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2007 DIGILAW 616 (CAL)

BAGLA RANJAN SAMANTA v. STATE OF WEST BENGAL

2007-08-13

ASHIM KUMAR ROY

body2007
( 1 ) THE appellant Bagla Ranjan Samanta has been convicted under section 7 (1) (a) (ii) of the Essential Commodities Act for alleged violation of conditions 5 (a)/6 and 7 (a)/7 (b) of the License issued under the provisions of paragraph 6 (2) read with Section 12 of the West Bengal Kerosene Control order, 1968 and under Section 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 as well as under Section 8 of the Anti Profiteering Act, 1958 and sentenced thereunder to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for one month for his conviction under section 7 (1) (a) (ii) of the Essential Commodities Act and to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- for his conviction under Section 8 of the Anti Profiteering Act, 1958, in default rigorous imprisonment for one month respectively, whereas, the appellant Desbandhu samanta was convicted under Section 7 (1) (a) (ii) read with Section 8 of the essential Commodities Act, 1955 for alleged violation of conditions of 5 (a), 6 and 7 (a)/7 (b) of the License issued under the Provisions of Paragraph 6 (2) read with Section 12 of the West Bengal Kerosene Control Order, 1968 and under Section 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 and sentenced to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500/-, in default rigorous imprisonment for one month on each count of charge. Hence, this appeal. ( 2 ) THE prosecution case against the appellants are as follows : - "the accused Bagla Ranjan Samanta was a licensed kerosene dealer under Section 6 (2) of the West Bengal Kerosene Control Order, 1968 having his shop at Dakshin Baishnabchak, P. S. Haldia. On 5. 4. 83 in between 4. 45 P. M. and 5. 30 P. M. Shri S. S. Mukherjee, P. W. 6, a sub-Inspector of police and the then D. E. O. Mahisadal, visited and inspected the said kerosene oil shop of the accused Bagla Ranjan samanta, who was then not present in his shop and found his father desbandhu Samanta transacting the business and attending the customers, in presence of the witness Tapan Das (P. W. 3) and ekadashi Karan. The accused Desbandhu Samanta failed to produce any stock-cum-rate board, stock register, sale register and returns and 450 litres of kerosene oil was also found in the said shop. Thereafter, the P. W. 6 submitted an Ejahar, Exhibit 5, with the O. C. Haldia P. S. against the said accused persons. During investigation it was transpired that the accused Bagla Ranjan Samanta executed a registered Ahmuktarnama, on 20. 12. 82, in favour of his Bhagnipati (brother-in-law), Jhantu Kamilya entrusting him to look after and carry on his said kerosene business. The said Jhantu Kamilya was also not found in the said shop. The accused Bagla Ranjan Samanta has failed to maintain daily accounts of receipt or sale of kerosene oil and to prove grant of proper cash memo for every sale and he did not exhibit prominently in front of the shop a Board disclosing that he is a licensed kerosene dealer and the schedule of maximum price of kerosene oil fixed by the appropriate authority. " ( 3 ) IT appears from the records of examination of the appellants under section 251 of the Code of Criminal Procedure, the substance of the accusation against them are as follows : "the accused Bagla Ranjan Samanta a licensed kerosene dealer under West Bengal Kerosene Control Order, 1968, having failed to maintain daily accounts of receipts, or sale of kerosene oil and to issue cash memo against every sale of kerosene contravened the conditions of license, and not displayed the Stock Board prominently in front of the shop contravened the provision of paragraph 3 (2) of the West Bengal Declaration of Stocks and Prices of the Essential commodities Order, 1977 and having failed to maintain the true account of kerosene oil acquired, held and sold by him contravened the provisions of Paragraph 6 (2) of the West Bengal Anti-Profiteering act, 1958 and the accused Desbandhu Samanta and Jhantu Prasad kamilya for abetting commission of such offences. " ( 4 ) THUS the appellants have been charged under Section 7 (1) (a) (ii)of the Essential Commodities Act and Section 8 of the Anti Profiteering Act, 1958 on the ground that at the time of the alleged raid the appellant deshbandhu Samanta, who was running the kerosene shop could not produce the Stock Register, Sale Register and other documents relating to the said business and no stock-cum-rate board was displayed in his shop room. Along with the appellants one Jhantu Kamilya was also charged under section 7 (1) (a) (ii) read with Section 8 of the Essential Commodities Act, 1955. ( 5 ) THE prosecution in order to establish charges against the accused examined total six witnesses, out of the said witnesses P. W. 1 Nishikanta mishra, P. W. 2 Monoj Kumar Mondal, P. W. 3 Tapan Kumar Das, P. W. 5 ram Chandra Maity are the public seizure witnesses. The P. W. 4 Narayan prasad De is a formal police witness, who recorded the First Information report and the P. W. 6 Shyam Sundar Mukherjee is the complainant and the Investigating Officer of the case. ( 6 ) DURING the trial all the public seizure witnesses viz. P. W. 1 nishikanta Mishra, P. W. 2 Monoj Kumar Mondal, P. W. 3 Tapan Kumar Das, p. W. 5 Ram Chandra Maity were declared hostile. Except the evidence of P. W. 6 Shyam Sundar Mukherjee, who happened to be both the complainant as well as the Investigating Officer of the case there is no evidence that at the time of the alleged raid no stock-cum-rate board was displayed in the shop room and on demand by the complainant the appellant failed to produce the same. ( 7 ) IT is a settled law by declaring a witness hostile the entire evidence of such a witness does not completely washed off and does not ipso facto liable to be rejected. The portion of the evidence which does not stand contradicted may very well be taken into consideration by the parties to their advantage. A witness even if declared hostile and cross-examined, nevertheless, it is open to the defence to rely on such evidence for the purpose improbabilising the prosecution case. In this connection reliance may be placed in the case of Balu Sonba Shinde v. The State of Maharashtra, reported in (2002)7 SCC 543 : 2003 C Cr LR (SC) 36 (Paragraph) and in the case of Shon Lal v. The State of Punjab, reported in 2004 SCC (Cr)226. In this connection reliance may be placed in the case of Balu Sonba Shinde v. The State of Maharashtra, reported in (2002)7 SCC 543 : 2003 C Cr LR (SC) 36 (Paragraph) and in the case of Shon Lal v. The State of Punjab, reported in 2004 SCC (Cr)226. ( 8 ) THE P. W. 1, Nishi Kanta Mondal, P. W. 2 Monoj Kumar Mondal and P. W. 3 Ram Chandra Mondal were not declared hostile for the reasons that they denied and disowned their earlier statement made to the police that at the time of the alleged raid on being asked by the police the accused who was present in shop failed to produce the relevant Stock Register, sale Register, Cash Memo Books and other relevant documents and no rate-cum-stock board was displayed in the shop, which is actual charge against the appellant but completely on a different count. There is no material to show that the said witnesses at all made any such statements to the police. Although the P. W. 3 Tapan Kumar Das the only other public witness was declared hostile, on the grounds amongst other, he allegedly disowned and denied his earlier statement made to the police that on being demanded by the complainant, the appellant could not produce the relevant stock register, sale register, cash memo book and other relevant documents relating to his business and no stock-cum-rate board was displayed in his shop. Still to impeach the -said witness declared hostile, the prosecution never examined nor the P. W. 6, Shyam Sundar Mukherjee testified that such statement was actually made to him by the P. W. 3 Tapan Kumar Das. Therefore, there is no material to show that the P. W. 3 had at all made any such statement far less that he resiled from the same. ( 9 ) THE Section 154 of the Evidence Act entitles a party, with the permission of the Court, to put any question to its witness whom it called, which might be put in cross-examination by the adverse party and Section 155 of the Evidence Act provides the mode as to how the credit of such a witness may be impeached with the consent of the court by the party who calls him. The sub-section (3) of Section 155 of the Evidence Act provides that the credit of the witness may be impeached by the party who calls him by proof of his former statement inconsistent with any part of his evidence which is liable to be contradicted. In the instant case when the P. W. 3 Tapan kumar Das was declared hostile and was cross-examined by the prosecution he was cross-examined with reference to his earlier statement made to the police and it was suggested to him that he stated to the investigating officer of the case that on demand by the Enforcement Officer the accused could not produce the Books of Accounts and the relevant register relating to his business and no stock board was found displayed at his shop room, to which the said witness denied to make such statement but to utter surprise to impeach the credit of the P. W. 3 in accordance with law the investigating officer of the case P. W. 6 was never examined by the prosecution with reference to the statement made to him by the P. W. 3 Tapan Kumar Das to show such a statement was actually made to the police by him. Consequently it was never proved by the prosecution that the P. W. 3 Tapan Kumar Das has resiled, disowned and contradicted from his earlier statement made to the Investigating Officer, thus, facts remained the stands taken by the said witness about not making such alleged statement to the police cannot be said to have been impeached and his such evidence may very well be referred and relied on by the defence in support of its case to show there is no independent corroboration to the evidence of the complainant police officer. ( 10 ) IN the instant case, beside the evidence of the complainant who admittedly without any proper entrustment or order took up the charge of investigation of the case, there is no other evidence to corroborate him that at the time of the alleged raid the appellant Deshbandhu Samanta failed to produce the relevant stock register and other relevant documents in connection with the kerosene business. In my considered opinion the evidence of the Investigating Officer of this case does not inspire confidence so much so that the same can alone be the sole basis of conviction of the appellants. In my considered opinion the evidence of the Investigating Officer of this case does not inspire confidence so much so that the same can alone be the sole basis of conviction of the appellants. In the result the appeal succeeds and allowed and the order of conviction and sentence is set aside. The appellant who are now on bail be discharged from the bail bond forthwith.