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2008 DIGILAW 679 (CAL)

Mathur Chandra Mishra v. State of W B

2008-07-11

SANKAR PRASAD MITRA

body2008
Judgment :- (1.) THIS appeal has been preferred by the appellant, Mathur Chandra Misra, challenging the order of conviction and sentence dated 13th December, 1985 passed by the learned Judge, Special Court (under E. C. Act), Bankura in c. S. G. R. No. 39 of 1985/27t of 1985 whereby the appellant was convicted for violation of the provision of Para 18 (1) of the West Bengal Rice and Paddy (licensing and Control) order 1967 and he was accordingly sentenced under section 7 (1) (a) (ii) of the E. C. Act to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1,000/- in default, to suffer R. I. for fifteen days. However, the appellant was acquitted from the charge under Para 3 (2) of West bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977. (2.) THE appellant stood charged under Section 7 (1) (a) (ii) of Act X of 1955 for violation of Para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and also under Para 3 (2) of West Bengal Declaration of Stocks and-Prices of Essential Commodities Order, 1977. (3.) MR. Tapas Middha, learned Advocate appearing for the appellant is present. On the other hand, Mr. R. Ghosal, learned Advocate is present for the State. In presence of learned Advocates of both sides the appeal is taken up for hearing. (4.) HEARD the learned Advocates for the parties. (5.) THE prosecution case, in short, is that the D. E. B. officers on receipt of a secret information visited and inspected the retail rice shop of the accused, situated at Makurgram on 11. 08. 1985 and at that time the accused was present in the shop and was engaged in his business. The police officers of O. E. B. after service of notice upon the appellant asked him to produce necessary documents for dealing in rice. But the appellant could not produce any document from the shop. However, from the shop of the appellant 9 bags containing 8 quintal 5 kgs. of rice were recovered and in continuation of search the police also recovered from the shop one stock register, one sale register, one purchase register and one cash memo book. On checking those documents, seized from the shop of the appellant the officers found the entries thereon were neither upto date nor tallied with the actual stock. of rice were recovered and in continuation of search the police also recovered from the shop one stock register, one sale register, one purchase register and one cash memo book. On checking those documents, seized from the shop of the appellant the officers found the entries thereon were neither upto date nor tallied with the actual stock. Besides above the appellant did not display stock-cum-price board in his shop. Since there was violation of para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and para 3 (2) of the West Bengal Declaration of Stocks and Prices of essential Commodities Order, 1977 the appellant was arrested and this case was started against him and after completion of investigation the I. O. submitted charge-sheet against the accused for prosecuting him under Section 7 (1) (a) (ii)of Act X of 1955 for the above violation. (6.) THE accused pleaded not guilty to the charge and took a defence that the date of occurrence was a Sunday and his shop remained closed on sunday. The appellant also took another defence that due to his illness his shop remained closed for several days. (7.) IN the trial Court the prosecution had examined as many as six witnesses and exhibited several documents. However, after taking into account the oral and documentary evidence on record the learned Court below found: that the prosecution could not establish that the accused-appellant was running the business on that day and it was not Sunday. On the contrary, the trial court found that the prosecution witnesses divulged that the day on which the police officers visited the shop of the accused was Sunday and the shop was closed, therefore, the learned Court found that the prosecution could not prove beyond doubt that on that day the accused was running the business and it was not Sunday. So the benefit of doubt was given to the appellant and he was acquitted of the charge under Para 3 (2) of the West Bengal Declaration of stocks and Prices of Essential Commodities Order 1977. However, the learned court below found the appellant guilty under Section 7 (1) (a) (ii) of Act X of 1955 for violation of Para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and the appellant was convicted on this ground and sentenced accordingly. However, the learned court below found the appellant guilty under Section 7 (1) (a) (ii) of Act X of 1955 for violation of Para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and the appellant was convicted on this ground and sentenced accordingly. But the fact remains that on the basis of same set of facts on one count the learned Court below acquitted the accused he was entitled to benefit of doubt but on the same ground the appellant was convicted for violation of Para 18 (1) of the West Bengal Rice and Paddy (Licensing and control) Order, 1967. It transpires from the testimony of P. W. 1-, that the shop was closed on 11. 08. 1985 when the police officers conducted raid, Darogababu compelled the appellant to open his shop and thereafter he made search and seizure. The oral testimony of P. W. 2 discloses that on that particular day the shop of the accused was closed because it was Sunday. P. W. 3 another witness of Mukurgram village stated in his evidence that the incident took place on sunday when the shop of the appellant remained closed and the police compelled the appellant to open his shop and then conducted raid. P. W. 4 spoken about the raid and seizure of the article from the shop of the appellant who admitted in his evidence that he cannot remember whether on that day the appellant was engaged in business in his shop with anybody present there or not. But it transpires from his evidence that the accuseds shop remained closed on Sunday and for the last 5/6 months he was unwell and his shop was remained closed, this fact of closure of business by the appellant finds corroboration from P. W. 1, P. W. 2 and P. W. 3 and the question remains whether a duty officer under the Act can conduct a raid on the shop of the appellant on a holiday ? It transpires from the testimonies of the prosecution witnesses that on the day the raid conducted by the police officer, the shop was closed because it was Sunday and there is no dispute with regard to this fact. It transpires from the testimonies of the prosecution witnesses that on the day the raid conducted by the police officer, the shop was closed because it was Sunday and there is no dispute with regard to this fact. Perhaps this fact was practically accepted by the learned trial Court and he accordingly acquitted the appellant from the charge under Para 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977. It is a settled principle of law that a raid can be conducted in any shop under the Act for violation of any order, provided the raid is conducted on working days and during the business hours. Para 18 (1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 does not prescribe any action to be taken against a licensee or registered dealer during holidays for violation of the order. But it is cardinal principle of jurisprudence that under the Act the raid should be conducted during normal business hours of the working day and riot on any holiday. Our Apex Court in a decision reported in AIR 1975 SC 2198 (Nathmal v. Sfafe of Rajasthan) observed that a raid conducted in a shop which the accused claims to be closed on the day would make the raid and an action taken pursuant to such raid cannot be said fair, proper and legal. Therefore, the Apex Court discarded the raid conducted in any shop or establishment when the shop remained dosed. Similar view had been taken in cases reported in 1992 Criminal Law Reporter (Gal) 177, (Pradip Kumar Agarwalla with Satya narayan Agarwalla v. State) the Court held that the prosecution of the accused under Para 3, Declaration of Stocks and Prices of the Essential Commodities order, 1977 could riot be maintained as the raid was conducted by the prosecution in the business place of the accused on Sunday which was weekly holiday. Such a raid on holiday being Sunday was disapproved by the Court because it cannot have any legal sanction. Another decision reported in 1990 c Cr LR (Gal) 197 (New Roy Trading Co. and Ors. Such a raid on holiday being Sunday was disapproved by the Court because it cannot have any legal sanction. Another decision reported in 1990 c Cr LR (Gal) 197 (New Roy Trading Co. and Ors. v. State of West Bengal)wherein the Court found that the petitioner-accused was prosecuted under section 7 (1) (a) (ii) of the Act X of 1955 for violation of Para 3 (2) of the West bengal declaration of Stocks and Prices of Essential Commodities Order, 1977. In this case the search and seizure was made on 18th August, 1988 which was a closed day. In this context the Court placed, reliance on a decision of the supreme Court in Nathmal v. State of Rajasthan (supra) wherein interpreting the Rajasthan (Display of Price of Essential Commodities) Order, 1966 the apex Court made it imperative for the petitioner to display the price and stock list, but if the shop was not open on the day under consideration, the petitioners could not be expected to display the price or stock list on that date. The Court finding the raid conducted in the shop which was closed day, came to the conclusion that the search and seizure made on 18th August, 1988 was without jurisdiction and therefore the petitioner had no obligation to display stock and prices board in compliance with clause 3 (2) of the West Bengal Declaration of stocks and Prices of Essential Commodities Order, 1977. (8.) IN a case reported in 1998 C Cr LR (Cal) 75 Sri Ratikanta Parue v. The State of West Bengal, the Honble Court held that the prosecution against the petitioner-accused for violations of Paras 3 and 4 of the West Bengal Pulses and Edible Oil Seeds and Edible Oil (Dealers Licensing) Orders, 1978 and para 3 of the West Bengal Declaration of Stocks and Prices of Essential commodities Order, 1977 cannot be said to be legal as the raid was conducted in the shop of the accused petitioner on the day when it was closed, in that case 19th March, 1996 raid was conducted in the oil mill which remained closed on that day and the petitioner was implicated for violations of the aforesaid orders. The learned Court relying upon a decision reported in Ajit singh v. State of West Bengal, (1990)1 Cal HN 1 and also a decision reported in 1990 C Cr LR (Cal) 197, Roy Trading Co. The learned Court relying upon a decision reported in Ajit singh v. State of West Bengal, (1990)1 Cal HN 1 and also a decision reported in 1990 C Cr LR (Cal) 197, Roy Trading Co. v. State of West Bengal came to a conclusion that if a raid is conducted when it is closed or when it is holiday, the seizure made pursuant to such raid, shall totally become illegal. Therefore, the prosecution against the petitioner on the basis of illegal search and seizure will make the entire proceeding illegal. (9.) SINCE the principle has been settled by the Supreme Court it cannot be said that the raid conducted by the D. E. B. officers in the shop of the appellant on Sunday, being holiday/when it was closed shall be deemed legal. On the contrary it can be safely concluded that the raid conducted in the shop of the appellant by the D. E. B. officers on that day was illegal and therefore the prosecution against the appellant for violation of Para 18 (1) of the West Bengal rice and Paddy (Licensing and Control) Order, 1967 is illegal and therefore the conviction of the appellant for violation of Para 18 (1) of the West Bengal rice and Paddy (Licensing and Control) Order, 1967 cannot be sustained as also the sentence imposed upon the appellant. (10.) THEREFORE, I find merit in the appeal and it is accordingly allowed. The order of conviction and sentence imposed upon the appellant by the learned judge, Special Court under E. C. Act in C. S. G. R. No. 39 Of 1985 (27 T of 1985)is hereby set aside. The appellant is found not guilty of the charge and he is acquitted and he may be released from bail bond.