Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 426 (CAL)

Dipak Sarkar v. State of West Bengal

2015-05-12

SHIB SADHAN SADHU

body2015
JUDGMENT : Shib Sadhan Sadhu, J. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the impugned judgment and order dated 21st April, 2014 passed by the learned Additional Sessions Judge, Bishnupur, Bankura in Criminal Appeal No. 02 of 2013 affirming the judgment and order of conviction and sentence dated 4th September, 2013 passed by the learned Judicial Magistrate, 2nd Court, Bishnupur, Bankura in G.R. Case No. 272 of 2005. 2. I have heard Mr. Shiladitya Sanyal, learned Advocate appearing for the petitioner and Mr. Amartya Ghose, learned Advocate appearing for the State. I have perused the materials available on records including the impugned judgment and order with special attention. Further I have carefully gone through the case diary materials. 3. The allegation against the petitioner/accused in terms of the First Information Report is that he has caused change in the area, character and mode of use of the land in question unauthorisedly without any prior permission of the Collector and in violation of the provisions of Section 4C of the West Bengal Land Reforms Act, 1955. On the basis of such First Information Report, Kotulpur Police Station Case No. 76 of 2005 dated 6th September, 2005 under Section 4(D) of the West Bengal Land Reforms Act, 1955 was registered and after investigation charge sheet was submitted against the present petitioner/accused. After holding trial, the learned Magistrate came to the finding that the accused/petitioner had constructed the said petrol pump on the disputed land during the pendency of the conversion proceeding initiated as per his application. Interestingly, the original records of that conversion proceeding was not produced before the learned Magistrate on the plea that it was not traceable and, still the learned Magistrate ventured to rely on the photocopy of such proceeding on the ground that when the primary evidence is lost, this secondary evidence, being the photocopy of the said proceeding, can be accepted as secondary evidence under Section 63(2) of the Indian Evidence Act, 1872 as the same was prepared by mechanical process which in themselves ensure the accuracy of the copy. 4. 4. Being aggrieved, the present petitioner/accused preferred an appeal and the learned Additional District & Sessions Judge, Bishnupur, Bankura, affirmed the order of conviction without applying his mind, far to speak of applying judicial mind and he did not even bother to advert to or refute the grounds agitated by the learned advocate for the appellant and he affirmed the order of conviction mechanically. 5. Thus, the core issue involved is that the alleged conversion, i.e., the nature and character of the land was changed without having any proper permission from the competent authority. It is admitted position that both the M/s. Hindusthan Petroleum Corporation Limited and the present petitioner/accused submitted application for conversion of the land in question after purchasing the land on 11th November, 2003. It is further admitted position that the District Magistrate, Bankura by his letter dated 21st January, 2004 requested the Superintendent of Police, Bankura and the Director General of West Bengal Fire Service for making necessary enquiry and for submitting their views concerning the installation of the petrol pump and the site plan as filed by the accused. The Panchayat and the local people also did not raise any objection against the proposed construction. Thereafter, the Additional District Magistrate, Bankura, issued 'no objection certificate' for storage of 9 K.L. of M.S. and 37.2 K.L. of HSD in underground mild steel tanks at the plot in question subject to fulfilment of the terms and conditions recommended by the Director General, West Bengal Fire Service. Thus, it becomes evident that everything was done in a regular manner and by observing all the legal formalities. Had there been no order/permission of conversion or had such permission been refused, there could not have been such issuance of orders by the top level District Authorities permitting installation of the petrol pump at the disputed plot. On this backdrop, the factum of alleged loss of the original papers of the conversion proceeding assumes significance. I am surprised to see the legal conception demonstrated by the learned Magistrate while passing his order of conviction after accepting the photocopy of the said proceeding collected during investigation by the Investigating Officer. Photocopy of any document cannot be treated as a copy made from the original by mechanical process, which in themselves ensure the accuracy of the copy, and copies compared with such copies. Because there might be scope for tampering/addition/alteration etc. Photocopy of any document cannot be treated as a copy made from the original by mechanical process, which in themselves ensure the accuracy of the copy, and copies compared with such copies. Because there might be scope for tampering/addition/alteration etc. There is also no certificate that those were compared with the originals. Be that as it may, the first and foremost thing before a secondary evidence could be admitted into evidence, the loss of primary evidence or the cause of non-production of such primary evidence must have to be proved by the party who seeks to rely on such secondary evidence by producing cogent and convincing evidence. But no such course was adopted and still the learned Magistrate took the burden upon his own shoulder on behalf of the prosecution. It is very much embarrassing and also condemnable attitude. Another factor which strengthens the story of loss of the records of the aforesaid conversion proceeding is that the Investigating Officer did not even bother to seize the Lease Agreement dated 23rd July, 2004 entered into by and between the present petitioner/accused and the M/s. Hindusthan Petroleum Corporation Limited. Yet another peculiar thing, which arrests the attention easily is that although the learned Magistrate relied on the photocopies of the conversion proceeding on the ground that those were seized by the Investigating Officer during investigation but on perusal of the case diary no such seizure is traced nor any such seizure list is found. So, taking a conjoint view of all these, it can be safely concluded without any manner of doubt that the investigation was perfunctory and prosecution did not at all succeed in proving the alleged guilt of the accused beyond the shadow of reasonable doubt. 6. Therefore, from the aforesaid reasons, I find and hold that the impugned order of conviction and its affirmation cannot be sustained and are liable to be set aside. Accordingly, the instant revisional application is allowed. 7. There shall, however, be no order as to costs. 8. In the result, the impugned judgment and order dated 21st April, 2014 passed in Criminal Appeal No. 02 of 2013 and the order dated 4th September, 2013 passed in G.R. Case No. 272 of 2005 are hereby set aside. 9. The petitioner/accused be set at liberty. 10. 7. There shall, however, be no order as to costs. 8. In the result, the impugned judgment and order dated 21st April, 2014 passed in Criminal Appeal No. 02 of 2013 and the order dated 4th September, 2013 passed in G.R. Case No. 272 of 2005 are hereby set aside. 9. The petitioner/accused be set at liberty. 10. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.