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2002 DIGILAW 283 (CAL)

Sudhangshu Chandra Dey v. State of West Bengal

2002-04-26

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J. This appeal is directed against the judgement and order of conviction under section 7(1)(a)(ii) of the Essential Commodities Act for violation of para 3 of the West Bengal Rice and Paddy(Licensing & Control) Order, 1967 and para 3 of the West Bengal Sugar(Licensing & Control) Order, 1980 and sentence to suffer rigorous imprisonment for 2 years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for 4 months passed by Sri H. Ray, Judge, Special Court, E.C. Act, Jalpaiguri on 20.9.89 against the convict/appellant Sudhangshu Chandra Dey the accused/appellant' of this case. 2. The incident giving rise to the prosecution case against the accused/ appellant may be summarised as follows :- 3. Pursuant to the charge sheet submitted by P.W.1 Ranjit Kumar Sengupta, D.E.O. Sadar, Jalpaiguri arraigned in Special Court Case No. 21 of 1989 under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 to answer the following charges. "That you, on or about the 29th day of June, 1989, at your M.R Shop at Ramanpara within Kotwali P.S. during an inspection by the D.E.O.(Sadar) found 157 quintals 500 gms of rice, 43 quintals 750 gms. of sugar and 221 kgs. of wheat shortage in your stock and so you had violated para 3 of the West Bengal Rice & Paddy (Licensing & Control) Order, 1967 and para 3 of the West Bengal Sugar (Licensing & Control) Order, 1980 and thereby committed an offence punishable under section 7(1)(a)(ii) of the KC. Act and within my cognizance." 4. The accused/appellant pleaded not guilty to the aforesaid charge and claimed to be tried and the prosecution, in the instant case, in order to establish its case, has examined as many as five witnesses and the defence, on the other hand, has examined two witnesses to prove its contention. 5. Act and within my cognizance." 4. The accused/appellant pleaded not guilty to the aforesaid charge and claimed to be tried and the prosecution, in the instant case, in order to establish its case, has examined as many as five witnesses and the defence, on the other hand, has examined two witnesses to prove its contention. 5. The learned Trial Judge after examining the aforesaid witnesses and after hearing the arguments of the parties came to the conclusion that the accused/appellant has totally failed to discharge the legal obligation under section 14 of the E.C. Act in this case and ultimately found that there was an incident as alleged by the prosecution and the accused/appellant had committed the offence in question and thereafter he was pleased to sentence this accused/appellant to suffer RL for 2 years and to pay a fine of Rs.2000/-only, in default, to undergo a S.L for four months further. 6. Being aggrieved by and dissatisfied with the aforesaid order of conviction and sentence, the accused/appellant has preferred this appeal alleging, inter alia, that the learned Trial Judge misread the provisions of section 14 of the E.C. Act and misunderstood the scope thereof and has also failed to appreciate evidence on record on its true and proper perspective and as such there has been miscarriage of justice for which interference by this Court is necessary by way of setting aside the order of conviction. Hence, this appeal. 7. I have heard the learned counsel appearing for the convict/appellant as also the learned counsel appearing for the State/respondent. 8. Sri A.K. Adhya, learned counsel appearing for the convict/appellant drawing my attention to the evidence of P.W.1, Ranjit Kumar Sengupta, has submitted before me that the entire prosecution case rests solely on the testimony of the aforesaid witnesses, who at the first instance, inspected the premises in question of the Ration Shop and the house of the convict/ appellant and lodged one written complaint and himself took up the investigation case and ultimately filed charge sheet against the convict/appellant and as such this being an infirmity, the same is bound to reflect the credibility on the prosecution case. 9. 9. Of course, it is true that when such an occasion arises that one person has come to depose in a case as a complainant as also as an Investigating Officer, his evidence should be judged with a grain of salt and such evidence of the witness cannot be accepted without sufficient corroboration. But here in this case that will not be very much necessary because of the fact that in the instant case one special defence has been taken by this convict/appellant alleging that the articles were removed from the M.R. Shop to avoid further theft and the evidence adduced by both the parties and the materials available before this court, has clearly established the factum of shortage of the articles in the M.R. Shop as indicated above and the plea has been taken by the defence that since there was theft twice in the M.R. Shop, the ration articles were taken to the house of the present accused/appellant as per the instruction of the local gram panchayat and the convict/appellant duly applied for obtaining a permission of the Sub-Divisional Controller(Food & Supplies), Jalpaiguri much prior to the date of inspection. 10. The learned counsel appearing for the convict/appellant has strongly argued before me with reference to the aforesaid application(ext. A) that in this case from the aforesaid application and from the evidence adduced by the D.Ws. namely D.W.1(Jiten Roy), D.W.2CBaren Roy) it will be quite clear that this convict/appellant had no mens rea for committing the violation either of the para 3 of the Rice and Paddy(Licensing & Control) Order, 1967 or of para 3 of the Sugar(Licensing & Control) Order, 1980 so as to hold that there has been violation of the provisions of the Essential Commodities Act, 1955Chereinafter referred to as the 'Act 1955') and in absence of mens rea, this convict/appellant cannot be held to be liable for alleged violation. 11. The learned Addl. 11. The learned Addl. P.P. appearing for the State in connection with the above has forcefully contended that as per the provisions of the para 3 of the West Bengal Rice and Paddy(Licensing & Control) Order, 1967 and the para 3 of the W.B. Sugar(Licensing & Control) Order, 1980 together with the condition of licence, it has been made clear that the law provides certain things to be done in certain manner which amongst others includes direction regarding storage of the ration articles in the M.R.Shop and by removing those ration articles from the M.R. Shop, even on the plea of avoiding theft, which, however, could not be substantiated by the defence by way of discharging the onus as required under law as per the provisions of section 14 of the Act, 1955, it is quite certain that there has been violation of the condition, of the licence and also violation of the aforesaid provisions of the control orders and the offence of this kind being an offence of technical nature for keeping the articles away for the M.R. Shop, even on such unfounded allegation and without obtaining specific permission from the appropriate authority, the offence as complained of has been made complete in itself. 12. Section 14 of the Act, 1955 casts a burden on the accused who is prosecuted for contravening any order made under section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document to prove that he had such authority, permit, licence or other documents. 13. This is a section which has been specially enacted and where we find a departure from the general doctrine of criminal jurisprudence that prosecution must establish the guilt of the accused beyond reasonable shadow of doubts. But, it must be borne in mind that this section instead of raising a presumption of guilt, unless the contrary is proved by the accused, throws the burden of proof of the facts on the accused, and this burden is heavy on the accused and it can be discharged either by examining the witnesses or by eliciting favourable answers from prosecution witnesses during their cross-examination. And, in such a situation, unless the accused succeeds in proving beyond all reasonable doubts that he had no mens rea in the contravention of any particular clause of the order issued under the Act, the Court has to proceed under the assumption that the accused had the requisite mens rea. 14. Of course, some amount of evidence has been adduced from the side of the convict/appellant by examining the aforesaid defence witnesses and by producing certain documents(Ext. 'A') yet, the plea taken by the defence remained unfounded as it could not be proved by him that he obtained specific permission from the Sub-Divisional Controller(Food & Supplies), Jalpaiguri or from any other authority either. 15. Although the evidence adduced by the members of the panchayat was tendered to support the fact that they advised the accused/appellant to take the ration articles to his house after day's transaction and to bring those articles on the next day to his ration shop, yet, it seems to me to be improbable and impractical as in the evidence on record, it has come out clearly that the house of the convict/appellant was situated at a distance of 3 kms. from the M.R. Shop and for executing the aforesaid advice, allegedly given by the members of the gram panchayat, the accused/appellant had to incur lot of expend incur and the same could be solved in other way by appointing a night guard by expending a quite lessor amount, which he had to incur for taking those articles to his house after days work and to bring back those articles again on the next day to his shop. 16. From the judgment of the lower court, it appears that the learned Lower Court has quite ably discussed the aforesaid issue and has rightly dispelled the contention raised by the accused/appellant when it is patent that no permission was obtained by him from the appropriate authority, that is Sub-Divisional Controller(Food & Supplies), Jalpaiguri for keeping the articles in his house. 17. In such a situation, being in agreement with the views expressed by the ld. 17. In such a situation, being in agreement with the views expressed by the ld. Additional P.P. it can safely be concluded that the offence complained of has been established against the present accused/appellant and in that connection, I am rather tempted to hold that in view of the nature of the offence and the circumstances appearing therein, and the defence taken by the accused, however unfounded, the substantive sentence imposed upon this convict/appellant should be reduced to the period already undergone by him and in the facts and circumstances of this case, I am of the further view that the imposition of fine against the convict/appellant would be sufficient to meet the ends of justice. 18. In the light of the discussion held hereinabove, I hold that the prosecution in this case has been able to prove its case and as such the conviction imposed upon this convict/appellant is hereby maintained, but the substantive sentence of 2 years of imprisonment imposed upon this convict/appellant is reduced to the period already undergone by him and the convict/appellant is sentenced to pay a fine of Rs.8000/- i.d., to suffer S.1. for 6 months. 19. Accordingly, while upholding the conviction against "the convict/ appellant imposed by the trial Judge the substantive sentence imposed upon this convict/appellant is reduced to the period already undergone by him provided the convict/appellant deposits a fine of Rs.8000/-CRupees eight thousand only) within 6 weeks from today in the trial court failing which he would suffer S.I. for 6 months. 20. With the above modification, in the sentence, this appeal stands disposed of. 21. Let a copy of this order be sent down to the court below for information and necessary compliance. 22. The urgent xerox copy, if applied for, may be made available to the parties as expeditiously as possible. Appeal disposed of with modification.