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2019 DIGILAW 67 (CAL)

Bhagaban Das Agarwal v. State Of West Bengal

2019-01-15

RAJARSHI BHARADWAJ

body2019
JUDGMENT : RAJARSHI BHARADWAJ, J. 1. The instant appeal has been filed assailing the order of conviction dated 20th May, 1994 passed by the learned Judge, Special Court (E.C. Act), Hooghly in Special Case no. 39 of 1992 arising out of Serampur P.S. Case no. 159 dated 19th May, 1992 thereby convicting the accused/appellant under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for the alleged violation of paragraphs 4 and 7 of the West Bengal Rationing Order, 1964 and sentencing him to suffer simple imprisonment for a period of six months and to pay a fine of Rs.1000/-, in default to suffer further simple imprisonment for another one month. It was further directed that the seized wheat be confiscated to the State after the appeal period is over. 2. The prosecution case in brief is that on 19th May, 1992 Sub-Inspector M.L. Das while visiting the shop of the accused person found that there was 570 k.gs. of wheat in different gunny bags for sale without licence. He seized the wheat from the shop under a seizure list prepared in presence of local witnesses and subsequently, handed over the seized wheat to one Motilal Shaw, a local person and thereafter, he lodged a written complaint for violation of paragraphs 4 and 7 of the Rationing Order, 1964 and also paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977. 3. The defence case is that the appellant kept the wheat for grinding of ata and not for sale and therefore, there had been no violation of paragraphs 4 and 7 of the Rationing Order, 1964. 4. On the basis of the written complaint, a special case no. 39 of 1992 was registered and charge sheet was filed under Section 7(1) (a) (ii) of the Essential Commodities Act and the learned Judge, Special Court, Hoogly (E.C. Act) took cognizance of the alleged offence. 5. Mr. Sekhar Bose, learned senior advocate for the appellant argued that the prosecution examined as many as three witnesses to establish the charge against the appellant. Out of whom P.W.1 was the complainant of this case. P.W.2 and P.W.3 were the independent witnesses and both of them did not support P.W.1. P.W.2 and P.W.3 were neither declared hostile nor they were re-examined by the prosecution to improbalize their versions. Out of whom P.W.1 was the complainant of this case. P.W.2 and P.W.3 were the independent witnesses and both of them did not support P.W.1. P.W.2 and P.W.3 were neither declared hostile nor they were re-examined by the prosecution to improbalize their versions. The statement of P.W.2 and P.W.3 proved that the appellant was neither a wholesaler nor a producer of wheat, he was only a service provider, who was grinding wheat given by the customers and a meagre amount has been charged for such grinding. Therefore, in absence of independent corroboration, the prosecution case could not be held proved solely on the evidence of P.W.1, who was a complainant and he was obviously interested in the success of the case. In support of his submission, he cited a judgment dated 12th June, 2009 passed by this Hon’ble Court in the case of Mahesh Kumar Jain -vs- State of West Bengal (CRA 247 of 1988), wherein it was held, “Thus, in absence of any independent corroboration, I am not inclined to hold solely on the evidence of the police witnesses, who are the members of the raiding party and obviously interested in the success of the case that at the relevant time the appellant was dealing in wheat and wheat products exceeding 15 quintals.” Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and the appellant may be discharged from his bail bond. 6. Learned advocate for the State submitted that the shop of the accused person was situated within Rishra Municipality, which has been covered by Rationing order and the accused person had no authority to keep such huge quantity of wheat in a statutory rationing area without document. He further submitted that from the evidence of prosecution witnesses it is clear that huge quantity of wheat in different gunny bags was seized and such quantity of wheat was obtained not for household consumption and as such, there had been a clear violation of paragraph 7 of the West Bengal Rationing Order, 1964. Thus, learned advocate for the State 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 three witnesses. P.W.1, Sub-Inspector of Police lodged a complaint against the appellant. Thus, learned advocate for the State 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 three witnesses. P.W.1, Sub-Inspector of Police lodged a complaint against the appellant. P.W.2, Motilal Show deposed that the accused did not sell wheat from the ‘Ata Chaki’ and he took custody of the wheat without any weighment. P.W.3, Bijoy Kumar Gupta deposed that the accused had a ‘Ata Chaki’ shop and in his presence police visited the shop. On the date of visit the machine was out of order. The wheat found in the shop belonged to different persons, who brought it for grinding. From the evidence on record it appears that the accused was not a businessman and did not keep the wheat for sale. He was only a service provider who grinds the wheat given to him by the customer. In my view, the accused/appellant was not found guilty for commission of offence under Section 7(1) (a) (ii) of the Essential Commodities Act. He is acquitted of the charge levelled against him and he is discharged from his bail bond. 9. However, I do not like to pass any order reversing the verdict of the trial Court with regard to confiscation of the seized wheat, rather it stands unaltered, since after a lapse of 24 years, it lost its relevance. 10. Accordingly, the appeal is allowed. 11. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 12. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.