Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 164 (GAU)

Angalal Debnath v. State of Tripura

2001-06-13

B.B.DEB

body2001
This criminal appeal is preferred by the accused-appellants against the judgment of conviction and sentence dated 26.7.1996 passed by the learned Special Judge, West Tripura, Agartala in Special Court Case No.3 of 1995 convicting the accused-appellants under section 7 of the Essential Commodities Act and imposing a sentence of RI for one year and a fine of Rs. 5,000 each, in default RI for another three months. 2. The prosecution case leading to the trial, conviction and present appeal can be briefly narrated as under: Shri Satya Prakash Choudhury, Sub Inspector of Police, Enforcement Branch, Agartala lodged a suo motu FIR to the Officer-in-charge of West Agartala Police Station alleging, inter alia, that he along with his staff visited Lankamura Fair Price Shop No.2 on 6.1.1995 and searched the Fair Price Shop, took into custody the relevant records and documents, verified the stock and found manipulation in records and stock of commodities, found the Display Board not properly maintained and as such he lodged the complaint vide West Agartala PS Case No.2/95 under section 7 (1) (a) (ii) of the Essential Commodities Act. The O/C endorsed the case to the said Sub Inspector, Shri Satya Prakash Choudhury for investigation and on completion of investigation, he furnished the charge sheet. The learned Special Court took cognizance, examined the accused under section 251 Cr PC to which the accused claimed to be tried and thus the learned trial Court conducted the trial. The prosecution examined as many as six witnesses while the defence none. On conclusion, the accused Shri Angalal Debnath and Shri Narayan Ch Debnath have been convicted and sentenced as already mentioned. 3. The learned trial Court after appreciating the evidence recorded its findings details of which are available in paras 8, 9, 11 and 12 of the judgment. Having relied upon the testimonies of PW1, Shri Satya Prakash Choudhury, Sub Inspector of Police, Enforcement Branch, the learned trial Court held that on 18.9.94 according to the stock register and sale register of the Fair Price Shop the opening balance should have been 120 Kg while the figure T before figure 20' was found over written. On 19.9.94 the accused dealers received 2000 Kg rice vide DO No. 434 from the Govt stock and as such the total stock on 19.9.94 should have been 2120 Kg of rice. On 19.9.94 the accused dealers received 2000 Kg rice vide DO No. 434 from the Govt stock and as such the total stock on 19.9.94 should have been 2120 Kg of rice. The accused have shown sale of 290 Kg of rice and as such the balance should have been 1830 Kg but it was shown as 1730 Kg So this shortage of 100 Kg of rice has been committed by the accused-appellants by manipulating the record. The learned trial Court also put reliance upon Exts P4, P5 and P6, three ration cards and held that the entries of the ration commodities alleged to have been sold to the ration card holders remained not entered into the ration cards and as such the learned trial Court arrived at its finding of guilt. 4. Mr. PK Biswas, learned counsel appearing on behalf of the appellants submits that the investigation was carried out not in accordance with the law. PW 1 Shri Satya Prakash Choudhury was the informant and he conducted the investigation which is not permissible under the law. Before recording the FIR, said PW 1 started the investigation and caused the seizure of the commodities and as such the search and seizure have been done having no sanction of law. The learned counsel for the appellants further submits that in the seizure list there remained no mention as to manipulation of figure ' 1' in the figure 120' having penned through the figure ' 1'. Had this over writing or pen through or writing manipulation been there visible in the related register, the Investigating Officer ought to have mentioned the same in the seizure list itself or in any event ought to have made the mention in his case diary, but these are totally lacking and as such according to the learned counsel for the appellants, over writing appeared in the related register by which the figure ' 1' was penned through from the figure 120' might have been committed while the related register had been under the custody of the Investigating Officer after seizure and as such for - that manipulation the appellants cannot be held guilty. 5. 5. It is correct that had the figure ' 120 Kg' been there, the balance of the food grains would have been found to be correct and in conformity with the sale register and as such it is very difficult to believe that the appellants manipulated the figure ' 1' creating a circumstances against their own interest. 6. From the seizure list it appears that the investigating agency did not make any mention as to the finding of some over writing in the figure ' 120 kg' in the related register. During examination PW 1 did not divulge whether he recorded the same in his case diary and as such it is very difficult to believe that there was any over writing in the figure ' 120 Kg' at the time of seizure. 7. The learned counsel for the appellants submits that investigation had been commenced at 10.00 AM and concluded at 4.10 PM on 6.1.1995 as available from the testimony of PW 1 who deposed that he visited the Ration Shop at 10.00 AM and left the Ration Shop at 4.10 PM and this PW also deposed that on secret information he rushed to the Fair Price Shop of the appellants making a GD Entry and on return from the Fair Price Shop he lodged the FIR. 8. In view of section 157 of the Cr PC, a police officer not below the rank of Sub Inspector of Police can undertake an investigation on a cognizable offence on the basis of reported first information or 'otherwise'. In the present case, undoubtedly at the time of commencement of the investigation at 10.00 AM on 6.1.1995 there was no FIR and the seizure list prepared on that day contains reference of GD entry number instead of FIR. The registration of FIR obviously, is not a sine qua non for commencing investigation in a cognizable case, but that must be on the basis of some information for which the Parliament very carefully put the words on the basis of 'information' or 'otherwise'. In the present case, it reveals that PW 1, the Investigating Officer rushed to the spot and commenced with the investigation on the basis of GD entry (General Diary of the PS) bearing No. 270. In the present case, it reveals that PW 1, the Investigating Officer rushed to the spot and commenced with the investigation on the basis of GD entry (General Diary of the PS) bearing No. 270. The reference of the said GD entry is also available in the seizure list, but unfortunately during trial the prosecution could not produce the said GD entry before the Court. In this case that GD entry is the document legally termed to be an item referred as 'otherwise' under section 157 of the CrPC and as such the entire investigation had been carried out on the strength of that GD entry disclosing commission of cognizable offence and for all practical purposes the said GD entry is to be treated as FIR authorising the police officer to undertake the investigation. Defence has a statutory right to test the veracity of PW 1, the informant touching the entries available in the said GD for the purpose of contradiction, but the prosecution having withheld the said GD Book, deprived the appellants for exercising their statutory right of defence and it caused prejudice to the defence. 9. The investigation virtually started at 10.00 AM on 6.1.1995 on the basis of the said GD entry while the Investigating Officer conducted search of the Fair Price Shop belonging to the appellants and taken into custody the stock book, sale book and other documents preparing seizure list and thereafter, the said Investigating Officer lodged the FIR. So, apparently the informant is the Investigating Officer which is opposed to the fair play and it lacks the confidence of impartial investigation. The Officer-in-charge of the police station should have endorsed the case to other officer for investigation and PW 1, Shri Satya Prakash Choudhury could have been cited as the vital witness of the case. A witness of a particular incident, be he informant or otherwise, cannot be allowed to investigate the case himself. That basic principle in-built in the fair and impartial investigation under section 157 Cr PC has been violated in the present case. 10. The prosecution case is that the accused-appellants manipulated the figure' 120' by over writing the figure' 1', but there was no mention available in the seizure list nor there is anything in the case diary as has already been pointed out above. I am not inclined to believe the testimony of PW 1 on that score. 11. 10. The prosecution case is that the accused-appellants manipulated the figure' 120' by over writing the figure' 1', but there was no mention available in the seizure list nor there is anything in the case diary as has already been pointed out above. I am not inclined to believe the testimony of PW 1 on that score. 11. During examination under section 313 of the Cr PC the learned trial Court did not put any question to the appellants as to the manipulation of figure ' 1' in the figure' 120 Kg' available in the related register and as such the liability for over writing the figure 1' in the figure 120' cannot be fastened upon the appellants in absence of any lawfully admissible evidence on record. 12. After taking cognizance of the offence the learned trial Court examined the accused appellants under section 251 Cr PC. The gist of the allegation had been read over to the accused-appellants and thereafter, they were asked either to admit or to take defence. The relevant portion of the question put under section 251 Cr PC is reproduced below : "............ and as such committed an offence punishable under section 7 ( 1 ) (a) ,(ii) and 9 (ii) of the EC Act. Do you confess your guilt?" The appellants have been convicted by the impugned judgment and the effective portion of the conviction so recorded by the learned trial Court as available in para 1 8 of the judgment is reproduced below : "18. The accused persons were found guilty for commission of an offence punishable under section 7 of the EC Act and accordingly I propose to convict them under section 7 of the EC Act and sentence them to suffer RI for one year and to pay a fine of Rs. 5,000 (Rupees five thousand) each. The accused persons prayed for mercy before the Court." 13. It reveals that the accused-appellants had been asked to face the trial for commission of offence under section 7 (1) (a) (ii) of the EC Act while they , have been convicted under section 7 of the EC Act. On bare perusal it appears that there is no provision called ' Section 7' under the EC Act. It reveals that the accused-appellants had been asked to face the trial for commission of offence under section 7 (1) (a) (ii) of the EC Act while they , have been convicted under section 7 of the EC Act. On bare perusal it appears that there is no provision called ' Section 7' under the EC Act. It starts with 7(1) of the EC Act and there is no provision for convicting an accused under section 7 of the EC Act without specifying the sub-section and clause thereunder. This omission in referring the section in the conviction order reflects non-application of mind by the learned trial Court. 14. Under the aforesaid discussion, I am constrained to hold that the findings arrived at by the learned trial Court that the accused-appellants manipulated the relevant records appears to be based on no admissible evidence. The investigation was carried out not in accordance with the sanctioned provision of law resulting prejudice to the defence. Non-production of the GD entry, which is the foundation of the investigation also denied the defence to take contradiction of the entries available in the GD with reference to the oral testimonies of PW 1 before the Court and the cumulative effect of all these commissions and omissions led me to allow the benefit of doubt to the appellants. 15. In the result, the appeal succeeds. The appellants are acquitted on allowing the benefit of doubt.