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2014 DIGILAW 982 (CAL)

Naba Kumar Das v. State of West Bengal

2014-10-29

JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 30th November, 1993 passed by the learned Judge, Special Court, Essential Commodities Act convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of the conditions of West Bengal Baby Food Licensing Order sentencing him to suffer simple imprisonment for three months and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for 15 days. 2. The prosecution case, as alleged, against the appellant is to the effect that on 11th June, 1991 during inspection by sub-inspector D. Bhattacharjee, D.E.B., W.B. (P.W.1) it was detected that the appellant who had a licence for carrying on business in baby food was engaged in carrying on such business and storing baby food in a place other than that mentioned in his licence. It was further alleged that the appellant could not show the stock cum rate board and failed to produce stock register on demand. Stock of baby food was seized under seizure list and Chinsurah P.S. case no. 136 dated 11.6.91 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 was registered for investigation against the appellant. In conclusion of investigation, police report was filed against the appellant. Substance of accusation for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violating paragraph 3(2) of the West Bengal Declaration of Stock and Prices of E. C. Commodities Order, 1977 and paragraphs 2 and 5 of the Conditions of West Bengal Baby Food Licensing Order, 1966 was read over and explained to the appellant. 3. The appellant pleaded not guilty and claimed to be tried. 4. In course of trial prosecution examined as many as five witnesses. Defence of the appellant was one of innocence and false implication. It was his specific defence that consignment of food seized from the place other than the place of business as mentioned in the licence granted to him was due to temporary storage of baby food on account of heavy rain fall on the date of raid, that is, on 11th June, 1991. 5. It was his specific defence that consignment of food seized from the place other than the place of business as mentioned in the licence granted to him was due to temporary storage of baby food on account of heavy rain fall on the date of raid, that is, on 11th June, 1991. 5. In conclusion of trial, the trial Court by judgment and order convicted the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of the conditions of the West Bengal Baby Food Licensing Order, 1966 and sentencing him to suffer simple imprisonment for three months and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for another 15 days. 6. Mr. Mullick, learned counsel appearing for the appellant submitted that the prosecution witnesses in cross examination admitted that there was heavy rain fall on the date of raid. Due to rain fall road leading to the place of business of the appellant was not in a motor-able condition. Accordingly, the stock of baby food was temporarily stored in another place other than the place of business mentioned in the licence. 7. Mr. Banerjee, learned counsel appearing for the State submitted that there is no evidence on record that the appellant had received the seized consignment of baby food in the instant case on that date itself. Accordingly the defence of temporary storage in another place due to heavy rail fall on that date is of no substance. 8. P.W. 1 is the defacto complainant of the case. He is a sub inspector of police attached to D.E.B., W.B. He stated that on 11th June, 1991 he conducted raid at the shop of the appellant. On demand, the appellant produced his licence for dealing in baby food. The description of the shop room was not the same from where baby food was found. The appellant did not have stock cum rate board. Consignment of baby food was accordingly seized upon preparation of seizure list. P.W. 1 lodged first information report in the instant case. In cross-examination, he stated that the stationery shop visited by him was on the east on the railway culvert while the place of business mentioned in the licence was on the west of the railway culvert. 9. P.W. 2 is a seizure list witness. He has proved his signature on the seizure list. In cross-examination, he stated that the stationery shop visited by him was on the east on the railway culvert while the place of business mentioned in the licence was on the west of the railway culvert. 9. P.W. 2 is a seizure list witness. He has proved his signature on the seizure list. In cross-examination, he stated that he did not know the contents of the seizure list. 10. P.W. 3 is another seizure list witness who has proved his signature on the seizure list. In cross examination, he stated that there was heavy rain fall in the locality and due to rain the road near the station had become unfit for traffic movement. One had to use the overhead railway bridge to reach the other side. 11. P.W. 4 is a local shop owner. In cross-examination, he also stated that there was heavy rain fall in the locality. 12. P.W. 5 is the police officer who accompanied P.W. 1 at the time of raid. He has proved the seizure of baby food and his signature on the seizure list. 13. Evidence of P.W. 1 and P.W. 5 clearly establishes beyond reasonable doubt that baby food was stored by the appellant at a shop room which was not mentioned in the licence. Such seizure has not only been proved by the prosecution but also has been admitted by the appellant in his examination under Section 313 of the Code of Criminal Procedure. It was the specific defence of the appellant that due to heavy rain fall on that date he was unable to keep the goods at the place of business as stated in the licence and had temporarily stored the goods at another place. It is a fact that there is evidence of heavy rain fall in the locality on the date of raid. However, no evidence has been led by the appellant to show that he has received the consignment of baby food on that day itself and therefore, due to heavy rain fall was unable to transport the same to his place of business on the other side of the railway line. However, no evidence has been led by the appellant to show that he has received the consignment of baby food on that day itself and therefore, due to heavy rain fall was unable to transport the same to his place of business on the other side of the railway line. In the absence of such evidence on record, it is difficult to accept the explanation given by the appellant that due to heavy rain fall, he was unable to transport the consignment of baby food to his place of business and had temporarily stored the same in another shop room. 14. In light of the aforesaid discussion, I do not find any merit in the instant appeal. The appeal is dismissed. 15. The conviction and sentence of the appellant is upheld. 16. The bail bond of the appellant is cancelled and he is directed to surrender before the trial Court within a period of fortnight from date and serve out the sentence in accordance with law. The period of detention suffered by the appellant during investigation, inquiry and/or trial shall be set off against the term imprisonment imposed upon him in terms of Section 428 of the Code of Criminal Procedure, 1973. 17. Lower court records along with copy of the judgment be sent down at once to the trial Court for necessary action. Appeal is dismissed.