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2015 DIGILAW 466 (CAL)

Gulam Kaberia v. State of West Bengal

2015-06-05

SUBRATA TALUKDAR

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JUDGMENT Subrata Talukdar, J. In this appeal the judgment and sentence of conviction dated 29th November, 1990 passed by the Ld. Special Court (Essential Commodities Act), Burdwan in TR Case No. 27 of 1990 is under challenge. The appellant has challenged the judgment and sentence convicting him for violation of para 3(2) of the West Bengal Declaration of Stock of Prices of Essential Commodities Order, 1977. The appellant was however, acquitted for alleged violation of clauses (1) and (2) of para 12 of the West Bengal Kerosene Control Order, 1968. Sri Debojyoti Das, Ld. Amicus Curie points out that the complaint against the appellant was lodged by one Nirmalendu Mukherjee, SI of Police, DEB, Burdwan dated 19th November, 1989. According to the complaint addressed to the Officer-in-Charge Khandaghosh P.S., a raid was conducted by the said SI Nirmalendu Mukherjee at the shop premises of the appellant on 19th November, 1989 in between 11:30-12:30 hours. Upon reaching the shop premises it was found by the police that the stock book of kerosene oil and the stock board of the appellant, who was a dealer in kerosene oil were written to indicate the stock position as on 18th November, 1989, i.e. the previous date. The complainant found that as per opening stock of 18th November, 1989 the kerosene oil was 1935 litres. In terms of the cash memo book 665 litres were sold on 18th November, 1989. There was no sale shown on 19th November, 1989. On physical checking four barrels of kerosene oil each containing 200 litres and 1 barrel containing 175 litres totalling 975 litres of kerosene oil was found instead of 1270 litres and thus there was a shortage of 295 litres of kerosene oil. On the above facts complaint was lodged under the West Bengal Kerosene Oil Control Order, 1968 and Essential Commodities Order, 1977 (supra). The appellant-accused was sought to be prosecuted under Sections 7(1)(a) and 11 of the Essential Commodities Act, 1955. The Ld. Trial Court came to be finding that the measurement carried out by the raiding police officer of the stock in hand on 19th November, 1989 was not free from dispute. Several of the witnesses have testified to the fact that no actual measurement of the stock of kerosene oil in the shop was carried out by the police. The Ld. Trial Court came to be finding that the measurement carried out by the raiding police officer of the stock in hand on 19th November, 1989 was not free from dispute. Several of the witnesses have testified to the fact that no actual measurement of the stock of kerosene oil in the shop was carried out by the police. Both PWs 1 and 2, who were the seizure list witnesses stated that no actual measurement was carried out by the police. According to the seizure list witnesses the barrels of kerosene oil were merely tilted and, while four of them were found to be intact, one of them was slightly empty. The seizure list witnesses also testified to the presence of kerosene oil in a separate container and, from the whole it was assumed that there was a shortage of kerosene oil compared to the stock indicated on board from the previous date. Even the raiding police officer, the said SI Nirmalendu Mukherjee (PW3) admitted in his cross-examination that he could not state by which means he measured the kerosene oil. PW3 also could not say to what extent there could be an admissible handling loss. From the evidence of the defence witnesses it transpires that the appellant-accused pleaded with the police to measure the kerosene oil. However, the requests made by the appellant where not heeded to by the police and neither any attention was paid to the kerosene oil separately kept in a large saucepan or ‘karai’. In view of the above noted discrepancies the Ld. Trial Court correctly gave benefit of doubt to the appellant and answered the first charge of short measurement against the prosecution. However, the Ld. Trial Court was of the view that the raid was conducted sometime at around 12:00 hours on 19th November, 1989. The Ld. Trial court disbelieved the evidence of the DWs that the timing of the raid was at around 7-8 am and therefore the stock of the particular date, i.e. 19th November, 1989 could not be written and shown. Rather the previous day’s stock position, i.e. 18th November, 1989 was shown. The Ld. Trial court disbelieved the evidence of the DWs that the timing of the raid was at around 7-8 am and therefore the stock of the particular date, i.e. 19th November, 1989 could not be written and shown. Rather the previous day’s stock position, i.e. 18th November, 1989 was shown. The appellant-accused and his firm were therefore found guilty of violating para 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 since the appellant had failed to show the opening stock and the rate of kerosene oil on the stock board for the particular date, i.e. 19th November, 1989. The Ld. Trial Court came to the above conclusion by expressing satisfaction that the evidence of the three PWs disclosed that the raid was held at about 1200 hours on 19th November, 1989. Therefore, there was sufficient time with the appellant to display and/or write the stock and rate board for the particular date, i.e. 19th November, 1989. However, from a close scrutiny of the evidence on record this Court notices that PW2, a seizure list witness, has stated and such statement is recorded in his evidence-in-chief as follows:- “On 19.11.89 at about 9/10 am, the police officer held the raid in the kerosene oil shop of the accused.” In his statement under Section 313 CrPC the appellant-accused to a specific question answered as follows:- “The police officer came at 8 am. when the board was being written. The police officer did not allow to write anything on the board. when the board was being written. The police officer did not allow to write anything on the board. I am not guilty.” Regarding the timing of the raid DW1 in his evidence-in-chief stated as follows:- “On 3rd Agrahayan, 1396 BS at about 7/8 am, he saw police officer in the kerosene oil shop of the accused and seized the documents after necessary verification and that it was a Sunday.” Similarly DW2 states as follows:- “On 3rd Agrahayan, 1396 BS at about 7-8 am he saw police officer in the kerosene oil shop of the accused and that he went to the shop on seeing a crowd in the shop from the road.” In comparison to the above noted evidence only PW1 who is a resident of Machkhanda and owns a grocery shop at Khalerpur - both under P.S. Raina - whereas the appellant-accused has his kerosene oil shop at Polempur under P.S. Khandaghosh states in his chief that on 19.11.89 the police held a raid in the shop of the accused at about 12-12:30 pm. The time given by PW1 is corroborated by PW3 who says that on 19.11.89 between 11:50 am and 12:30 pm he held the raid at the business place of the appellant-accused at Polempur with a force. This Court is of the view that the Ld. Trial Court failed to correctly notice that not all the three PWs had given out the time of the raid to be 1200 hours. On the contrary it would be apparent that PW2 had given the time of the raid as 9/10 am which was closer to the time given by the DWs and also the appellant-accused under Section 313 CrPC. Therefore, to suggest that the time of the raid was 1200 hours and not earlier cannot be said to be corroborated unimpeachably by the evidence on record. Therefore, this Court is inclined to grant benefit of doubt to the appellant on the point that the timing and manner of the raid was such that he was reasonably prevented from displaying the day’s stock and rate on the board. It must also be noticed at the same time that the stock position of the previous date, i.e. 18th November, 1989 was found displayed by the raiding party which indicates that the appellant-accused is not an errant as alleged to be in the matter of displaying the stock and rate board. It must also be noticed at the same time that the stock position of the previous date, i.e. 18th November, 1989 was found displayed by the raiding party which indicates that the appellant-accused is not an errant as alleged to be in the matter of displaying the stock and rate board. This Court therefore is persuaded to hold in favour of the appellant-accused that he was prevented by bonafide circumstances from displaying the stock and rate board for the day on account of the on-going raid. Accordingly, the conviction of the appellant-accused for violation of para 3(2) of the West Bengal Declaration of Stocks and prices of Essential Commodities Order, 1977 is set aside. Both the sentence of imprisonment and payment of fine are quashed. The appeal succeeds. Criminal Appeal No. 516 of 1990 stands allowed. Let a copy of this order be sent down along with the Lower Court Records to the Ld. Trial Court forthwith. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.