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2001 DIGILAW 52 (CAL)

Suresh Kumar Mittal v. State of West Bengal

2001-02-05

DEBIPRASAD SENGUPTA

body2001
JUDGMENT DEBIPRASAD SENGUPTA, J. 1. The present appeal has been preferred against the judgment and Order of Conviction and sentence passed by the learned Judge, Special Court (E.C. Act), Asansol in T.R. No. 34 of 1986 (D.E.B.- G.R. No. 44/185) thereby convicting the accused appellants under section 7(1) (a) (ii) of the Essential Commodities Act for violation of para 19(1)(a) of W.B. Rice and Paddy (Licensing & Control) Order, 1967 and sentencing each of them to suffer rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 1,000/- 2. The prosecution case in short is that on 26.7.1985 the D.E.O., Ranigunge along with force visited the shop-cum-godown of Mahabir Prasad Agarwal at Jamuria bazar, when the other accused Suresh Kumar Mittal, a salesman, was found conducting business in rice. On checking it was found that 580 bags of rice weighing 495 quintals 35 kgs. were in stock, but the stock register and the rate board showed 555 bags of rice weighing 485 quintals 28 kgs. and 900 grams. So there was an excess stock of rice weighing 10 quintals 6 kgs and 100 grams. The accused failed to account for such shortage in the stock. 3. On completion of investigation charge sheet was submitted by the police. The case was taken up for Summary Trial. To prove its case the prosecution examined three witnesses including the complainant who is also the investigating officer of the case. Two witnesses were examined on behalf of the defence. P.Ws. 1 & 2 are two watcher constables and the P.W. 3 is the complainant of the case. 4. Mr. Balai Chandra Roy, learned Advocate appearing for the accused appellants submits that no proper weighment was made in the present case. Calculation was made on the basis of assumptions. P.W.1 a watcher constable, who was present with the raiding party stated in his evidence that he could not say the total weight of the rice stock. He also stated that there were rice bags of different weight. In his cross-examination he stated that all the bags were not weighed and only 2/3 bags from the stocks were weighed. He further stated that in total 10/12 bags were weighed and the D.E.O made calculation of weighment on assumption. This witness further stated that he becomes witness in all cases and he always accompanies the superior officers in raids. In his cross-examination he stated that all the bags were not weighed and only 2/3 bags from the stocks were weighed. He further stated that in total 10/12 bags were weighed and the D.E.O made calculation of weighment on assumption. This witness further stated that he becomes witness in all cases and he always accompanies the superior officers in raids. P.W. 2 is also a member of the raiding party. He deposed that he could not say what the D.E.O. did inside the showroom. P.W.3 is the D.E.O, who conducted the raid and also investigated the case. He seized all the rice bags found in the shop including the excess quantity of rice by preparing a seizure list. He called two public witnesses at the time of seizure. This witness seized rice bags from the shop room as also from other two rooms. He did not take any note how many bags were seized from each room. He further deposed that he did not prepare any weighment chart. He also could not remember whether separate search list was prepared for each room. He made a rough calculation which he did not note in the C.D. 5. Mr. Roy submits that although two persons were named in the charge-sheet as witnesses to the seizure, those two persons were not examined in this case and the prosecution also failed to give any satisfactory explanation for such non-examination of those witnesses. 6. The next noticeable feature in the present case is that the P.W.3 DEO, who is the informant and conducted the search and seizure, investigated the case himself. Such procedure adopted by the investigating agency has always been deprecated by the Hon'ble Supreme Court as also by other High Courts. In support of his contention Mr. Roy relies on a judgment of the Hon'ble Apex Court reported in Bhagwan Singh vs. State of Rajasthan, AIR 1976 SC 985 . In the said case investigation of the case was undertaken by the informant himself. It was held by the Hon'ble Supreme Court that this is an infirmity which is bound to reflect on the credibility of the prosecution case. 7. Mr. In the said case investigation of the case was undertaken by the informant himself. It was held by the Hon'ble Supreme Court that this is an infirmity which is bound to reflect on the credibility of the prosecution case. 7. Mr. Roy next argues that in the present case the substance of accusation under section 251 of the Code of Criminal Procedure was put to the appellants by Sri N.N. Samaddar, Judge, Special Court, Asansol, who had also examined P.Ws 1, 2 and 3. The trial thereafter continued and conducted by another Judge Sri S.K. Bose who delivered the judgment. This is against the express provision of section 326 of the Code of Criminal Procedure and accordingly the entire is vitiated and the impugned judgment and order of conviction is liable to be quashed. 8. In support of his contention Mr. Roy relies on a judgment of the Hon'ble Apex Court reported in Payarelal vs. State of Punjab, AIR 1962 SC 690 . In the said judgment it was held by the Hon'ble Apex Court as follows:- "This was not a case of irregularity but of want of competency. Apart from section 350 which was not applicable to the case, the Code did not conceive of such a trial. The trial offended the cardinal principle of law, namely, that it is a right of an accused person that his case should be decided by a Judge who has heard the whole of it, the acceptance of which by the Code was clearly manifest from the fact that the Code embodied an exception to that principle in section 350. Therefore section 537 of the Code did not apply to such a trial. It could not be called in aid to make that was incompetent." 9. Mr. Roy next relies on a judgment of Karnataka High Court reported in Ramdas Kelu Naik vs. V.M. Muddayya & another, 1978 CLJ 1043. Relying upon the judgment of the Hon'ble Apex Court in the case of Payarelal (supra), it was held by the Id. Single Judge of Karnataka High Court that the cardinal principle of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. Section 326 Cr. P.C is an exception to the aforesaid cardinal principle of criminal law. Single Judge of Karnataka High Court that the cardinal principle of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. Section 326 Cr. P.C is an exception to the aforesaid cardinal principle of criminal law. Therefore except those cases which fall within the ambit of section 326, a succeeding Judge or a Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He is to try the case de novo. It was further held that if that cardinal principle is violated by particular Judge or a Magistrate, he would be doing something not being empowered by law. It was also held that it is an irregularity which cannot be cured in view of the provision of section 461 Cr. P. Code. 10. Mr. Roy next relies on a judgment of Andhra Pradesh High Court reported in Chandana Surya Rao vs. State of West Bengal, 1989 CLJ 2077. From a reading of the said judgment it appears that the accused petitioner was prosecuted under section 7 of the Essential Commodities Act for violation of para 21 of the Drugs (Price Control) Order, 1979. The Judge, who took cognizance of the offence, recorded the evidence and thereafter the case was transferred and the succeeding Judge pronounced the judgment. It was held that the order of conviction was vitiated. It was held in the said judgment as follows:- "Thus, sub-sections (1) and (2) of section 326, Cr. P.C. though empower the succeeding Judge or Magistrate to proceed with the case, sub-section (3) of the said section is an exception to the said sub-sections, as sub-section (3) says that nothing in the section applies to summary trials. Therefore, as per sub-section (3), whenever a summary trial case is dealt with by a Judge or a Magistrate, who takes cognizance of the offence and records evidence, the judgment must be pronounced by the same Judge or the Magistrate only; otherwise the same will vitiate." 11. Relying on the aforesaid judgments Mr. Therefore, as per sub-section (3), whenever a summary trial case is dealt with by a Judge or a Magistrate, who takes cognizance of the offence and records evidence, the judgment must be pronounced by the same Judge or the Magistrate only; otherwise the same will vitiate." 11. Relying on the aforesaid judgments Mr. Roy submits that the trial in the present case being conducted in a summary way, the entire trial was to be conducted by the same Judge in view of the provision of sub-section (3) of section 326 of the Code of Criminal Procedure, which was not done in the present case. Accordingly the entire trial is vitiated and the impugned judgment and order of conviction and sentence is liable to be set aside. 12. Mr. Sudipto Moitra, learned Additional Public Prosecutor submits that simply because there are minor discrepancies in the evidence of prosecution witnesses, the entire prosecution case should not be disbelieved. Mr. Moitra further submits that section 326 (3) Cr. P.C. does not have any manner of application in the present case. He draws the attention of the court to section 12AA(1)(f) of the E.C. Act which provides that all offences under this Act shall be tried in a summary way by the special Court. E.C. Act is a special statute in which special provision is made by which a warrant triable case is ordered to be tried as a summary trial. Only because of such special provision made in the Essential Commodities Act the Special Judge has to adopt the summary procedure. In such a case, according to Mr. Moitra, section 326(3) Cr. P.C. does not have any manner of application. Mr. Moitra further submits that no prejudice is caused to the accused by continuation of the trial by a succeeding Judge and such point was never raised by the accused in the trial court. Therefore it cannot be raised now. At this appellate stage such point should not be taken into consideration. 13. I have heard the learned Advocates of the respective parties. I have gone through the impugned judgment and order of conviction and sentence as also the entire evidence on record. In the present case the prosecution has come up with an allegation of excess stock of 10 quintals of rice in the shop-cum-godown of the appellants. 13. I have heard the learned Advocates of the respective parties. I have gone through the impugned judgment and order of conviction and sentence as also the entire evidence on record. In the present case the prosecution has come up with an allegation of excess stock of 10 quintals of rice in the shop-cum-godown of the appellants. But in the evidence adduced by the prosecution it is found that no proper weighment of rice was made. Even no weighment chart was prepared. P.W.1 has stated in his cross-examination that weight of the rice bags was calculated on assumption. Only 2/3 bags were weighed from each stack. He further stated that in one stack there were bags containing 100 kgs and in another stack there were bags containing 80 kgs. P.W.3, who conducted the raid and is also the informant and investigating officer of the case, deposed that bags were weighed by the watcher constables, but no weighment chart was prepared by him. He further stated that he made a rough calculation, but he did not keep the same in the case diary. 14. It is also evident that two independent witnesses to the search and seizure were withheld by the prosecution and no explanation is given by the prosecution for such withdrawal/non-examination of such witnesses. 15. P.W.3 is the officer who conducted the search and seizure. He is the informant and also the investigating officer of the case. This is an infirmity which, according to the decision of the Hon'ble Supreme Court in the case of Bhagwan Singh (supra), is bound to reflect on the credibility of the prosecution case. 16. It appears that the trial court failed to notice the above circumstances which throw considerable doubt on the prosecution case against the appellants. Since the prosecution case can not be said to be free from reasonable doubt, the impugned order of conviction and sentence is liable to be set aside. 17. As regards the applicability of section 326(3) of the Code Criminal Procedure I find sufficient merit in the submissions made by Mr. Roy, learned Advocate of the appellants. Since the prosecution case can not be said to be free from reasonable doubt, the impugned order of conviction and sentence is liable to be set aside. 17. As regards the applicability of section 326(3) of the Code Criminal Procedure I find sufficient merit in the submissions made by Mr. Roy, learned Advocate of the appellants. Following the decision of the Hon'ble Apex Court in the case of Bhagwan Singh (supra), the decision of Karnataka High Court in the case of Ramdas Kelu Naik (supra) and the decision of Andhra Pradesh High Court in the case of Chandana Surya Rao (supra), I am of the view that in a case under the Essential Commodities Act, which is to be tried as a summary trial, the provision of section 326 (3) Cr. P.C. is very much applicable. The learned Special Judge who tries the case must pronounce the judgment. Otherwise it amounts to irregularity vitiating the entire trial. If the learned Judge is transferred in the midst of a trial, the succeeding Judge must proceed with the trial afresh and pronounce the judgment. 18. In view of the discussions made above the appeal is allowed. The impugned order of conviction and sentence is hereby set aside and the appellants are acquitted. Appeal allowed.