given to the appellant to produce the same. ( 9 ) PW 5 stated that no books of account was seized. Without such seizure I do not know how it was possible for the police to come to the conclusion that the appellant failed to account for the possession. PW 5 also stated that besides sugar there was no other commodity in the shop room. The prosecution case is that the accused failed to produce any licence in running the shop of sugar. But the defence case is that the appellant has no shop for dealing with sugar. ( 10 ) THE learned trial Judge wholly relied upon the evidence of DW 1 and passed the above order of conviction. There are several infirmities in the evidence cited from the side of the prosecution, but ignoring those, the learned Judge passed the order of conviction. In answering to question No. 3 for examination of the accused, the appellant categorically stated that Khokan Pal and Swapan Pal and he himself are engaged in the business of Moya and the sugar was purchased for such purpose. But, learned Judge placed no reliance on this assertion. In answering to question No. 5, the accused replied before the learned Judge that they purchased the sugar and brought it by Lorry No. WB. 4208 and unloaded the same in the verandah of Hazi Abdul Kalam. He himself, Khokan and Swapan had come with the lorry and they i. e. Swapan and Khokan went to bring a rickshaw van for taking the sugar to their room, but in the meantime police came and had arrested the accused. I have already found from the evidence on record that this appellant offered an explanation for such possession, but the raiding officials did not pay any heed. PW 7 as I find was then interested to rope the accused and as such he did not wait for any single moment. I have already found from the evidence on record that this appellant offered an explanation for such possession, but the raiding officials did not pay any heed. PW 7 as I find was then interested to rope the accused and as such he did not wait for any single moment. Thus, this is a case where investigation was conducted in a biased manner with a view to see that the appellant is convicted. This had vitiated the trial and on this ground alone the order of conviction and sentence should be set aside. That above the evidence on record do not justify the above order of conviction and the impugned judgment suffers from inherent illegality, and cannot stand in the eye of law. ( 11 ) UPON a consideration of all the above aspects, I find that the judgment pronounced by the learned Judge is not a judgment at all and it is liable to be set aside. Accordingly, it is struck down. In the result, the appeal succeeds. The judgment and order of conviction are set aside. The accused would be released from bail bond forthwith. Appeal Succeeds.