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2014 DIGILAW 1054 (CAL)

Nakul Chandra Ghosh v. State of West Bengal

2014-11-12

JOYMALYA BAGCHI

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Judgment : Joymalya Bagchi, J. Nobody appears for the appellant. Mr. Pratik Bhattacharyya is requested to appear as amicus curiae to assist the Court. The appeal is directed against the judgment and order dated 1st December, 1983 passed by the learned Judge, Special Court at Nadia in E.C. case No. 31 of 1983 convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing him to rigorous imprisonment for 10 days and fine of Rs.400/- in default, to suffer further rigorous imprisonment for 15 days more with further direction that the seized rice be confiscated to the State. The prosecution case as alleged against the appellant is that on 24th May, 1983 at 5.30 p.m. two police officers attached to Kotwali police station on the basis of secret information conducted a search at the shop of the appellant where he was found selling rice without having any stock register, sale register, valid licence, stock cum price board and cash memo book. Accordingly, they seized 1.40 qt of a tap rice and 4.50 qt of boiled rice under seizure list in presence of witnesses. On the basis of written complaint, P.W. 1 A. K. Ghosh, sub inspector of police attached to Kotwali police station, Kotwali Police Station case no. 60 dated 24th May, 1983 under Section 7(1)(a)(ii) of the Essential Commodities Act read with Section 18 of the Essential Commodities (Special Provision) Act was registered. In conclusion of investigation, charge sheet was filed against the appellant for violating paragraph 3 and paragraph 18 of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 (Order of 1967) and Paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter referred to as the order of 1977). Substance of accusation was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as six witnesses and exhibited a number of documents. Two defence witnesses were examined. It was the specific defence of the appellant that he had requisite licence which was deposited with the office of the Sub-divisional Controller for renewal. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as six witnesses and exhibited a number of documents. Two defence witnesses were examined. It was the specific defence of the appellant that he had requisite licence which was deposited with the office of the Sub-divisional Controller for renewal. It was also the specific defence of the appellant that the stock cum rate board was displayed in the shop and the stock register and cash memos were available in the shop but was not seized by the Investigating Agency. The defence produced stock and rate board and requisite registers in course of trial. In conclusion of trial, the trial Court by judgment and order dated 1st December, 1983 convicted the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentenced him to rigorous imprisonment for 10 days and fine of Rs,.400/- in default, to suffer further rigorous imprisonment for 15 days more with further direction that the seized rice be confiscated to the State. Mr. Bhattacharyya as amicus curiae submitted that the allegations against the appellant are unfounded. Appellant had requisite licence to run the business and the same has been accepted by the trial Court. The prosecution evidence with regard to non-display of stock and rate board was at variance with one another. Official witnesses denied that it was displayed while independent witnesses stated otherwise. Stock cum rate board was produced in Court in course of trial. Stock registers were also produced which bore countersignature of the Inspector of Food and Supplies Department. He accordingly prayed for acquittal of the appellant. Mr. Banerjee, learned Additional Public Prosecutor opposing the appeal submitted that the independent witness had turned hostile and did not support the prosecution case. The stock registers were not produced immediately after raid. It is doubtful as to whether the stock registers were maintained regularly in the ordinary course of business. I have examined the evidence on record. P.W.s 1, 2 and 3 are official witnesses who were the members of the raiding party. They have stated that on 24th May, 1983 around 5.30 p.m. they raided the shop of the appellant. The appellant was found selling price. The appellant failed to produce any stock register, sale register, valid licence, stock cum price board and cash memo. P.W.s 1, 2 and 3 are official witnesses who were the members of the raiding party. They have stated that on 24th May, 1983 around 5.30 p.m. they raided the shop of the appellant. The appellant was found selling price. The appellant failed to produce any stock register, sale register, valid licence, stock cum price board and cash memo. The rice in the shop of the appellant was seized. On the other hand, the independent witnesses to the seizure list namely P.W.s 4 and 5 stated that stock cum rate board was displayed in the shop. They even stated that the police refused to see any khata. P.W. 6 is the Investigating Officer of the case. He submitted charge sheet. In cross-examination, he admitted that he did not make any enquiry from the Civil Supply office whether the appellant had any licence for selling rice. D.W. 1 is an employee of Sub-divisional Controller, Food and Supply, Sadar, Nadia. He deposed that on 5th January, 1977 the appellant was granted licence for dealing rice. He identified the original licence. In cross examination, he stated that the register must bear the signature of Inspector of Food and Supplies. D.W. 2 is the son of the appellant. He produced the stock cum rate board (Material Exhibit 1). He stated that the board was written by himself on 24th May, 1983. He stated that stock register, sale register, cash memo books were maintained for the purpose of business. He produced three registers maintained by him. The registers were signed by Goutam Mukherjee, Sub Inspector of Food and Supplies. His signature was duly proved. He also produced cash memos. He produced the receipt issued by the office of the Sub-divisional Controller, Food and Supplies with regard to deposit of the licence. It is clear from the aforesaid evidence on record that the appellant had requisite licence to carry on business and had deposited his licence for renewal with the Department on the date of raid. With regard to the charge of non-display of stock and rate board in the shop, it appears that the prosecution is a divided house. Official witnesses P.W. 1, 2 and 3 have stated that there was no such stock cum rate board displayed in the shop whereas independent seizure witnesses have stated that there was a stock cum rate board displayed therein. Stock cum rate board was produced. Official witnesses P.W. 1, 2 and 3 have stated that there was no such stock cum rate board displayed in the shop whereas independent seizure witnesses have stated that there was a stock cum rate board displayed therein. Stock cum rate board was produced. Accordingly, it is difficult to hold that the prosecution has been able to prove non-display of stock cum rate board in the shop beyond reasonable doubt. With regard to the maintenance of registers, I find that the registers were produced in Court during trial and were duly exhibited. Signature of the inspector was also proved without objection. The trial Court disbelieved the said registers on the ground that the sub inspector has not been examined. When the signatures of the inspector on the registers were proved without objection, it is difficult to accept the reasoning of the learned trial Judge that registers cannot be accepted on the ground of non-examination of the said inspector. In this regard it may be pointed out that duty to effectively investigate the case lies with the police. The Investigating Officer did not make any investigation or enquiry at the office of the Sub-Divisional Controller. It was incumbent upon the prosecuting agency to disprove the signatures of the inspector by adducing adequate rebuttal evidence, in that regard, if necessary. The defence in my opinion had improbilised the prosecution case by production of the requisite registers duly signed by the concerned inspector. Accordingly, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt. The appeal is allowed. The conviction and sentence imposed upon the appellant is set aside. Confiscation of seized rise by the learned Magistrate was wholly without jurisdiction in view of Section 6 E of the Essential Commodities Act and accordingly the order of confiscation of the seized rice is also set aside. The appellant shall be discharged from his bail bonds after expiry of six months from date in terms of Section 437A of the Code of Criminal Procedure. Copy of the judgment and lower court records be sent down to the Court below at once.