Calcutta High Court (Appellete Side)
Ram Lagan Chowdhury & Anr vs The State Of West Bengal on 22 November, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 338 of 1989
Ram Lagan Chowdhury & Anr.
Versus
The State of West Bengal
Amicus Curiae : Mr. Anirban Datta
For the State : Mr. Saryati Datta
Heard on : 22nd November, 2016
Judgement on : 22nd November, 2016
Joymalya Bagchi, J.:
None appears for the appellants. Mr. Anirban Datta, learned Counsel, is requested to appear as amicus curiae. Mr. Saryati Datta, learned Counsel, who normally appear for the State, is requested to appear in this matter.
2
The appeal is directed against judgement and order dated 28.08.1989 passed by learned Judge, Special Court, Hooghly in Case No.178 of 1987 convicting the accused appellants for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for alleged violation of paragraph 3(1) and (2) of the West Bengal Imported Vegetable Oils (Prohibition of Unauthorised Sale) Order, 1984 and sentencing each of them to suffer rigorous imprisonment for fourteen months and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for six months.
The prosecution case, as alleged against the appellants, is to the effect that on 28.06.1987, the officer-in-charge of Serampore Police Station proceeded to enquire at Seoraphullyghat, the secret information diarised as Serampore Police Station General Diary Entry No. 26/28 dated 28.06.1987. In the course of such enquiry, they apprehended the appellants who were carrying on 200 tins of imported rapeseed oil of S.T.C. brand in two boats. The boat belonging to the appellant no. 1 had 93 tins of rapeseed oil and that of appellant no. 2 had 107 tins of rapeseed oil. The accused persons failed to produce any authority or cash memo for possession of the aforesaid articles and as such the S.I. of the concerned police station arrested them, seized those articles and a criminal case was registered. In conclusion of investigation, police report was filed under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraphs 3(1) and 3(2) of the Order, 1984. The appellants pleaded not 3 guilty and claimed to be tried. In the course of trial prosecution examined as many as nine witnesses. It was the specific defence of the appellants that they were mere boatmen and oil belonged to another person. In conclusion of trial, the learned Trial Court convicted and sentenced the appellants, as aforesaid.
Mr. Anirban Datta, learned Counsel appearing as amicus curiae, submits that it is the specific case of the appellants that they were not the owners of the rapeseed oil and had specifically named the person who were the owners of the seized oil. No investigation was made towards that end and the appellants had been wrongly convicted.
On the other hand, Mr. Saryati Datta, learned Counsel appearing for the State, submits that rapeseed oil was seized from the possession of the appellants. It was open to the appellants to probabilise by leading defence evidence that the oil belonged to another person. They have singularly failed to do. As a result, the conviction and sentence under challenge ought to fail.
Prosecution has examined P.W.1, S.I., D. Datta, who is the defacto complainant in the instant case. He deposed that on 28.07.1986 he was posted at Serampore Police Station. On receipt of secret information, he went to the ghat near Nistarini Mandir and found 200 tins of rapeseed oil of S.T.C. brand in two boats. The appellants were the boatmen, who were loading the oil. They did not disclose the names of the owners of the rapeseed oil. The witnesses seized the oil and took them to the police 4 station. He prepared the seizure list and lodged General Diary being No. 26/28 dated 28.06.1987. Nobody claimed that rapeseed oil. Under order of Sub-Divisional Controller, the oil was sold. He identified two tins out of 198 tines as Mat Ext. -I. He proved the forwarding report as Exhibit 1 and the seizure list as Exhibit 2. P.W. 2, Asit Kumar Das, constable, was attached to the Serampore Police Station. P.W. 6, Narayan Chandra Ghosh, constable, was attached to Serampore Police Station on the fateful day. Both of the witnesses were members of the raiding party and have corroborated the evidence of P.W. 1. P.W. 3, Aurobinda Sarkar, was the S.I. of the Serampore Police Station. He received 200 tins of rapeseed oil from P.W. 1 at the mal khana. In the presence of the Inspector, Food and Supplies, oil was sold. Before sale weightment chart was prepared. He proved his signature on weightment chart as Exhibit- 3. After pouring the oil, two empty tins were seized under the seizure list as Exhibit - 4. P.W. 4 was the Inspector under Sub Divisional Controller, Food and Supplies, Serampore. On 04.07.1987 he went to Serampore Police Station and sold 200 tins of STC brand rapeseed oil. He made an weightment chart and found 29 quintals of oil. He sold it at government rate. He received a total sum of Rs.33852/-. He identified the empty tins in Court. P.W. 5 was the Sub Divisional Controller of Food and Supplies, Serampore. He gave order for sale of rapeseed oil. He received order from E.C. Collector to sell the seized oil and deposited the sale proceeds at Serampore treasury. He passed order for implementation of such direction. P.W. 7 was the duty 5 officer of Serampore. He received the written complaint and drew up formal first information report. P.W. 8, was the S.I. of police who filed the charge-sheet. P.W. 9, S.I. of police, lodged written complaint over the incident.
From the evidence on record, there is no doubt that 200 tins of rapeseed oil of STC brand were seized from the possession of the appellants. Only defence advanced by the appellants is that there were mere carriers of the oil which belonged to other persons. It has been contended that the owners of the rapeseed oil had been specifically named. This fact was within the special knowledge of the appellants. It was, therefore, their duty to probabilise the ownership of rapeseed oil in favour of another person. They have singularly failed to do so. On the other hand, the appellants were found in possession of rapeseed oil and have failed to discharge their onus as to licit possession of the said oil. No witness was adduced on behalf of the defence probabilising their licit possession of rapeseed oil in any manner whatsoever.
Under such circumstances, the conviction of the appellants is upheld. Coming to the issue of sentence, I find that the incident occurred three decades ago and there is no criminal antecedents of the appellants.
Accordingly, I reduce the sentence upon the appellants for three months rigorous imprisonment and direct them to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for one month more. Period of detention suffered by the appellants during investigation, enquiry and trial 6 shall be set off against substantial sentence imposed on them under Section 428 of the Code of Criminal Procedure. Bail bonds of the appellants are cancelled and they are directed to surrender before the learned Trial Court forthwith and to serve out the sentence in accordance with law.
The appeal is accordingly disposed of.
Let copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
I record my appreciation for the able assistance extended by Mr. Anirban Datta, learned Counsel appearing as amicus curiae, for disposal of the appeal.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) sdas