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Calcutta High Court · body

2008 DIGILAW 343 (CAL)

Adwaita Kumar Kotal v. State

2008-03-28

P.S.Datta

body2008
JUDGMENT 1. HEARD Mr. Abhijit Auddy, learned Advocate appearing for the appellant and Mr. Debabrata Roy, learned Advocate appearing for the State. 2. LEARNED Judge Special Court, E. C. Act, Bankura by judgment and order dated 27. 5. 85 passed in C. S. C. R. No. 13 of 1984 (29t of 1984)convicted the appellant under Section 7 (1) (a) (ii) of the E. G. Act, 1955 for violation of the provision of para 3 (b) of the West Bengal Sugar (Dealers licensing) Order, 1980 and also for violation of condition No. 4 of the Licence issued under para 4 (2) of the West Bengal Sugar Dealers' Licensing Order, 1980 and also for violation of para 3 (2) of the West Bengal Declaration of stocks and Prices of Essential Commodities Order, 1977 and para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and for violation of para 12 of the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial transactions) Order, 1973 and sentenced him to suffer R. I. forthree months and to pay a fine of Rs. 1,000/- in default to suffer R. I. for 21 days. The appellant is an M. R. Shop Dealer and P. W. 10 the F. I. R. maker who is an Inspector of Enforcement Branch visited the shop of the appellant but appellant was not found there. One Sudhir said to be his son was asked to produce documents and papers and he produced one stock register and cash memo but failed to produce any licence, return and other papers. In register it was found as opening balance on 7. 4. 84 rice - 167. 800 kgs. suger - 109. 090 kgs., wheat - 29 kgs. Till inspection was complete no commodity was received in that shop on 7. 4. 84. on verification of cash memo it was found that no cash memo was issued for any sale of sugar to the extent of 109. 00 kgs. or 167. 700 kgs. of rice or 29 kgs. of wheat. In presence of witnesses physical verification was made and it was found 214. 500 kgs. of fine rice were kept in 4 bags, 43. 500 kgs. of sugar in one bag, 15. 500 kgs. of rotten wheat in one bag. 00 kgs. or 167. 700 kgs. of rice or 29 kgs. of wheat. In presence of witnesses physical verification was made and it was found 214. 500 kgs. of fine rice were kept in 4 bags, 43. 500 kgs. of sugar in one bag, 15. 500 kgs. of rotten wheat in one bag. So, after inspection it was found that rice was found in excess to the extent of 46. 700 kgs. and sugar and wheat was found in short to the extent of 65. 590 kgs. and 13. 500 kgs. respectively. Thus the accused persons have violated para 3 (2) of West bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 by not maintaining Stock-cum-Rate Board and not maintaining Stock of Essential Commodities. They also violated paras 4 and 12 of West Bengal wheat and Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transaction) Order, 1973 by not maintaining true and correct account of sale and storage of wheat and also not issuing cash memos to the customers for sale of wheat. The accused also violated para 18 (1) of west Bengal Rice and Paddy (Licensing and Control) Order, 1967 by not maintaining true and correct account of sell and storage of rice in the shop. They violated condition No. 4 of licence issued to them by not issuing cash memos to the customers. They also violated para 4 (2) of West Bengal declarations Licensing Order, 1980 for not issuing cash memo for sale of sugar. So, the accused persons have been prosecuted under Section 7 (1) (a) (ii) of the E. C. Act. 3. THE prosecution examined 10 witnesses P. W. 1 Gadadhar Mondal is the witness to the seizure of some goods. He says that on reaching the shop of the appellant, he found 3 police officers and one officer of the I. B. Department and also found the bags in front of the door. It is the evidence of P. W. 2 Basudeb Shit that while the enforcement officer visited the shop of appellant, his son replied that his father was not at home and after a notice was given to the son of the appellant, the son of the appellant produced some stock register and cash memo which were seized by the police (Ext. 5 and Ext. 4). 5 and Ext. 4). In cross-examination the witness says that when he reached the shop, the accused has closed the shop and as such, he did not see him selling commodities to anybody. That the appellant was not present in the shop at all is manifest from evidence of all the witnesses and it was his son Sudhir who was found and who produced some cash memos and stock register. In cross-examination of P. W. 2 it has appeared that p. W. 2 opened the shop. P. W. 3 Lambodar Hembram, the S. I. of Food and supplies Department said in his evidence that on reaching the shop, it was found closed and it was learnt by interrogating the inmates of the house of the appellant that the appellant had gone to Bankura and the shop was opened by his son Sudhir Kotal. P. W. 4 Gouranga Pada Guli is a man of the village of the appellant and his witness to the seizure of the goods and stock register. It is his cross-examination that the M. R. shop of the appellant remains closed on Sunday and remains half day closed on Saturday after 12 or 1 p. m. Evidence of P. W. 5, Lakshmikanta Barik is not worth mentioning. P. W. 6 Jaladhar Ghosh claims to be the witness of weighment of sugar and wheat P. W. 7 and did not say anything as he was declared hostile. P. W. 8, s. I. Chittafanjan Banerjee drew the formal F. I. R. P. W. 9 Ranajit Kumar roy is the F. I. R. maker who says that Sudhir produced before him some register and also showed the M. R. commodities available in the shop. He narrated in his evidence the alleged discrepancy between the stock register and physical stock. P. W. 10, S. I. P. Sarbobhouma submitted chargesheet. 4. LEARNED trial Court upon evidence of the witnesses convicted the appellant and sentenced accordingly. Mr. Abhijit Auddy, learned Advocate for the appellant submits that there could not be any contravention of the provision of para 3 (2) of the west Bengal Declaration of Stocks and Prices of Essential Commodities order, 1977 because as the business was closed on Saturday afternoon. LEARNED trial Court upon evidence of the witnesses convicted the appellant and sentenced accordingly. Mr. Abhijit Auddy, learned Advocate for the appellant submits that there could not be any contravention of the provision of para 3 (2) of the west Bengal Declaration of Stocks and Prices of Essential Commodities order, 1977 because as the business was closed on Saturday afternoon. The appellant was not required to display the board of stock and prices It has came up from evidence of P. W. 4 who is the man of the village that the m. R. shop of the appellant remains closed Sunday and also on Saturday after 12 noon. Seizure was effected in the evening. Therefore rightly it has been submitted that the appellant was not required to display the board of prices and stock at the time of inspection. The decision in Nathmal v. State of Rajasthan, AIR 1975 SC 2198 has been cited where Their Lordships of the Supreme Court held that when the shop was not open that day under consideration the petitioner could not be expected to display the prices or stock list on that day. Two other decisions - one of Orissa High Court namely, narendra Kishore v. State of Orissa, 1982 Cr LJ 934 and another of rajasthan High Court in Dev Chand v. State of Rajasthan, AIR 1979 Rajasthan 347 have been cited. 5. THE second point urged Mr. Abhijit Auddy is that no licence was required to deal in sugar in leas than 10 quintals under the West Bengal sugar Dealer Licensing Order, 1980 and the appellant is competent to deal in quantity of sugar less than 10 quintals as M. R. shop dealer. In the shop of the accused there was shortfall of 65 kgs. of sugar and it is not in evidence that the accused dealt in sugar exceeding 10 quintals. 6. IT is submitted that the hour of inspection was in the evening when unquestionably the shop was closed and no business was transacted. The appellant was not in the shop nor in his house. His son was called to the shop and asked to produce documents and the son produced whatever he could be able to do and if the appellant had been given an opportunity to explain the alleged discrepancy. The appellant was not in the shop nor in his house. His son was called to the shop and asked to produce documents and the son produced whatever he could be able to do and if the appellant had been given an opportunity to explain the alleged discrepancy. He could have explained by producing all documents and non-availability of licence or other document does not mean that they were not present or were not available with the appellant who was admitted not present in the village as he had gone to Bankura. The West bengal Sugar Dealer Licensing Order, 1980 is neither applicable to the appellant nor to the M. R. shop in question. The son of the appellant cannot be said to be the competent person to produce the documents and registers. The son of the appellant admittedly was not found selling any commodity to anybody or was transacting any business from the shop room. The son of the appellant was not an employee of the M. R. shop of the appellant and he was made to open of the shop under the instruction of the F. I. R. maker. The law is very clear that the shop must be available for inspection during business hours whenever it was required for inspection and non-production of registers and documents to the Inspector during the business hours on a working day is in the absence of proper explanation punishable under section 7 of the Act for breach of licensing order. Here in the instant case, no business was being transacted in the shop and it was found closed. Therefore, in the circumstances when the appellant was not present in the shop or in his house could not be expected to produce all documents including licence instantly and because of such non-production he could not be punishable under Section 7 of the Act. In the circumstances, I find that the prosecution could not be proved. Accordingly, I allow the appeal and set aside the judgment and order of conviction and sentence passed against the appellant and find him not guilty of the offence and acquit him of the charge and set him at liberty. He is discharged from bail bond. 7. CRIMINAL section is directed to supply certified copy of this order, if applied for, to the learned Advocate for the parties expeditiously.