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2008 DIGILAW 697 (CAL)

Karzan Show v. State of W B

2008-07-16

SANKAR PRASAD MITRA

body2008
Judgment :- (1.) THIS appeal has been preferred by the appellants against the order of conviction and sentence passed by the learned Judge, Special Court, under e. C. Act at Alipore, 24 Pargana (S) on 28. 4. 87 in Special Case No. 6 (11) of 1985 R. R. No. 51/86 arising out of Behala P. S, Case No. 25 (II)/85 whereby the appellants were convicted for violation of Para 3 (1) of West Bengal Pulses, edible Oilseeds and Edible Oils (Dealers Licensing) Order 1978 and accordingly sentenced under Section 7 (1) (a) (ii) of Act X of 1955 to undergo rigorous imprisonment for six months and to pay a fine of Rs. 300/-each in default to suffer R. I. for one month more. (2.) THE prosecution against the appellants was Stated on the basis of a complainant lodged by S.I, DEO, Behala, who after completion of investigation submitted charge-sheet against the appellants. (3.) THE prosecution case in short, is that on 7. 11. 85, at about ,12. 15 hours the complainant visited the grocery shop of the accused Lakshmi Show situated at 97, Biren Roy Road (West) for the purpose of raid when the owner lakshmi Show was not present there but his employee Karjan Show was found present in the said shop. During the course of raid it was found by the complainant that there were 53 tins of mustered oil weighing 7 quintals 95 kgs. and Banaspati (edible) in 5 tins weighing 75 kgs. However, on demand Karjan show failed to produce any licence for dealing in edible oil and also failed to produce any books of account relating to the business, and there was no stock-cum- price board in the said shop. As such there being violation of the provisions of para 3 (1) and 12 of West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealers Licensing) Order, 1978 and para 3 (2) of West Bengal Declaration of stocks and Prices of Essential Commodities Order, 1977, the complainant seized the stock of mustered oil and Banaspati under a seizure list in presence of witnesses and arrested the accused Karjan Show and took him to Behala p. S. and filed a complaint there which registered a case. (4.) THE appellants during the examination under Section 251 of Cr. P. C. pleaded not guilty and claimed to. be tried. (4.) THE appellants during the examination under Section 251 of Cr. P. C. pleaded not guilty and claimed to. be tried. The defence plea is that the accused never stored any oil or Banaspati beyond the limit as provided under the control order and as such he never obtained any licence for dealing in edible oil and that the stock and a price board was thee and that books of account were duly produced but those were not considered by the police who ultimately lodged a false case. In the Court below the prosecution could examine as many as eight witnesses where as the defence also examined two witnesses. The learned Court considering the oral and documentary evidence on record including the defence taken by the defence witnesses came to a conclusion that there was no violation of para 3 (2) of W. B. Declaration of Stock and Prices of Essential Commodities Order, 1977 and para 12 of the W. B. Pulses, Edible oilseeds and Edible Oils (Dealers Licensing) Order, 1978 and on those grounds the appellants were not found guilty. However, the learned Court found the appellants guilty for violating the provisions of para 3 (1) of the W. B. Pulses, edible Oilseeds and Edible Oils (Dealers Licensing) Order, 1978 and accordingly convicted them and sentenced them under Section 7 (1) (a) (ii) of act X of 1955 as indicated in the judgment. (5.) IT is submitted by the learned Advocate for the appellants, Mrs. Soma Ponda that before imposing the sentence of imprisonment and fine the appellants were not given an opportunity of hearing on the question of sentence and thereby the principles of natural justice was denied to them. Mrs. Ponda further submits that the appellant No. 1 Karjan Show, was in custody during the investigation for about 16 days and appellant No. 2, Lakshmi Show was in custody for two days, that apart, they had suffered agony of trial since 1985, and, therefore, this Court should reduce the sentence in the interest of justice. (6.) MR. Abhijit Addy, learned Advocate appearing for the State does not controvert the argument advanced by the learned Advocate for the appellants. (7.) I have seen the judgment, evidence on record, both oral and documentary including the defence taken by the defence witnesses. (6.) MR. Abhijit Addy, learned Advocate appearing for the State does not controvert the argument advanced by the learned Advocate for the appellants. (7.) I have seen the judgment, evidence on record, both oral and documentary including the defence taken by the defence witnesses. It appears to me that the conviction of the appellants by the trial Court is justified but, I find from the record that the appellants were not given opportunity of hearing on the question of sentence and therefore there was violation of principles of natural justice. Even in case of a summary trial or in case where summon procedure is adopted it is desirable that before imposing sentence of imprisonment the accused should be heard on the question of sentence following the principles of natural justice. In the case reported in (2004)2 SCC 447 : 2004 C Cr LR (SC) 188 Mangilal v. State of Madhya Pradesh the Apex court otherwise hinted that even if a statute is silent and there are no positive words in the Act or the Ruies made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigants defence or stand. Therefore, relying upon the decision and the fact that the appellants were not given any opportunity of hearing on the question of sentence, who had suffered the agony of trial since 1985, I am of the view, that the quantum of sentence should be reduced. Therefore, I find merit in the appeal and it is partly allowed. The conviction of the appellants is hereby affirmed but the sentence imposed upon them is modified and the each appellant will undergo S. I. for two days and the period of detention undergone during the investigation/trial shall be set off against the terms of imprisonment imposed upon them under Section 428 of Cr. The conviction of the appellants is hereby affirmed but the sentence imposed upon them is modified and the each appellant will undergo S. I. for two days and the period of detention undergone during the investigation/trial shall be set off against the terms of imprisonment imposed upon them under Section 428 of Cr. P. C. However, the appellants shall pay the fine amount already imposed by the learned Court below which does not call for defence by this Court. The appellants are directed to surrender before the Court below to serve the sentence within three weeks hence in default the learned Court below shall issue Warrant of Arrest against them. (8.) LET a copy of this order along with L. C. R, shall be sent to the teamed judge, Special Court, Alipore, 24 Parganas, (S) for his information and taking necessary action.