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2014 DIGILAW 1009 (CAL)

Haradhan Jana v. State of West Bengal

2014-11-05

JOYMALYA BAGCHI

body2014
Judgment Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 08.12.1986 passed by the learned Judge, Special Court, E.C. Act of Howrah, in SCT 67/85 convicting the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of paragraph 12(1) of the West Bengal Kerosene Control Order, 1968 (hereinafter referred to as “the Order of 1968”) and sentencing him to suffer simple imprisonment for four months and to pay a fine of Rs.200/-, in default, to suffer simple imprisonment for ten days more. Prosecution case, as alleged, against the appellant is to the effect that PW 1 along with others inspected the kerosene Oil-Cum-grocery shop of the appellant and found that the latter was dealing in essential commodity, namely, Kerosene oil. PW 1 wanted to see books of accounts and other documents relating to such business of kerosene oil and served a notice upon the appellant. Pursuant thereto, the appellant produce sale register, stock register, log book, purchase cash memos. On perusal of sale register it was found that the same was no written upto date. On physical verification there was 440 liters kerosene oil and a shortage of 110 liters of kerosene oil was detected on comparison of physical verification with the entries in the stock register. PW 1 arrested the appellant and granted him bail on PR bond as he was ill. PW 1 seized licence, purchase cash memo, stock register, sale register, physical stock of kerosene oil from the shop of the appellant. He prepared a seizure list and kept the seizure articles in the Zimba of the appellant. PW 1 lodged complaint resulting in registration of Howrah P.S. Case No. 18 dated 14.6.1985 under section 7(1)(a)(ii) of the Essential Commodities Act against the appellant. In conclusion of investigation, charge sheet was filed under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 12(1) of the West Bengal Kerosene Control Order, 1968. Substance of accusation was read out and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 3 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. Substance of accusation was read out and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 3 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that he was suffering from jaundice for last two months and the shop was run by one Bapi. In support of his defence he examined a local Counciler, DW1 and himself, DW 2. Learned trial Court by judgment and order dated convicted the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act and sentenced him to suffer simple imprisonment for four months and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for ten days more. Mr. Bagchi, learned amicus curiae submitted that although it appears there was a shortfall of 110 liters of kerosene oil, prosecution witnesses deposed that there was a shortfall of 90 liters. He further submitted that the appellant was suffering from jaundice and as a result he could not run the shop himself and had assigned such duty to one Bapi. Hence, he had no mens rea in committing the offence. He prayed for acquittal of the appellant. Mr. Banerjee, learned Additional Public Prosecutor submitted that a shortfall to the tune of 110 liters of kerosene oil was detected upon comparing physical quantity of kerosene oil in the shop with the entries made in the stock register. He submitted that the version of remaining of kerosene oil business by one Bapi is highly unreliable and has not been established by way of evidence. He prayed for dismissal of the appeal. PW 1, Adhir K. Banerjee, is the de facto complainant and the leader of the raiding party. He was attached to Inspector of Police, D.E.B., Howrah. At about 12.30 p.m., he along with others went to kerosene oil–cum-grocery shop of the appellant. He served notice upon the appellant (Exhibit 1) to produce all books of account relating to the business of kerosene oil. The appellant produced sale register, stock register, log book, cash memos. On perusal of the stock register and sale register it was found that the sale register was not written upto date but the stock register was written upto date. The appellant produced sale register, stock register, log book, cash memos. On perusal of the stock register and sale register it was found that the sale register was not written upto date but the stock register was written upto date. On physical verification 440 liters of kerosene oil was found. There was a shortage of 90 liters. The appellant was arrested and the stock register, licence, purchase cash memo, physical stock of 440 liters kerosene oil in the shop were seized. The appellant was granted bail as he was ill. Seizure list was prepared (Exhibit 4). PW 1 and the appellant signed the seizure list. He lodged complaint which was treated as first information report (Exhibit 5) In cross-examination, he clarified that at the time of inspection he had erroneously written in the complaint that there was shortage of 90 liters, in fact, there was a shortage of 110 liters. PW 2, Swapan K. Roy Chowdhury, is a seizure list witness. He signed on the seizure list. In cross-examination, he stated that the appellant was suffering from jaundice for the last two/three months. On the insistence of local authority the appellant managed to sell kerosene with the help of one Bapi, a local boy who used to write cash memo. PW 3, Monoj K. Moitra, is another Inspector of Police who was a member of the raiding party. He has corroborated the evidence of PW 1. DW1, Shambhu Naskar, was the then Councilor of Ward No. 18 of Howrah Municipal Corporation. He stated that appellant was suffering from jaundice for two months and one person named, Bapi was asked to sell kerosene oil from the shop of the appellant. In cross-examination, he stated that he could not give the full name or address of Bapi. Appellant, Haradhan Jana, examined himself as DW 2. He stated that he was suffering from jaundice for last two months prior to the inspection. At the request of local Councillor, one Bapi sold kerosene from his shop. Bapi entered the stock on 14.06.1986 and issued cash memo. He received the cash memo book written by Bapi (Exhibit A). He stated before the police that cash memo was written by Bapi as he was ill he could not write the sale register. In cross-examination, he admitted that the sale register was written up to 25.04.1985 whereas the stock register was written up to 14.06.1984. He received the cash memo book written by Bapi (Exhibit A). He stated before the police that cash memo was written by Bapi as he was ill he could not write the sale register. In cross-examination, he admitted that the sale register was written up to 25.04.1985 whereas the stock register was written up to 14.06.1984. From the aforesaid evidence, it is clear that there was a discrepancy in the physical stock of kerosene oil in the shop and the entries made in the stock register on the date of inspection, that is, 14.06.1985. PW 1 by mistake had written the shortfall as 90 liters. In fact, it was of 110 liter. Exhibit 7 is the stock register which was written up to 14.06.1984. On 13.06.1985 there was a balance of 350 liters of kerosene oil. On 14.06.1985, the appellant had received 200 liters of oil. Hence, as per stock register there ought to have been 550 liters of kerosene oil at the time of inspection. Physical inspection of the stock showed that there was 440 liters of kerosene oil, that is, a shortfall of 110 liters. From the nature of defence the appellant appears to have admitted such fact. His specific defence is that he was ill for two months prior to the inspection due to jaundice. The shop was run by one Bapi at the behest of the local Councillor, DW 1. Bapi sold the kerosene oil and issued cash memo. He did not make necessary entries in the sale register. Accordingly, the appellant cannot be held guilty for the discrepancy in the stock of kerosene oil in the shop. I am unable to accept such defence. Firstly, no medical documents relating to the ailment of the appellant has been produced before the Court. It is true that the appellant claimed to be sick and was enlarged on bail by the police authorities on the date of inspection. Such claim, however, cannot sustain the defence plea that he was suffering from jaundice for two months prior to the incident and was unable to run the shop. Even if such plea, for the argument’s sake, is accepted the appellant being the licensee cannot escape his liability to run the business according to the conditions of licence. The plea that the shop was run by one Bapi clearly has no substance. Identity of Bapi has not been established. Even if such plea, for the argument’s sake, is accepted the appellant being the licensee cannot escape his liability to run the business according to the conditions of licence. The plea that the shop was run by one Bapi clearly has no substance. Identity of Bapi has not been established. DW 1 in cross-examination cannot even state the full name or the address of the said person. Such person has not also been tendered as witness. Hence, I am unable to accept the defence plea that due to ailment the appellant was unable to run the shop and the same was run by another person who did not make the necessary entries in the sale register and consequentially there was a shortfall in the stock of kerosene oil. In view of the aforesaid discussion, I am of the opinion that the appeal is wholly unmerited and the same is liable to be dismissed. Conviction of the appellant is upheld. Coming to the issue of sentence, I find that the incident occurred two decades ago and the appellant does not have any criminal antecedent. Accordingly, the sentence imposed upon the appellant is reduced to the statutorily permissible minimum limit. The appellant is sentenced to suffer simple imprisonment for three months and pay a fine of Rs.200/-, in default, to suffer simple imprisonment for ten days more. The appeal is allowed to the aforesaid extent. Bail bond of the appellant is cancelled and he is directed to surrender before the trial Court within a month from date to serve out the sentence, as aforesaid, failing which the trial Court shall take necessary steps for execution of the sentence in accordance with law. Period of detention suffered by the appellant in the course of investigation/enquiry/trial shall be set off against the period of imprisonment, as aforesaid, in terms of Section 428 Cr.P.C. Lower court records along with copy of judgment be sent down to the trial Court at once. I record my appreciation for the assistance rendered by Mr. Bagchi as amicus curiae for disposal of the appeal.