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2016 DIGILAW 505 (CAL)

Shyamsundar Agarwal v. State of West Bengal

2016-06-24

JOYMALYA BAGCHI

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JUDGMENT : JOYMALYA BAGCHI, J. 1. Judgment and order dated 16th October, 2001 passed by the learned Additional Sessions Judge, Fast Track Court, Asansol in Criminal Appeal No. 1 of 2001 affirming the judgment and order dated 18th June, 1987 convicting the petitioner and other accused persons for commission of offence punishable under Section 7 of the Essential Commodities Act, 1955 and sentencing them to suffer rigorous imprisonment for six months each and to pay fine of Rs.1000/- each, in default, to suffer imprisonment for a further one month each has been assailed. 2. The prosecution case, as alleged, against the petitioner and other accused persons is to the effect that the petitioner and one, Onkarmal Agarwalla and Nathmal Agarwalla carried on business under the name and style of M/s. Bonjamihary Anthracite Coal Co. It is further alleged that the firm of the petitioner used to receive rail pieces from ISCO on a priority allocation basis. It is also alleged that the accused persons could not satisfactorily account for 500 pieces of 24 lbs. of steel rails entrusted to it. In course of examination, prosecution examined as many as 20 witnesses. It appears from the inspection reports (Exhibits-7 & 8) that only nine pieces of rails out of 539 pieces entrusted to the petitioner's company were utilised and the remainder was misutilised. There is evidence on record that the petitioner was a partner of the firm. On the basis of the said evidence on record, conviction of the petitioner along with other accused persons was recorded under Section 7 of the Essential Commodities Act. They were accordingly, sentenced to suffer rigorous imprisonment for six months each and to pay fine of Rs.1000/- each, in default, to suffer imprisonment for a further one month each. In appeal, the conviction and order of sentence was upheld. 3. Learned advocate appearing for the petitioner submitted that the materials on record do not establish entrustment or misappropriation. It is also submitted that the sentence was too severe. 4. Learned advocate appearing for the State submitted that concurrent finding of fact is based on evidence on record and does not require interference. 5. I have considered the materials on record. I find that prosecution led evidence of entrustment of rail lines and it appears from the inspection reports (Exhibits-7 & 8) that the accused persons failed to account for the said rails entrusted to them. 5. I have considered the materials on record. I find that prosecution led evidence of entrustment of rail lines and it appears from the inspection reports (Exhibits-7 & 8) that the accused persons failed to account for the said rails entrusted to them. Accordingly, conviction under Section 7 of the Essential Commodities Act has been rightly recorded. 6. Coming to the issue of sentence I find that the incident occurred in the year 1969. There was no provision for imposition of minimum sentence of imprisonment as punishment for commission of offence under Section 7 of the Essential Commodities Act, 1955 as amended till 1969. In fact, Essential Commodities (Second Amendment) Act, 1967 (hereinafter referred to as the ‘Second Amendment Act, 1967’) amending Section 7 of the Essential Commodities Act, inter-alia, provided that in respect of first offence if fine meet the ends of justice it shall be open to the Court to impose a sentence of fine alone without a substantive sentence of imprisonment by assigning reasons in support thereof. Only in respect of subsequent offence a minimum sentence of one month was prescribed. The relevant proviso to Section 7(1)(a) of the Essential Commodities Act (as incorporated by the Second Amendment Act, 1967) as is set out herein below:- “… … … Provided that in the case of a first offence, if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded refrain from imposing a sentence of imprisonment and in the case of a second or subsequent offence, the Court shall impose a sentence of imprisonment and such imprisonment shall not be less than one month; and” 7. In view of the fact that there is no criminal antecedent of the petitioner and this is his first offence and the fact that almost 50 years have lapsed in the meantime, I am of the opinion that no worthwhile purpose would be served in subjecting the petitioner to a sentence of substantive imprisonment. 8. Accordingly, I modify the sentence and direct that the petitioner shall pay a fine of Rs.10,000/-, in default, to suffer imprisonment for three months. Fine shall be paid within a month from date failing which the trial court shall be at liberty to execute the sentence including the enforcement of the default sentence of imprisonment in accordance with law. 9. Accordingly, I modify the sentence and direct that the petitioner shall pay a fine of Rs.10,000/-, in default, to suffer imprisonment for three months. Fine shall be paid within a month from date failing which the trial court shall be at liberty to execute the sentence including the enforcement of the default sentence of imprisonment in accordance with law. 9. With the aforesaid modification, the petition is disposed of. 10. Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.