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2006 DIGILAW 428 (CAL)

BIKASH CHANDRA BISWAS v. STATE OF WEST BENGAL

2006-07-18

S.P.TALUKDAR

body2006
S. P. TALUKDAR, J. ( 1 ) PETITIONER, Bikash Chandra Biswas, by filing the instant application under section 397/401 read with section 482 of the Code of Criminal Procedure sought to assail the judgment and order passed by the learned Sessions Judge, Hooghly, on 3rd March, 2006 in Criminal Appeal no. 50 of 2005 thereby affirming the judgment and order of conviction and sentence dated 18th August, 2005 passed by the learned Additional Chief judicial Magistrate, Serampore, in Criminal Case No. 226 of 2004. ( 2 ) GRIEVANCES of the petitioner may briefly be stated as follows : the petitioner is a businessman. Sheoraphully Regulated Market committee, being opposite party No. 2 herein, issued a notice alleging that the petitioner did not furnish statement of return. The Special Officer of the said Market Committee lodged a complaint against the petitioner before the learned Court of Additional Chief Judicial Magistrate for alleged violation of section 34 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. In response to the summons issued by the Court, the petitioner duly appeared. He pleaded not guilty to the accusation while being examined under section 251 of Criminal Procedure Code. The case was then taken up for trial. Two witnesses were examined on behalf of the complainant/ prosecution. On 18. 08. 2005, learned Additional Chief Judicial Magistrate, serampore, Hooghly passed an order convicting the petitioner under section 34 (5) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. The petitioner was convicted and was sentenced to pay fine of Rs. 100/- or i. d. to suffer imprisonment for five days. The petitioner was further directed to submit the return of Rs. 2,000/- to the o. P. No. 2 within two months from the date of passing of the order. The said order was challenged by the petitioner in a way of preferring an appeal which was registered as Criminal Appeal No. 50/2005. Learned Sessions Judge by judgment and order dated 03. 03. 2006 dismissed the said appeal thereby confirming the judgment and order of conviction and sentence by the learned Additional Chief Judicial magistrate, Serampore. Thereafter, the petitioner by filing such application sought for setting aside of the said orders. ( 3 ) MR. Learned Sessions Judge by judgment and order dated 03. 03. 2006 dismissed the said appeal thereby confirming the judgment and order of conviction and sentence by the learned Additional Chief Judicial magistrate, Serampore. Thereafter, the petitioner by filing such application sought for setting aside of the said orders. ( 3 ) MR. Milon Mukherjee, appearing as learned Counsel for the petitioner, at the very outset submitted that of the various points taken before the learned Courts below the point regarding requirement of sanction is not pressed. This is in the context of amendment whereby the provision relating to requirement of sanction was deleted. Mr. Mukherjee then submitted that there had been no service of notice upon the present petitioner/accused person. In this context, Mr. Mukherjee invited attention of the Court to the evidence adduced before the learned Trial Court. He submitted that there is, no doubt, evidence in support of the claim that notices were duly sent, there is no clear material available on record so as to suggest that notice was, in fact, served upon the present petitioner/accused person. Mr. Mukherjee submitted that such service of notice being a sine qua non, the case deserves to fall on that ground alone. ( 4 ) IT is interesting to note that Mr. Mukherjee took into consideration the fact that as a Court of Revision, this Court is not expected to get engaged in the appreciation of the evidence on record. He, However, quickly added that this Court certainly has the power to see if the concerned judicial authority acted in accordance with law or not. ( 5 ) ON behalf of the opposite party/state it was, however, submitted that scope of the instant application is rather narrow and limited. This Court certainly cannot look into the evidence on record in order to reappreciate the same. ( 6 ) ON perusal of the evidence which was adduced before the learned trial Court on behalf of the O. P. /complainant, it is found that notice was actually sent. It is. however, difficult to ignore the fact that PW-1 in his cross-examination categorically asserted that "bikashbabu got that letter". ( 7 ) MR. Mukherjee further submitted that the Market Committee for having not been duly constituted did not have the proper authority to issue any notice or to initiate any proceeding. Mr. It is. however, difficult to ignore the fact that PW-1 in his cross-examination categorically asserted that "bikashbabu got that letter". ( 7 ) MR. Mukherjee further submitted that the Market Committee for having not been duly constituted did not have the proper authority to issue any notice or to initiate any proceeding. Mr. Mukherjee in this context referred to section 5 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972, hereinafter referred to as 'the Act'. ( 8 ) RELYING upon the decision in the case of State of West Bengal vs. Manindra Nath Roy, reported in 1978 CHN 104, it was submitted on behalf of the petitioner that a market committee which is not duly constituted cannot have any authority in law to issue any notice. It was then submitted that committee is required to be constituted with, apart from others, a person representing the Bank financing the market committee. It was then submitted that the market committee under consideration in this case was not duly constituted in accordance with section 5 of the said Act and, as such, any action taken by such committee cannot have the support of law. ( 9 ) IN response to this, learned ounsel for the private Opposite party submitted that in view of an amendment which was given effect to in 1978 (Ref. W. B. Act 27/1978), it cannot be said that the action on the part of the committee was bad in the eyes of the law. Learned Counsel for the said private opposite party further contended that the judgment as relied upon by learned Counsel appearing on behalf of the petitioner/accused person related to a case which was not guided or governed by the said amendment. On behalf of the Pvt. O. P. , it was further submitted that section 11 of the act leaves no scope for controversy as it clearly lays down that no action of a market committee shall be called in question merely by reason of the existence of any vacancy, in or any defect in the constitution of, the Market committee at the time of taking such action. ( 10 ) MR. S. S. Roy appearing on behalf of the opposite party/state, submitted that in view of the submission made on behalf of O. P. No. 2, he was left with nothing further to add. ( 10 ) MR. S. S. Roy appearing on behalf of the opposite party/state, submitted that in view of the submission made on behalf of O. P. No. 2, he was left with nothing further to add. ( 11 ) GRIEVANCE relating to the constitution of the market committee in view of what was stated by learned Counsel for the Pvt. O. P. , does not seem to have much significance. ( 12 ) THE evidence on record go a long way to substantiate the allegation made on behalf of the prosecution. It is neither possible, nor desirable, to reappreciate the evidence. But it cannot be said that there had been such misappropriation of evidence that it can be held that the finding of the learned courts below suffer from illegality or impropriety. ( 13 ) CONSIDERING all these facts and circumstances, I find it difficult to appreciate the grievances ventilated on behalf of the petitioner. The present application being C. R. R. No. 1525 of 2006 stands disposed of accordingly and the petitioner is directed to comply with the judgment and order passed by the learned Trial Court positively within a period of two weeks from this date. ( 14 ) THE judgment and order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Serampore, Hooghly, dated 18. 08. 2005 in Criminal Case No. 226 of 2004 and that of the learned Appellate court dated 03. 03. 2006 in Criminal Appeal No. 50 of 2005 thus, stand affirmed. ( 15 ) CRIMINAL department is directed to supply urgent certified copy of this order, if applied for, to the learned Counsel for the parties, after due compliance with the legal formalities. Appeal disposed of.