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2015 DIGILAW 631 (CAL)

Ram Sarup Mahato v. State of West Bengal

2015-07-29

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. In this appeal the judgment and order of conviction passed by the Learned Special Court, Hooghly on the 30th of January, 1990 in Special Case No. 71 of 1988 convicting the appellant-accused under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (for short the 1955 Act) is under challenge. By the judgment and order impugned the Learned Special Court was pleased to find the appellant guilty of violation of paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (for short the 1977 Order) as well as paragraphs 4 and 7 of the West Bengal Rationing Order, 1964 (for short the 1964 Order) and also of violation of Section 7(1)(a)(ii) of the 1955 Act. 2. The Learned Special Court sentenced the appellant to suffer rigorous imprisonment for six months and pay a fine of Rs. 500/-, in default to suffer a further rigorous imprisonment of two months. 3. Ms. Sreeparna Das, Learned Advocate who was appointed as Amicus Curiae by this Court, appears and submits that the case against the appellant commenced on the basis of a First Information Report (for short FIR) lodged by a complaint by one Md. Nasirullah, also the PW1, then posted as SI, DEB, Hooghly. 4. According to the complaint which was lodged on 23rd February, 1988, PW1 along with force comprising other personnel held a raid at the grocery shop of the appellant on 23rd February, 1988. During the raid PW1 found several essential commodities kept in the shop for sale and customers were also purchasing such commodities. The man in the shop room, one Sri Surendra Prasad, who was attending to the customers, failed to produce trade licence, stock register, sales register, cash memo, stock and rate board in support of running the said grocery shop. The said Surendra Prasad, PW3, who was later declared hostile, merely produced an invalid trade licence at the time of the raid. 5. PW1 also found that boiled rice was kept in the said shop room for sale. On being asked to produce a valid permit for selling boiled rice in a statutory rationing area, PW3 failed to produce the same. Accordingly, PW1 initiated the case under the relevant provisions of the three statutory enactments being the 1955 Act, the 1964 Order and the 1977 Order. On being asked to produce a valid permit for selling boiled rice in a statutory rationing area, PW3 failed to produce the same. Accordingly, PW1 initiated the case under the relevant provisions of the three statutory enactments being the 1955 Act, the 1964 Order and the 1977 Order. PW1 claims to have prepared a seizure list duly attested by local witnesses. The seizure list, inter alia, mentions 5 kgs. of mustard oil, one quintal of boiled rice, one quintal 80 kgs. flour, 50 kgs. 'musur dal' and 40 kgs. of 'arhar dal'. In terms of the complaint the FIR was recorded on the same date. 6. Ms. Das, Learned Amicus Curiae submits that although in the written complaint PW1 refers to raid at the grocery shop of the appellant with a force, none of the members of the force were ever examined. It is also not clear as to what impelled the PW1 to hold the raid as well as his authority to hold such raid. 7. Learned Amicus Curiae further points out that 3 PWs have deposed that they have signed on a blank seizure list. Taking this Court to the evidence of PW2 at page 7 of the paper book, Learned Amicus Curiae points out that PW2 states that he was made to sign on a blank paper by PW1. PW2 admits that there was a rate board in the grocery shop, PW2 further states that he did not see any rice being sold on the date of the surprise raid, i.e. 23rd February, 1988. 8. Next taking this Court to the evidence of PW3, the said Surendra Prasad and grandson of the appellant, Learned Amicus Curiae explains that although PW3 was declared hostile his cross-examination may be considered not to be altogether irrelevant. According to PW3 his signature was obtained on a document whose contents were not disclosed to him. The rice was seized from the home of the appellant which was behind the grocery shop at a close distance. PW3 importantly points out that no weighment was done in his presence. 9. Next, coming to PW4, Learned Amicus Curiae submits that he was a relative of the appellant inasmuch as the appellant was the husband of his sister. PW4, although also declared hostile, has revealed in his evidence that about 8-10 kgs. PW3 importantly points out that no weighment was done in his presence. 9. Next, coming to PW4, Learned Amicus Curiae submits that he was a relative of the appellant inasmuch as the appellant was the husband of his sister. PW4, although also declared hostile, has revealed in his evidence that about 8-10 kgs. of rice were recovered from the kitchen of the appellant and the house of the appellant was behind the grocery shop. PW4 admits to have signed on a blank paper. 10. Coming to the evidence of PW5, the Investigating Officer (IO), Learned Amicus Curiae elaborately argues that PW5-Investigating Officer (IO) did not investigate and/or ascertain the details of the force which accompanied PW1. PW5-IO also did not verify whether on that particular date any rice was kept in the shop for selling purpose. No witnesses who claim to have purchased rice from the said shop were examined by PW5-IO. 11. In this connection Learned Amicus Curiae points out that both PWs 3 and 4 have stated that the rice was brought from the house of the accused. 12. Now placing the evidence of PW1-complainant Learned Amicus Curiae further submits that PW1 admits to having not prepared any weighment chart. It is surprising, according to Learned Amicus Curiae, that PW1 claims to have weighed the rice himself. There is also a lack of proper explanation as to why a seizure list or a proper weighment chart was not prepared in accordance with procedure. 13. Further Learned Amicus Curiae submits that there is no clear finding on the side of the prosecution that boiled rice was being sold from the said grocery shop of the appellant. Second, the seizure list was not prepared in accordance with law and the witnesses were made to sign on blank pieces of paper. Third, no witness could prove the actual selling of rice from the said grocery shop. Fourth, the rice which may have been seized from the adjacent house of the appellant may have been kept for domestic consumption by the large joint family of the appellant. 14. Third, no witness could prove the actual selling of rice from the said grocery shop. Fourth, the rice which may have been seized from the adjacent house of the appellant may have been kept for domestic consumption by the large joint family of the appellant. 14. According to Learned Amicus Curiae, the Learned Trial Court was persuaded to convict the appellant on the assessment that the home of the accused was at a five minutes walking distance from the shop room and the defence version that the rice was brought from the kitchen of the home to be shown as being sold in the shop room which cannot be believed. 15. Per contra, Sri Subir Banerjee, Learned Additional Public Prosecutor submits that admittedly PW2 admits to the seizure of boiled rice. There is sufficient corroboration by the PW2 of the prosecution case in its essence. 16. Learned Additional Public Prosecutor further submits that even assuming but not admitting that the rice was seized from the house of the appellant, still the appellant had no business to store one quintal of rice at his home citing the requirement of domestic consumption. Although it is claimed that the family members of the appellant are large, their exact number has not been proved. 17. Further, according to Learned Additional Public Prosecutor, PW3 admits to the seizure, although from the house of the appellant but, does not explain the authority under which the appellant could keep one quintal in a restricted area. No evidence has been adduced by the appellant to prove the family members dependant on him and requiring consumption of one quintal of rice at given point of time. 18. Learned Additional Public Prosecutor further points out that from the cross-examination of PW4 it appears that there were 8-10 members of the family of the appellant. However, according to PW3, the grandson, there are 10-12 members of the family. Therefore, there is a variation regarding the number of family members of the appellant from the evidence of PWs 3 and 4. Even they have not satisfactorily explained that one quintal of rice was necessary for consumption by his family at a given point of time. 19. However, according to PW3, the grandson, there are 10-12 members of the family. Therefore, there is a variation regarding the number of family members of the appellant from the evidence of PWs 3 and 4. Even they have not satisfactorily explained that one quintal of rice was necessary for consumption by his family at a given point of time. 19. Taking this Court to the cross-examination of the appellant, being the DW1, Learned Additional Public Prosecutor submits that PW1 has admitted that his residence and the shop are at a distance of five minutes' walk from each other. Therefore, Learned Additional Public Prosecutor further submits that the Learned Trial Court was correct in appreciating the seizure in the context of the distance between the two, viz. the shoproom and the house of the appellant. 20. Having heard the parties and considering the materials on record this Court finds that the charge essentially pertains to the seizure of rice and, particularly boiled rice from the grocery shop of the appellant meant for sale to the public. The appellant, through his grandson, i.e. the PW3 failed to produce a licence for selling the said boiled rice from a shop room which was located in a statutory rationing area. 21. This Court further notices that there is a common thread of evidence running through the deposition of all the PWs and in their cross-examination, including the PWs 3 and 4, who although declared hostile, all admit to seizure of the rice. 22. The defence story is that the seizure was made from the residence of the appellant and not from the shop room. The defence attempted to parry the prosecution thrust by the version that the rice was seized from the house of the appellant and not from the shop - the house being in close proximity to the shop room. 23. Therefore, considering that the seizure of rice is an admitted position and such seizure is testified to by the independent witness, PW2, this Court finds substance in the submissions of Learned Additional Public Prosecutor that the defence has not been able to prove with precision that the rice was meant for domestic consumption of a specified number of family members of the appellant. 24. 24. In his cross-examination PW2 has admitted that he has been purchasing commodities from the shop of the appellant for the last 3- 4 years and, on a particular date he saw that rice was being sold from a tin kept at the shop. 25. In his evidence PW2 also admits that PW1 recovered rice in one 'bosta', pulses etc. from the shop. He admits that at the time of such raid PW3 was present. PW2 also proves his signature on the seizure list marked Exhibit 1/1. Therefore, a minor inconsistency apart, PW2 corroborates the prosecution case in its essence. This Court is therefore of the considered view that the Learned Trial Court correctly relied upon the evidence of PW2 with regard to the seizure of the boiled rice from the shop of the appellant. In view of the story prepared by the defence regarding the house of the appellant being in close proximity to his shop room, this Court is also persuaded to agree with the Learned Trial Court that the appellant as DW1 has himself stated that his residence and the shop room were at a distance of five minutes walk. 26. Therefore, the Learned Trial Court correctly held that PW4, a relative, who was declared hostile, has falsely deposed that the house of the appellant was at the back of the shop room. The Learned Trial Court was furthermore correct in holding that the defence story is an impossibility that one quintal of rice would be carried from a distance of five minutes from the kitchen of the appellant to the shop room for the purpose of the seizure. 27. In the above premises this Court is also persuaded to hold that the Learned Trial Court correctly opined that the appellant did not have a valid authority to sell rice in a statutory rationing area. 28. Accordingly, the judgment and order of conviction dated 30-01-1990 is upheld. 29. However, on the question of sentence this Court is required to notice the views of the Bombay High Court in Mohanlal Gokuldas v. Emperor, reported in AIR 1948 Bom 358 delivered in respect of an offence of profiteering under the Essential Supplies (Temporary Powers) Act, 1946 read with the Cotton Cloth and Yarn Control Order, 1945. At paragraph 4, 5, and 6 the Hon'ble Bench was pleased to hold as follows:- "4. Mr. At paragraph 4, 5, and 6 the Hon'ble Bench was pleased to hold as follows:- "4. Mr. Somjee has addressed an argument to us with regard to the sentence imposed by the Magistrate. He contends that the fine imposed, viz. two lakhs of rupees, is excessive, not only excessive but it is savage in its character and should be reduced. One of the main elements of every punishment must be its deterrent element. It must deter others from committing the offence for which the accused is convicted and sentenced. There is no doubt that the offence for which the accused has been convicted is an offence of a highly anti-social character. He has been convicted of profiteering and these profiteers are the posts of society who prey upon the poor and the needy and there can be no doubt that it is in the interests of society that men like these should be put down with a heavy hand. Therefore, what the Court has got to consider is what sentence will prove deterrent and deter others similarly situated from trying to profiteer at the cost of society and committing offences which are anti-social in character. 5. Usually a fine is imposed when the offence is the result of cupidity. When a person wants to make more money and to get rich and to amass a fortune at the cost of society and of its poor and needy members, the only way to deter others from following in his footsteps is to make it clear that crime is not easy and that he should not be permitted to enjoy his ill-gotten wealth. If the only sentence were the sentence of imprisonment and if the accused was permitted to come back after serving his sentence to enjoy the wealth which he has amassed by anti-social acts or by committing offences, then it certainly would not deter others from following in his footsteps. Therefore, not only must a fine be imposed, but the fine must be of such a character and of such an amount as to be really deterrent in its character. 6. What fine is or is not deterrent depends upon various factors. Therefore, not only must a fine be imposed, but the fine must be of such a character and of such an amount as to be really deterrent in its character. 6. What fine is or is not deterrent depends upon various factors. It would depend upon the nature of the offence, upon the status and position of the accused and upon what amount would really make him feel that he has been properly punished, because in the case of people like these mere deprivation of personal liberty is not enough. It is only when they are deprived of their possessions that they really feel that due punishment has been meted out." 30. In AIR 1952 SC 14 (In Re: Admaji Umar Dalal v. State of Bombay) which arose out of an offence of black-marketing under the Essential Supplies (Temporary Powers) Act, 1945, the Hon'ble Apex Court at Paragraph 5, 7 and 8 was pleased to hold as follows:- "5. The fifth accused stated that accused 2 and 3 brought to him a delivery order asking him to delivery order asking him to deliver high speed diesel oil but that he delivered to them Kerosene oil at their request. The first accused admitted that he on behalf of his firm placed an order for 65 barrels of high speed diesel oil through the second accused but denied all knowledge about the alleged delivery of kerosene oil. The second accused said that he placed an order for diesel oil with Sunbeam Oil Company for 65 barrels and obtained a delivery order from the company and gave it to the third accused sent him to take delivery of the barrels from the godown of the company. He denied having told the fifth accused to deliver kerosene oil instead of diesel oil. The third accused admitted having taken delivery of the barrels on the instructions of the second accused and having sent them to Wadi Bundar in two lorries. He was surprised to learn that the barrels contained Kerosene oil. He denied that he ever asked the company to deliver kerosene oil for diesel oil. The fourth accused said that he personally took no part in the transaction and had committed no offence. The sixth accused stated that he had delivered the barrels as ordered by the fifth accused and had committed no offence. He denied that he ever asked the company to deliver kerosene oil for diesel oil. The fourth accused said that he personally took no part in the transaction and had committed no offence. The sixth accused stated that he had delivered the barrels as ordered by the fifth accused and had committed no offence. The learned Presidency Magistrate convicted accused 2,3 and 5 on the charges levelled against them and acquitted accused 1, 4 and 6 as he felt some doubt in regard to them. 7. On appeal the convictions and sentences were maintained except that the fine imposed on the fifth accused was remitted. The High Court held that having regard to the manner in which the offence was committed and the purpose for which kerosene was attempted to be sent outside the State of Bombay which obviously was to sell it in the black market the sentences passed could not be regarded as excessive. 8. The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations, but the courts has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. It seems to us that due regard has not been paid to these consideration in these cases and the zeal to crush the evil of black marketing and free the common man from this plague has perturbed the judicial mind in the determination of the measure of punishment." 31. Applying the abovenoted principles to the facts of the present case, this Court is of the considered view that having regard to the appellant' station in life viewed through the prism of the scale of his cupidity as well as the long years of stigma and the mind reflecting more on the crime with every passing year during the long pendency of this appeal, the ends of justice factoring in the deterrence, will be served if the fine is enhanced and the term of imprisonment reduced. 32. Therefore, having regard to the particular circumstances of this case it is directed that the sentence awarded by the Ld. Special Court be modified. The appellant is directed to suffer one month's simple imprisonment and to pay a fine of Rs. 2,000/-, in default to suffer a further period of one month' simple imprisonment, if not already paid and served. 33. CRA 84 of 1990 stands accordingly disposed of. 34. Learned Public Prosecutor is directed to regularise the appointment of the Learned Amicus Curiae. 35. Let a copy of this order be sent down along with the Lower Court Records to the Learned Trial Court forthwith.