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2008 DIGILAW 314 (CAL)

Dilip Kumar Panda v. State of West Benagal

2008-03-20

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) THE appellant was convicted by the learned Judge, Special court (EC Act), Tamluk on 22.12.1987 under section 7 (1) (a) (ii) of the EC Act and section 9 (ii) of that Act for contravention of the provision of para 5 (2) of west Bengal Licensing of Dealer of cement and Distribution of Levy Cement order, 1982 (for short the Order). (2.) PARA 5 (2) of the Order reads as follows: "every licensee shall maintain separately for each place of business, a register containing correct and true accounts of purchase, sale and storage of cement at premises or places, to be written up at the end of each day. The register shall show - (a) the opening stock of the day, (b) the quantity received during the day, (c) the quantity delivered or otherwise disposed of during the day, (d) the closing stock of the day, and (e) such other particulars as the licensing authority may, by order in writing, specify. " (3.) AMALENDU Maiti, Sub-Inspector of Food and Supplies, Mahisadal block-1, upon receipt of an information that the appellant was committing malpractices in his dealings in cement visited the godown of the appellant who is a dealer of cement at Khejurberia on 28. 3. 85 and found the dealer transacting business. He verified cement stocks by counting bags in the godown of the appellant in presence of the two independent witnesses and found 303 bags of cement weighing 151.50 kgs. each. But on examining the stock register he found that the stock register was maintained as on 19.3.85 with an opening balance of 28 bags of cement. After taking into account 25 bags of cement as per cash memo No. 437 dated 19.3.85 the actual balance stood at three bags of cement as on 19.3.85. No sales were found made from 20.3.85 to 28.3.85 as per cash memo and stock register, while on physical verification the balance of stock came to 303 bags of cement measuring the aforesaid quantum in each bag. The discrepancy could not be satisfactorily explained by the appellant who therefore made false statement in his books of accounts which he was required to maintain as per sub-paras (1) and (2) of the said Order, 1982 and thus violated section 9 (ii) of the EC Act, 1955. The seizure of the stock was made. The discrepancy could not be satisfactorily explained by the appellant who therefore made false statement in his books of accounts which he was required to maintain as per sub-paras (1) and (2) of the said Order, 1982 and thus violated section 9 (ii) of the EC Act, 1955. The seizure of the stock was made. FIR was lodged and upon submission of chargesheet trial followed under section 7 (111) (a) (ii) and section 9 (ii) of the EC act read with para 5 (2) of the Order, 1982 and upon conclusion of trial the learned Judge convicted the appellant under the aforesaid section of the law and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, in default, to suffer RI for one month for each count. (4.) ONE of the grounds of appeal was that cognizance of the offence was bad in law in view of the provision of section 167 (5) of the Cr.PC as chargesheet was submitted on 30.9.86 more than six months after the appellant was arrested on 6.8.85 and though the point was not raised in the trial the appellant was entitled to raise the point in the appeal in view of decision in Joyshankar Jha vs. State, 86 CWN 242. That was a case under section 279/338 IPC and under section 89 (a) (b) and section 118a of the Motor vehicles Act. Eight witnesses were examined in the trial and thereafter the accused filed an application under section 167 (5) of the Cr. PC alleging contravention of section 167 (5) of the Cr. PC. Their Lordships of this Court held that the alleged illegality could be taken into account even during trial. Another decision in Utpalendu Mahato vs. State and Anr. , 94 CWN 981, which followed Joyshankar Jha (supra) has been cited. According to Mr. Himanshu Dey, learned Advocate for the appellant, since the offence was triable according to the summary procedure chargesheet has not been submitted within six months from the date of arrest of the accused and this having not been done the taking of cognizance of the offence was bad and illegal and trial is vitiated by illegality. According to Mr. Himanshu Dey, learned Advocate for the appellant, since the offence was triable according to the summary procedure chargesheet has not been submitted within six months from the date of arrest of the accused and this having not been done the taking of cognizance of the offence was bad and illegal and trial is vitiated by illegality. (5.) SECTION 12a of the EC Act 1956, reads as follows :" (1) If the Central Government is of opinion that a situation has arisen where, in the interests of production, supply or distribution of any essential commodity not being an essential commodity referred to in clause (a) of sub-section (2) of trade or commerce therein and other relevant considerations, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the Official Gazette, specify such order to be a special order for purposes of summary trial under this section, and every such notification shall be laid as soon as may be after it is issued, before both Houses of parliament: provided that- (a) every such notification issued after the commencement of the essential Commodities (Amendment) Act, 1971, shall, unless sooner rescinded, cease to operate at the expiration of two years after the publication of such notification in the Official Gazette; (b) every such notification in force immediately before such commencement shall, unless sooner rescinded, cease to operate at the expiration of two years after such commencement: provided further that nothing in the foregoing proviso shall affect any case relating to the contravention of a special order specified in any such notification if proceedings by way of summary trial have commenced before that notification is rescinded or ceases to operate and the provision of this section shall continue to apply to that case as if that notification had not been rescinded or had not ceased to operate. (2) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), all offences relating to-(a) the contravention of an order made under section 3 with respect to-(i) cotton or woolen textiles; or (ii) foodstuffs, including edible oilseeds and oils; or (iii) drugs; and (b) where any notification issued under sub-section (1) in relation to a special order is in force, the contravention of such special order, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall as far as may be, apple to such trial: provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year: provided further that when at the commencement of, or in the course of, a summary trial under this section, if appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceeded to hear or re-hear the case in the manner provided by the said Code. " (6.) IT clearly appears that power to try an offence summarily is not in correlation with taking cognizance of the offence. The second proviso to sub-section (2) of section 12a gives discretion to the Magistrate not to try the case summarily if the Magistrate is of the opinion that the nature of the case was such that a sentence of imprisonment for a term may have to be passed or for any of the reason it was undesirable to try the case summarily. The offence under section 7 (1) (a) (ii) of the EC Act is punishable with imprisonment for a term which shall not be less than three months and which may extend to seven years and shall also be liable to fine. The offence under section 7 (1) (a) (ii) of the EC Act is punishable with imprisonment for a term which shall not be less than three months and which may extend to seven years and shall also be liable to fine. Again offence under section 9 (ii) is punishable with imprisonment which may extend to five years or with fine or with both. Therefore, there cannot be invoking of the provision of section 167 (5) Cr. PC. Summons-case means a case relating to an offence which is not an warrant case, and an warrant case means a case punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. The offence under section 7 (1) (a) (ii) and under section 9 (ii) of the EC Act is not a summons-case within the meaning of clauses (w) and (x) of section 2 of the cr. PC. Under section 12a of the EC Act, 1956 Central Government may issue a notification in the Official Gazette specifying orders to be special orders for the purposes of summary trial but that offence does not come as a summons case which is related to sub-section (5) of section 167 of the Cr. PC. Moreover, following the decision of Nirmal Kanti Roy vs. State of West Bengal there has been a sea-change in exposition of the provision of section 167 (5) of the Cr. PC and it has been laid down by Their Lordships of the Supreme Court that the provision is not an absolute one and if the Magistrate find that a substantial part of investigation has been completed and if in the interest of Justice the magistrate find that continuation of the proceeding was necessary then stoppage of further investigation would not become automatic. Therefore, the point fails. (7.) THE second point taken was that there was no expert opinion as to whether the seizure was made of cement or any other substance. This point is bereft of substance as at no point of time during trial was it alleged by the defence that there was no seizure of cement of 303 bags from the godown of the appellant in his presence. The appellant admittedly was a cement dealer. This point is bereft of substance as at no point of time during trial was it alleged by the defence that there was no seizure of cement of 303 bags from the godown of the appellant in his presence. The appellant admittedly was a cement dealer. He failed to account for his stock and there was a gulf of discrepancy between the stock physically found as on 28.3.85 and the stock as was maintained on 19.3.85, no transaction having been effected between 19.3.85 and 26.3.85. It is not a narcotic drug or a liquor required to be chemically tested. It is not an article of food under the Prevention of Food Adulteration Act, 1954. The argument is bereft of substance. (8.) IT was argued, thirdly, that there cannot be taking cognizance of the offence twice. It is submitted that learned SDJM on receipt of the chargesheet took cognizance of offence, and again the learned Judge, Special Court under the EC Act took cognizance of the offence and this is an incurable illegality. On examination of the record of the learned Trial Court I do not find that the point taken was a correct one. The accused was produced under arrest before the learned SDJM on 6.8.85. The learned SDJM did not grant bail and directed that the record be put up before the learned Judge, Special Court under the ec Act "at once". On the next day the learned Judge, Special Court rejected the bail petition and bail was granted by the learned Judge, Special Court under the EC Act on 13. 8. 05. Chargesheet was submitted before the learned judge, Special Court on 30.9.06 and it was the learned Judge, Special Court under the EC Act who himself took cognizance of the offence on 30.9.06. (9.) THE learned Judge did not try the case summarily. There has been exhaustive recording of evidence which were all categorically analyzed. The learned Judge also considered the defence evidence and at the conclusion of trial there was exhaustive examination of the accused under section 313 Cr. PC. In fact, the learned Advocate for the appellant did not go into the factual aspects of the prosecution case and confined his submission to the aforesaid technicalities which I do not find sustainable at all. PC. In fact, the learned Advocate for the appellant did not go into the factual aspects of the prosecution case and confined his submission to the aforesaid technicalities which I do not find sustainable at all. The judgment impugned is a compact one with exhaustive analysis of evidence of the witnesses and I do not find any illegality in the analysis of evidence of the witnesses. 303 bags of cement were found in the godown of the appellant on 20.3.85 and the said stock of cement was not entered in the stock register which was Ext. 6. Therefore there was made a false statement in the books of accounts which is a stock register. The appellant contravened the provision of para 5 (2) of the order, 1982 for not maintaining true and proper account of the sale and the stock of cement in the stock register as also sale of 25 bags of cement on 19. 3. 85 in the sale register (Ext. 7). Evidence of DW 2 was found contradictory to and inconsistent with alleged delivery of 300 bags of cement to one Padma rani Panda on 26.3.85. The learned Judge correctly found that if according to dw 2 cement was delivered to Padma Rani Panda after the receipt of draft then it appeared from the money receipt (Ext. D) that the draft was received on 27.3.85. There obviously could not be any delivery of 300 bags of cement on 26. 3. 85. Ext. E is inconsistent with the defence plea that 300 bags of cement were delivered to Padma Rani Panda on 26.3.85. (10) AT the last leg of the argument Mr. Dey submitted that the accused should have been dealt with the provision of section 4 of Probation of offenders Act, 1958 and this is more so when the appeal is being disposed of after a long lapse of time. Appeal was ready for hearing long long ago. At no point of time the appellant desired to have his appeal heard early. In consideration of the appeal being an old one the Criminal Department sent the appeal for hearing. The delay in disposal of the appeal has no direct nexus with the gravity of the offence, and the gravity of the offence does not demand that the appellant should have been by the learned Trial Court dealt with either under section 360 of the Cr. The delay in disposal of the appeal has no direct nexus with the gravity of the offence, and the gravity of the offence does not demand that the appellant should have been by the learned Trial Court dealt with either under section 360 of the Cr. PC or under section 4 of the probation of Offenders Act, 1958. The learned Trial Court by sentencing the appellant to suffer RI for three months and to pay a fine of Rs. 2,000/- in default to suffer RI for one month on account of each count of the charges did not commit any illegality. (11.) THE appeal is devoid of any substance and I dismiss it. (12.) THE judgment and order of the learned Judge, Special Court under the EC Act, Tamluk dated 22.12.87 is confirmed. (13.) THE appellant who is on bail is directed to surrender before the learned judge, Special Court, (EC Act) Tamluk to serve out the sentence failing which the learned Judge will take appropriate steps for apprehension of the appellant so as to have the sentence executed in accordance with the law. The bail bond of the appellant is cancelled. (14.) A copy of the judgement and order along with LCR shall be sent to the learned Judge, Special Court (EC Act) Tamluk for information and necessary action with reference to his Case No. EGR 8 of 1985 corresponding to TR Case No. 14 of 1986. (15.) URGENT xerox certified copies, if applied for, be given to the parties as expeditiously as possible. Appeal dismissed.