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2014 DIGILAW 1030 (CAL)

Sanyashi Sardar v. State of West Bengal

2014-11-07

JOYMALYA BAGCHI

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Judgment : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 18th June, 1987 passed by the learned Special Judge under the Essential Commodities Act in Special Case no. 75 of 1986 convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as the ‘Act of 55’) for violating the provisions of para 3(1) and (2) of the West Bengal Imported Vegetable Oils (Prohibition of unauthorised Sale) Order, 1984 (hereinafter referred to as the ‘Order of 1984’) and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for one month. Prosecution case, as alleged, against the appellant is that on 27th August, 1986 at about 11-55 a.m., D. B. Das, S.I of police attached D.E.B., North 24 Parganas (P.W.5) while on patrol duty on Rajarhat-Baguiati Road near Rajarhat cement factory along with P.W. 3 (Bholanath Nandy) and one Ranjit Jadav found that the appellant was coming on a cycle from Baguiati side with two bags on the cycle. The appellant was detained by P.W. 5 near the cement factory. The bags were opened and four tins of imported rapeseed oil were found in the bags. The appellant failed to produce any licence for carrying rapeseed oil. Four tins of rapeseed oil were seized under the seizure list P.W. 5 also took sample in a bottle from the seized oil which was duly sealed and labelled and the witnesses put their signatures on the label. The appellant was arrested and on the basis of written complaint of P.W. 5 (Exhibit 3), Rajarhat Police Station case no. 18 dated 27th August, 1986 was registered. In course of investigation, the sample of oil was sent for chemical examination and upon analysis it was found to contain imported rapeseed oil. Accordingly, charge sheet was filed against the appellant under Section 7 (1)(a)(ii) of the Act of 55 for violating the provisions of para 3(1) and (2) of the Order of 1984. Substance of accusation was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as five witnesses and exhibited number of documents. The defence of the appellant was one of innocence and false implication. Substance of accusation was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as five witnesses and exhibited number of documents. The defence of the appellant was one of innocence and false implication. He examined D.W. 1, a tea stall owner in support of his defence. In conclusion of trial, the trial Judge by judgment and order dated 18th June, 1987 convicted the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Act of 55 for violating the provisions of para 3(1) and (2) of the Order of 1984 and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-in default to suffer rigorous imprisonment for one month more. At the time of admission of appeal, the appeal was admitted on the point of sentence alone. Notwithstanding such fact, I propose to examine the legality and correctness of the impugned conviction also. Ms. Chatterjee learned amicus curiae submitted that the prosecution evidence is improbabilised by D.W. 1 who stated that the appellant had been detained while he was having tea at the shop. He further submitted that the evidence of P.W. 5 does not inspire confidence and sentence upon the appellant is unduly harsh. Mr. Banerjee, learned additional Public Prosecutor submitted that the prosecution has proved the case beyond reasonable doubt. No interference is called for. P.W. 5 is the most vital witness in the instant case. He deposed that on 27th August, 1986 at about 11-55 a.m. while he was on patrol duty on Rajarhat-Baguiati Road near Rajarhat cement factory along with P.W. 3 (Bholanath Nandy) and one Ranjit Jadav, he found that the appellant was coming on cycle from Baguiati side with two bags on the cycle. The appellant was detained by P.W. 5 near the cement factory. The bags were opened and four tins allegedly containing imported rapeseed oil were found in the bag. The appellant failed to produce any licence for carrying the rapeseed oil. The cycle and the tins were seized upon preparation of seizure list and the seizure list was duly attested by the witnesses and the accused person. Sample of rapesheed oil was taken in a bottle and was duly sealed and labelled. The appellant was arrested and taken to Rajarhat police station. The cycle and the tins were seized upon preparation of seizure list and the seizure list was duly attested by the witnesses and the accused person. Sample of rapesheed oil was taken in a bottle and was duly sealed and labelled. The appellant was arrested and taken to Rajarhat police station. On the basis of written complaint of P.W. 5 first information report was lodged. P.W. 5 investigated the case. He sent the sample for analysis and received the report of the expert. He identified the sample in court. He submitted the charge sheet. The evidence of P.W. 5 is corroborated by another member of the raiding party, namely, P.W. 3. The independent witnesses to the seizure are P.W. 1 and P.W.2. They have deposed that four tins of rapesheed oil in two bags were seized from the possession of the appellant who was carrying them on a by cycle. The have signed on the seizure list. They proved their signatures on the seizure list. P.W. 4 is the expert who proved the analysis report (Exhibit 2) which stated that the sample was found to contain imported rapesheed oil. In rebuttal to the aforesaid prosecution case, the appellant examined D.W. 1, a local tea stall. D.W. 1 deposed that the appellant was arrested on the fateful day when he was coming out of the shop after taking tea. The cycle along with four tins were kept by side of a tree on the road. After examining the evidence on record, I find that the search and seizure of four tins containing imported rapesheed oil from the appellant has been proved beyond reasonable doubt. The evidence of the official witnesses namely P.W. 3 and P.W. 5 is corroborated by independent witnesses, P.W. 1 and P.W. 2. There is nothing to show that there is enmity between the said witnesses and the appellant so as to falsely implicate him. Expert opinion (Exhibit 2) also supports the prosecution case. Admittedly the appellant did not have any licence for transporting rapesheed oil. The defence of the appellant is ventilated through D.W. 1 whose evidence is of little substance. In fact D.W. 1 admits the seizure of rapesheed oil from by cycle which was kept near the shop where the appellant was having tea. D.W. 1 also admitted that the appellant was arrested from the said spot. The defence of the appellant is ventilated through D.W. 1 whose evidence is of little substance. In fact D.W. 1 admits the seizure of rapesheed oil from by cycle which was kept near the shop where the appellant was having tea. D.W. 1 also admitted that the appellant was arrested from the said spot. The evidence of D.W. 1, therefore, does not create any serious dent in the prosecution case. Conviction of the appellant is wholly justified and accordingly justified. Coming to the issue of sentence I find that the appellant does not have any criminal antecedent and two decades have passed in the meantime. Accordingly, I reduce the substantive sentence imposed upon the appellant to the permissible minimum limit. The appellant shall suffer rigorous imprisonment for three months and shall pay a fine of Rs.500/- in default shall suffer imprisonment for one month more. The period of detention undergone by the appellant in course of investigation, enquiry and trial shall be set off in terms of Section 428 of the Code of Criminal Procedure. The 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, in accordance with law, failing which the trial Court shall take all necessary steps for execution of the sentence. Lower court records along with a copy of the judgment be sent down to the trial Court at once. I record my appreciation for the able assistance rendered by Ms. Chatterjee, amicus curiae for disposal of the appeal. Photostat certified copy of the order, if applied for, be given to the parties on priority basis.