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2018 DIGILAW 1003 (CAL)

Rabindra Nath Bera v. State Of West Bengal

2018-12-21

RAJARSHI BHARADWAJ

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JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment and order of conviction and sentence dated 14th June, 1988 passed by the learned Judge, Special Court (E.C. Act), Midnapore Sadar in DEBGR Case no. 30 of 1986 arising out of Ghatal Police Station Case no. 4 dated 22nd October, 1986 thereby convicting the accused/appellant under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of the provisions of paragraph 3 of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 and paragraphs 4 and 12(2)(a) of the West Bengal Kerosene Control Order, 1968 and sentencing him to suffer simple imprisonment for six months and to pay a fine of Rs.1000/- in default to suffer further simple imprisonment for one month. 2. The prosecution case in brief is that on 22nd October, 1986 the complainant and his raiding party held search and seizure in M.R. shop of the accused from 14.00 hours to 16.00 hours. During checking the complainant found 72 litres of S. kerosene oil under special permit register. It was further alleged in the complaint that as per the stock register there was 30 litres of kerosene oil in M.R. shop and 80 litres of kerosene oil under special permit register and the accused purchased 600 litres of kerosene oil as per memo no. 1256. According to the complainant, the stock of kerosene oil ought to have been 638 litres and 800 grams after sale of 50 litres of kerosene oil under special permit and 21 litres 200 grams under M.R. shop. But on physical verification it was detected by the complainant that there was excess of 72 litres in all for which the accused could not furnish any explanation. The complainant also found one stock board written up to 8th October, 1986 showing stock of 78 kg. sugar, 29.500 kg. levy free sugar, 9 quintal 77 kg. wheat in the shop. It was further alleged by the complainant that the stock shown in the stock register and the stock board was not correct. The complainant also found one stock board written up to 8th October, 1986 showing stock of 78 kg. sugar, 29.500 kg. levy free sugar, 9 quintal 77 kg. wheat in the shop. It was further alleged by the complainant that the stock shown in the stock register and the stock board was not correct. Therefore, the accused violated the provisions of paragraph 3 of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 and the provisions of paragraph 4, 12 and 12(2)(a) of the West Bengal Kerosene Control Order 1968 and thereby the accused committed offence punishable under Section 7(1) (ii) (a) of the Essential Commodities Act, 1955. 3. The complainant (P.W.1) seized the articles under a proper seizure list and the stock was kept in zimma of one Gandhilal Bera under a zimmanama attested by P.W.2 and P.W.3. Thereafter, the accused/appellant was arrested. On the basis of the written complaint, a criminal case, being D.E.B.G.R. Case no. 30 of 1986 arising out of Ghatal P.S. Case no. 4 dated 22nd October, 1986 was initiated against the accused person. Investigation was started and after completion of the same, charge sheet was submitted on 20th February, 1987 against the accused/appellant and the learned Judge, Special Court, Midnapore (E.C. Act) took cognizance of the alleged offence. 4. It appears from the record that the accused/appellant was examined under Section 251 of the Code of Criminal Procedure and he pleaded not guilty and claimed to be tried. 5. Learned advocate for the appellant submitted that the search and seizure effected by the complainant P.W.1 was in violation of the provision of paragraph 15 of the West Bengal Kerosene Control Order, as he had not authorised in this regard. P.W.1 in his deposition stated that he took weighment of the seized articles with the help of the employees of the appellant. Such statement was contradicted by the evidence of P.W.4 namely, Bhubaneswar Tewari, as he stated that the complainant weighed the seized articles himself. P.W.2, who was a seizure witness, had not stated that there was any weighment of the seized articles. Since the said witness was not declared hostile by the prosecution, his evidence was binding on the prosecution. Such statement was contradicted by the evidence of P.W.4 namely, Bhubaneswar Tewari, as he stated that the complainant weighed the seized articles himself. P.W.2, who was a seizure witness, had not stated that there was any weighment of the seized articles. Since the said witness was not declared hostile by the prosecution, his evidence was binding on the prosecution. In this connection, he has relied on a decision of the Hon’ble Supreme Court in the case of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) reported in, (2005) SCC (Cri) 1037. He further submitted that the examination of the accused/appellant under Section 313 of the Code of Criminal Procedure was not in accordance with law as it did not offer to him a full and complete opportunity to explain all the circumstances appearing against him during the trial. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Trial Judge. 6. Learned advocate for the State submitted that the prosecution has been able to prove its case beyond all reasonable doubt and the learned Trial Judge rightly convicted the appellant for commission of offence under Section 7(1) (ii) (a) of the Essential Commodities Act. Thus, he prayed for dismissal of the appeal. 7. Heard learned advocates for the parties and perused the impugned judgment. 8. In the instant case the prosecution examined as many as six witnesses. 9. P.W.1, Tulsidas Lai, Inspector of Police as well as the complainant stated in his deposition that he inspected the stock register, sale register, cash memo book and stock cum rate board in presence of the witnesses. He did not prepare any weighment chart and he took weight of the articles with the help of men of the accused. Thereafter he prepared the seizure list and the witnesses signed on the same. He stated that he prepared one true copy of the stock cum rate board, which was signed and marked as Ext.2. He kept sugar, wheat and kerosene under zimma of Gandhilal Bera. Thereafter, he brought the accused under arrest to Ghatal P.S. He submitted the written complaint along with seizure list, zimmanama and seized documents. He stated that he prepared one true copy of the stock cum rate board, which was signed and marked as Ext.2. He kept sugar, wheat and kerosene under zimma of Gandhilal Bera. Thereafter, he brought the accused under arrest to Ghatal P.S. He submitted the written complaint along with seizure list, zimmanama and seized documents. On the basis of the written complaint, the Duty Officer drew up one formal F.I.R. He took sample from seized kerosene oil in three empty dry clean bottles and sealed and labelled those bottles. 10. P.W.2, Subhas Chandra Pal, who was a seizure witness, stated in his deposition that while passing by the shop of the accused, he found many persons standing in front of the shop. One person gave out that as he had detected shortage in M.R. articles in the shop of the accused, he would start a case against him. On being asked, he signed on a paper. Thereafter, the officer kept the seized articles under the custody of the paternal uncle of the accused. In cross-examination he stated that he found one rate board hanging on the wall of the go-down of the accused. He noticed the quantity of the articles but he did not notice as to whether the price of any such articles was written on that board. 11. P.W.3, Jugal Kishore Panja, who was a seizure witness, was declared hostile by the prosecution but on the prayer of the prosecution he stated in cross-examination that he found one stock cum rate board hanging on the wall in front portion of the shop room, but the police officer did not take that board. 12. P.W.4, Bhubaneswar Tewari, Constable attached to DEB Ghatal, stated that he accompanied the complainant, who inspected the stock register, sale register, M.R. articles, stock cum rate board and cash memo book. Thereafter, the Inspector took weight of wheat, sugar and kerosene oil and seized the articles and prepared seizure list in presence of the witnesses. Thereafter, the Inspector kept the seized articles in the zimma of Gandhi Bera and arrested the accused. In cross-examination he stated that he did not remember what was written in the stock cum rate board. 13. P.W.5, Radha Binod Goswami, Sub-Inspector of Police stated that he drew up formal F.I.R. on the basis of the complaint submitted by P.W.1. 14. Thereafter, the Inspector kept the seized articles in the zimma of Gandhi Bera and arrested the accused. In cross-examination he stated that he did not remember what was written in the stock cum rate board. 13. P.W.5, Radha Binod Goswami, Sub-Inspector of Police stated that he drew up formal F.I.R. on the basis of the complaint submitted by P.W.1. 14. P.W.6, H.B. Chowdhury, Investigating Officer stated that during investigation he visited the spot and examined the witnesses and recorded their statement. After investigation he submitted charge sheet against the accused Rabindranath Bera. 15. On close reading of the evidence of the prosecution witnesses it appears that the statement of P.W.1 and P.W.4 regarding weighment of the seized articles was contradictory. Moreover, the search and seizure effected by P.W.1 was in violation of the provisions of paragraph 15 of the West Bengal Kerosene Control Order, as he was not authorised for seizure of kerosene oil. The evidence of P.W.3 goes to show that there was a stock cum rate board hanging on the wall of the shop room. Therefore, the appellant had not violated the provisions of paragraph 3 of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977. Hence, the learned Judge erred in holding the conviction of the appellant for commission of offence under Section 7(1) (ii) (a) of the Essential Commodities Act. 16. In my view, the appellant is not found guilty for commission of offence punishable under Section 7(1) (ii) (a) of the Essential Commodities Act. The appellant is acquitted of the charge levelled against him and he is discharged from his bail bond. 17. Accordingly, the appeal is allowed. 18. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 19. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.