Calcutta High Court (Appellete Side)
Kalipada Mishra And Another vs The State Of West Bengal on 11 September, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
The Hon'ble Justice Joymalya Bagchi
C. R. A. NO. 49 OF 1991
KALIPADA MISHRA AND ANOTHER - Appellants
-Versus -
THE STATE OF WEST BENGAL - Respondent
For the Appellants : Mr. Manish Sen
Amicus Curiae : Ms. Suchitra Chatterjee
For the State : Mr. Subir Banerjee, Ld. A. P. P.
Heard on :
And
Judgment on: September 11, 2014
Joymalya Bagchi, J.:
The appeal is directed against judgement and order dated 16.1.1991 passed by the learned Judge, Special Court, Contai, Midnapur, in E. C. A. Case No. 12 of 1987 convicting the appellants under sections 7(1)(a)(ii) and 9(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act of 1955') and sentencing them to suffer rigorous imprisonment for six months and to pay a fine of Rs.1000/- each in default to suffer simple imprisonment for one month each on each count, both the sentences to run concurrently.
The prosecution case as alleged against the appellants is to the effect that on 29.10.1987, one Hrishikesh Das (P.W.1) being the Chief Inspector of Food & Supplies, Contai, along with others being P. W. 2, Kalyan Dev Mal and P. W. 3, Birendranath Giri, and S. I. of Police, M. M. Chakraborty of Contai Police Station and other constables inspected the grocery shop of the appellants. The appellant no.2 was in the shop at that time and on demand he could not produce books of accounts. After search, some books of accounts were found and stock-cum-rate board was also found to be displayed in front of the shop. On physical verification, 24 kgs. of mustard oil, 60 kgs. of vanaspati (rasui), 93 kgs. and 600 grms. of coconut oil, 3 quintals of oil seeds, 10.35 quintals of pluses of different kinds and 390 kgs. of sugar and sugarcandy were found. These stocks did not tally with the stocks mentioned in the stock board. Numerous purchase memos of mustard oil were found in the shop. According to purchase memos 8.02 quintals of mustard oil and 10.86 quintals of mustard oil were received by the appellants during the months of September, 1987 and October, 1987 till the date of inspection. It was further alleged that stocks of mustard oil were not entered into the stock register and the stock registers had not been updated. The appellant no.2 failed to produce any licence required under the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealer Licensing) Order, 1978 (hereinafter referred to as the 'Order of 1978') for possessing pulses above 10 quintals and edible oils above 5 quintals. He was also unable to explain the discrepancy between the actual stock and the stock mentioned in the stock board. The stock board, various articles found on physical verification along with the stock registers, cash memos, rent receipts were seized under seizure list. On the next day, P. W. 1 lodged complaint with Officer-in-Charge, Contai Police Station. In conclusion of investigation charge sheet was submitted under section 7(1)(a)(ii) for violation of para 3 of the Order of 1978 and under section 9(ii) of the Act of 1955 for violation of para 3(2)(3) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter referred to as the 'Order of 1977'). Plea was recorded under section 251 of the Code of Criminal Procedure. The appellants pleaded 'not guilty' and claimed to be tried.
In the course of trial, the prosecution examined as many as six witnesses. The defence of the appellants was one of innocence and false implication. It was the specific defence of the appellants that no physical examination of the goods was made in the course of inspection. It was also pleaded that the appellant no. 1 was no way connected with the business of the grocery shop.
Mr. Sen, learned counsel appearing for the appellants submitted that trade license seized in the course of investigation stood in the name of appellant no.2 and appellant no.1 was no way connected with the business. He further submitted that physical weightment of the seized articles is not supported by the independent witnesses, namely, P. Ws. 4 and 5. He further submitted that weight of the bags and other articles had not been taken into account while making physical weighment of the stock of pulses and therefore, the prosecution case cannot be said to have been established beyond reasonable doubt. He, accordingly, prayed for acquittal of the appellants.
Ms. Chatterjee, learned Amicus Curiae supported the submission of Mr. Sen. She submitted that local witnesses had not been examined. It was also her submission that the appellants had stated during their examination under section 313 of the Code of Criminal Procedure that no physical weightment was made. She also disputed the weighment chart.
Mr. Banerjee, learned Additional Public Prosecutor appearing for the State submitted that the evidence of prosecution witnesses clearly established that the quantity of pulses seized from the grocery shop exceeded 10 quintals. Such fact is also evident from the entries made in the stock-cum-rate board. Accordingly, he submitted that the conviction of the appellants did not call for interference.
P. W. 1 was the Inspector of Food and Supplies, Contai, at the material point of time. He along with P. Ws. 2 and 3 conducted the raid at the grocery shop named and styled as M/s. Ganesh Vandar. At the time of search, two stock registers were found. Stock-cum-rate board was also found. On physical verification, 24 kgs. of mustard oil, 60 kgs. of Vanaspati (Rosui), 93.600 kgs. of coconut oil, varieties of oil seeds of 3 quintals, 10.35 kgs. of pulses of all varieties, 3.90 quintals of sugar and sugar candy were found. There was variance with the physical stock on one hand and the entries in the stock registers and the stock-cum-rate board on the other hand. The stock registers, stock-cum-rate board, physical stock as well as cash memos were seized under seizure list. Articles were given under the jimma of the appellant no.2, Amal Mishra. In cross-examination, he stated that he raided the shop on the written instruction of S.D.O. Contai. Many owners of shops and residential houses were present at the time of seizure. He found trade license and food license in the shop. He stated that trade license stood in the name of 'Amal Kr. Mishra and others'.
P. Ws. 2 and 3 have corroborated the evidence of P. W. 1.
P. Ws. 4 and 5 are the independent witnesses of the seizure. They have proved their signatures on the seizure list. In cross-examination, P.Ws. 4 and 5 have stated that weighment was not made in their presence and no weighment chart was also prepared.
P. W. 6 is the Investigating Officer of the case.
From the evidence on record, I find that P. Ws. 1, 2 and 3 have proved the search and seizure at the grocery shop of the appellants. They have also proved the weightment of the physical stock found in the shop. It has been argued that the weightment of the physical stock was not accurate as the weight of the bags in question had not been separately made. It has also been argued that such weighment of stock is not supported by P. Ws. 4 and 5. I find that the weighment of the seized articles had been entered in the seizure list. Seizure list was signed without demur by appellant no. 2, Amal Kr. Mishra. He also accepted jimma of the seized physical stock without protest as to its weightment. In view of such fact, it is difficult to believe that appellant no.2, Amal Kr. Mishra, had any objection to the factum of weightment of the physical stock or that the stock which was given in jimma to him was at variance to the entries made in the seizure list.. Hence, I am unable to accede to defence plea that the weightment of the physical stock in the shop was not done or that the same was at variance to the actual stock in the shop.
I find that in the stock-cum-rate board the quantity of pulses in the shop was declared as above 10 quintals. By such declaration the defence admitted that there was a physical stock of pulses above 10 quintals in the said shop at the time of raid. No license has been produced by appellants and therefore violation of para 4 of order of 1978 stands established. There is also evidence on record that there was substantial discrepancy between the quantities displayed in the stock-cum-rate board and the physical stock which was seized from the shop at the time of raid. The quantity of essential commodities declared in the stock-cum-rate board was incorrect and therefore, there was violation of para 3(2)(3) of the Order of 1977.
Coming to the role of appellant no.1, Kalipada Mishra, I find that the trade license stood in the name of 'Amal Kr. Mishra and others'. There is nothing on record to show that expression 'others' referred to appellant no. 1. There is also no evidence on record that the appellant no.1 was in fact playing a role in running the grocery shop. The learned Trial Court on mere surmise and conjecture erroneously came to the conclusion that the appellant no.1 being the brother of the appellant no.2 must be involved in the running of the shop along with him.
In the absence of evidence on record connecting the appellant no. 1 with the business of the grocery shop, I am inclined to extend benefit of doubt to appellant no. 1 in the instant case.
For the aforesaid reasons, conviction and sentence imposed upon appellant no.1 is set aside. He is acquitted of the charges levelled against him.
The conviction recorded against appellant no.2, Amal Kumar Mishra, is upheld. Bearing in mind the long passage of time, the sentence imposed upon the appellant no.1 is reduced. The appellant no.2 shall suffer simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- on each count, in default to suffer simple imprisonment for fifteen days more, both the sentences to run concurrently. Detention already suffered by appellant no.2 in the meantime shall be set off under the provision of section 428 of the Code of Criminal Procedure.
The appellant no.1, Kalipada Mishra, shall be discharged from his bail bond after 6 months in view of section 437A of the Code of Criminal Procedure, 1973. The appellant no. 2, Amal Kumar Mishra, is directed to surrender before the trial Court within a month and serve out his sentence in accordance with law.
In view of the fact that neither the appellants nor any other person have claimed the confiscated articles, the order of confiscation is left undisturbed.
The appeal is allowed to the aforesaid extent.
Let a copy of the judgement along with the lower court records be sent down to the learned Trial Court forthwith.
I record my appreciation for the able assistance rendered by Ms. Chatterjee, learned advocate as Amicus Curiae for disposal of the instant appeal.
(Joymalya Bagchi, J.)