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2016 DIGILAW 946 (CAL)

Nanda Kishore Shaw v. State of West Bengal

2016-11-29

JOYMALYA BAGCHI

body2016
JUDGMENT : Joymalya Bagchi, J. 1. Judgment and order dated 01.02.1990 passed by Learned Judge, Special Court, Barasat, under Essential Commodities Act, in Special Case No. 173 of 1987 convicting the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of the provisions of Paragraphs 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oils Dealers Licencing, Order, 1978 and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rupees Rs.1000/- in default to suffer further rigorous imprisonment for six months more has been assailed. 2. The prosecution case as levelled against the appellant is to the effect that Shri Narayan Mitra, Inspector attached to DEB, North-24 Parganas along with other officers conducted a raid in the grocery shop of the appellant under the name and style of “Ashoke Bhandar” on 17.10.1987 at about 10.20 a.m. to 11.00 a.m. In course of the raid, they found 40 bags of Gota Chola weighing 32 quintals each bag containing 80 Kgs., 3 bags Kabli Chola weighing 180 Kgs. each bag weighing 60 Kgs. kept inside the godown of the shop, 50 Kgs. of Moong Dal in a bag, 50 Kgs. of Arhar Dal in a bag of 40 Kgs, Masoor Dal in a bag and 50 Kgs. of Chola Dal in another bag kept in the shop for the purpose of sale. The appellant was present in the shop but failed to produce any licence for storage and sale of the pulses. He, however, produced a trade licence issued in his name by Panihat Municipality. The aforesaid stock of pulses were seized in the presence of witnesses for violation of paragraph 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oil (Dealer Licensing) Order, 1978. During the raid, the appellant ran away from the shop, hence, he could not be arrested. FIR was lodged at Kharda Police Station over the incident. Prayer for confiscation was made in respect of the seized articles. On completion of investigation, charge-sheet was filed. Substance of accusation was read over to the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(1) of Order 1978 who pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as 6 witnesses and exhibited a number of documents. Substance of accusation was read over to the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(1) of Order 1978 who pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as 6 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that the pulses were not stored for the purpose of sale but had been stored by D.W. 1 for grinding them into cattle food in his grinding machine. To prove his defence, he examined 3 witnesses. 4. In conclusion of trial, the Trial Court by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. 5. Nobody appears for the appellant. Mr. Saryati Datta is requested to assist the court as amicus curiae. 6. Mr. Datta, the learned amicus curiae submits that prosecution has not been able to prove its case beyond reasonable doubt. D.W.1 has probabilised the fact that the seized pulses were kept in the shop of the appellant for the purpose of grinding in his machine and, therefore, the conviction ought not to have been recorded against the appellant. He, accordingly, prayed for acquittal. 7. On the other hand, Mr. Datta, the learned advocate for the State, submits that evidence of D.W.1 is highly improbable and is not corroborated by contemporaneous documents to the effect that he was entrusted with the seized pulses for grinding purposes. On the hand, there is evidence on record to show that the pulses were seized from the possession of the appellant who had stored them for sale. He, accordingly, prayed for dismissal of the appeal. 8. P.W.4, Narayan Mitra, was the defacto-complainant and the leader of the raiding party. On 17.10.1987 he along with S.I. D.K. Chanda, (P.W.6) and S.I. B.D. Chatterjee, (P.W.5) held raid in the grocery shop named and styledas “Ashoke Bhander” at new Fulbagan, P.S. Khardah. At the time of raid, the appellant was present in the shop. They found stocks of different kinds of pulses which were exposed for sale. Total quantity of pulses were 35 quintals and 70 kgs. The appellant was asked to produce relevant documents for storing the aforesaid quantity of pulses for sale. Save and except the trade license, the appellant could not produce any other document. They found stocks of different kinds of pulses which were exposed for sale. Total quantity of pulses were 35 quintals and 70 kgs. The appellant was asked to produce relevant documents for storing the aforesaid quantity of pulses for sale. Save and except the trade license, the appellant could not produce any other document. So, the entire quantity of pulses was seized along with the trade licence of the appellant under a seizure list. He proved the trade licence issued by Panihati Municipality (Ext.3). The seized pulses were kept in the custody of Deo Narayana Shaw (P.W.3) under a zimmanama (Ext.4). He could not arrest the appellant as he escaped in the meantime. He returned to Khardah P.S. and lodged a written complaint which was treated as F.I.R (Ext.5). He proved the seizure list (Ext.6) which was written by S.I. D.K. Chanda. He proved his signature on the seizure list (Ext.6/1). O.C. Khardah P.S. endorsed the case to S.I. D.K. Chanda. After weighment of the bags of pulses he found that there were total quantum of 35 quintals and 70 kgs. of pulses. 9. In cross-examination he stated that he found a big scale in the grocery shop for weighment of the articles. They weighed the pulses bagwise. They prepared weighment chart. He seized six items of pulses but he could not say the exact quantity of each variety of pulses. There was ‘gota chhola’ among the seized pulses. There was only one room which was used as a godown by the appellant. 10. P.W. 5, S.I. B.D. Chatterjee & P.W.6 S.I. D.K. Chanda were the members of the raiding party. They have corroborated the evidence of P.W.4 and have proved their signatures on the seizure list. P.W.6 was also the Investigating Officer of the case. He made an application for confiscation of the seized articles. He recorded the statement of the witnesses and filed charge sheet. 11. P.W.1, A.S.I. Debendra Nath Mondal, was an officer attached to Khardah P.S. who received the written complaint (Ext.1) from P.W.4 and drew up a formal F.I.R. 12. P.W.2, Md. Habib, is the independent witness. He deposed that police officers seized bags of pulses and chhola from the shop of the appellant. He put his signature on the seizure list. 13. In cross-examination, he stated that there was one wheat grinding machine in the shop of the appellant. P.W.2, Md. Habib, is the independent witness. He deposed that police officers seized bags of pulses and chhola from the shop of the appellant. He put his signature on the seizure list. 13. In cross-examination, he stated that there was one wheat grinding machine in the shop of the appellant. Chhola in the shop of the appellant was cattle fodder which belonged to different persons and had been kept for the purpose of grinding. 14. P.W.3, Deo Narayan Shaw, is another independent witness who signed on the seizure list. The seized articles were kept in his custody. 15. D.W.1 Rajendra Prasad Shaw, was the owner of a wheat grinding machine situated at P.V. Ghat Road, Agarpara. He could not say the number of the premises where the grinding machine was situated. He stated that the appellant dealt in Bhoota, Chatu etc. The appellant is an adjoining shopkeeper. In his grinding machine grams were ground for cattle fodder. There were 25 bags of grams meant for grinding. He generally grinds cattle fodder in the presence of his customers. The bags which were seized from the shop of the appellant belonged to him. 16. In cross-examination, he did not claim in writing the seized articles. He did not claim the seized articles at any place up to the date. 17. D.W.2, Md. Hossain, is the owner of a Khatal. He tended two buffaloes and one cow. He identified D.W1. He deposed that D.W.1 has chaki shop and the appellant as bhooja shop. He generally crushes the gram and other pulses in the grinding machine of D.W.1. Those were not weighed but crushed in his presence. 18. In cross-examination he admitted that he had no separate khatal. His buffaloes and cow were reared in his residential quarter. He could not produce any paper or document of Panihati Municipality. 19. D.W.3, Ravindar Rai, stated that he had three buffaloes and two cows. D.W.1 has a grinding machine which was used to crush cattle fodder in hischaki shop. The appellant dealt in bhooja etc. and both of them had shops side by side. 20. In cross-examination, he could not say where his khatal was situated. He does not have any document or any licence for khatal. 21. From the evidence on record, it appears that 35 quintals 70 kgs. of various kinds of pulses were seized from the shop of the appellant. and both of them had shops side by side. 20. In cross-examination, he could not say where his khatal was situated. He does not have any document or any licence for khatal. 21. From the evidence on record, it appears that 35 quintals 70 kgs. of various kinds of pulses were seized from the shop of the appellant. It is the defence of the appellant that the seized grams were meant for grinding as cattle fodder in the grinding machine of D.W.1 which is situated in the same premises. However, D.W.1 was unable to produce any document as to entrustment of the said articles for grinding at the behest of P.W.2 and 3 or any other person. That apart, at no material point of time D.W.1 had made an application for return of the seized grams before the court or the collector. Hence, it is difficult to accept the defence version that the seized grams were entrusted to D.W.1 for grinding as cattle fodder and not to the appellant. Accordingly, I am of the opinion that the prosecution has been able to prove its case beyond all reasonable doubt. Hence, the conviction of the appellant is upheld. 22. Coming to the issue of sentence, I find that the incident occurred three decades ago. The appellant has no criminal antecedent. Accordingly, I modify the sentence imposed on the appellant and direct that he shall suffer rigorous imprisonment for 3 months and shall pay a fine of Rs.1000/- in default to suffer rigorous imprisonment for one month more. 23. The bail bond of the appellant is cancelled and he is directed to surrender before the trial court forthwith to serve out the sentence failing which the trial court shall execute the sentence in accordance with law. 24. Detention, if any, suffered by the appellant during investigation, enquiry, trial and pendency of the appeal shall be set off against the substantive sentence imposed upon him in terms of Section 428 Cr.P.C. 25. With the aforesaid modification, the appeal is, accordingly, disposed of. 26. Copy of the judgment along with the L.C.R. be sent back to the Court below for necessary compliance & execution of sentence in accordance with law. 27. I record my appreciation for the able assistance rendered by Mr. Saryati Datta as Amicus Curiae in disposing of the appeal. 28. With the aforesaid modification, the appeal is, accordingly, disposed of. 26. Copy of the judgment along with the L.C.R. be sent back to the Court below for necessary compliance & execution of sentence in accordance with law. 27. I record my appreciation for the able assistance rendered by Mr. Saryati Datta as Amicus Curiae in disposing of the appeal. 28. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.