Calcutta High Court (Appellete Side)
Sri Pratul Kumar Mahapatra And Anr vs The State Of West Bengal on 10 January, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 7 of 1992
SRI PRATUL KUMAR MAHAPATRA AND ANR.
VS
THE STATE OF WEST BENGAL.
Amicus Curiae : Ms. Meenal Sinha, Advocate
For the State : Mr. Pawan Gupta, Advocate
Heard on : January 08, 2017
Judgement on : January 10, 2017
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 14.12.1991 convicting the appellants for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and for violation of paragraph 4 and 35(I)(a) of the Fertilizers (Control) Order 1985(hereinafter referred to as Control Order of 1985). So far as the appellant no. 1 is concerned and violation of paragraph 7 of the Control Order of 1985 so far as the appellant no. 2 is concerned and sentencing them to suffer rigorous imprisonment for six months 2 and also to pay fine of Rs.1,000/- in default to simple imprisonment for one month more each.
The prosecution case as alleged against the appellants is to the effect that P.W. 1 Ashok Kumar Sinha, D.E.B. Inspector Midnapore along with P.W. 5 Arun Kumar Chowdhury, D.E.O. Midnapore, P.W. 7 S. N. Ghosh, D.E.O. Egra, and two watcher constables P.W.6 Jit Bahadur Newar, and one Dhanbahadur Sikri raided the fertilizers shop-cum-godown of the appellant no. 1 at Kamalpur, Balighai P.S. Egra at 10.30 hours on 06.08.1989. The shop-cum-godown was open and appellant no. 2 being the employee of the appellant no. 1 was found at the sale counter engaged in selling fertilizers for the customers.
P.W. I disclosed his identity and issued notice upon the appellant no. 1 to produce the licence, stock register, sales register, cash memo book and the stock-cum-rate board for inspection. The appellant could not produce the aforesaid items and in presence of local witnesses five kinds of fertilizers in 104 bags and a register of credit sale of fertilizers were seized from the said shop- cum-godown.
Appellant no. 2 was asked to call appellant no. 1 the owner of the shop, but the latter could not be traced. Appellant no. 2 was arrested at the spot.
On the written complaint of P.W. I at Egra Police Station Case no. 76/89 dated 06.08.89 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (as amended upto date) for violation of paragraph 4,7 and 35(a) and 35(b) of Order of 1985 was registered.
3
In conclusion of investigation charge-sheet was filed against the appellants for commission of the aforesaid offences. The appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as seven witnesses. The defence of the appellants was to the effect that the business of fertilizers in the said shop room was being conducted in accordance with law. The appellant no. 1 examined himself as a defence witness (D.W. 1) and produced the licence, stock cum rate board and other registers pertaining to the said business during trial.
In conclusion of trial the trial court by judgement and order dated 14.12.1991 convicted and sentenced the appellants, as aforesaid.
Nobody appears for the appellant. Ms. Sinha, learned amicus curiae submitted that the prosecution has not been able to prove his case beyond reasonable doubt. The appellant no. 1 had requisite licence which has been submitted for renewal at the time of raid and such fact was established by production of renewed licence during trial. It was the specific case of the appellants that the raiding party did not seize the stock cum board, stock register and sales register at the time of raid which were all produced during trial. It is further argued that there is no evidence of sale of fertilizers by appellant no. 2 and, therefore, he ought to be acquitted in the instant case.
Per contra, Mr. Gupta, learned counsel for the State submits that there is evidence on record that stock cum rate board was not displayed in the shop room. Stock register, sales register and cash memo were not produced during raid but was belatedly produced during trial and were rightly rejected as 4 manufactured documents by the Trial Court. He prayed for dismissal of the appeal.
P.W. 1, Ashok Kumar Sinha, is the de facto complainant and the leader of the raiding party. He deposed that he was posted at D.E.O., Egra, on 06.08.1989. He conducted raid at the fertilizers shop of the appellant no. 1. Appellant no. 2 was found engaged in selling fertilizers to the customers in the shop. Appellant no. 2 failed to produce stock-cum-rate board, sale register, cash memo book, stock register in spite of service of notice (exhibit - 1) upon him. He seized stock of different kinds of fertilizers stored in the shop in 104 bags. Each bag weighed 50kgs. The seizure list was prepared in the presence of police witnesses who also signed on the seizure list. He proved the seizure list as exhibit 2 and his signature as exhibit 2/1 and the signature of the appellant no. 2 as exhibit 2/2. Under the same seizure list a ledger account was also seized. The ledger account showed the names of the customers who took fertilizers from the shop on credit. The seized bags of fertilizers were given to one Shyamcharan Pradhan after executing zimmanama as exhibit 3. He proved his signature on the zimmanama as exhibit 3/2. He arrested appellant no. 2 and lodged complaint with Egra police station (exhibit 4). He proved his signature thereon as exhibit 4/1. Officer-in-Charge of the Egra police station endorsed the case to S.I., S.N. Ghosh, D.E.O., Egra, for investigation. In cross-examination, he stated that appellant no. 2 did not describe himself either as a salesman or as paid employee of the appellant no. 1. On arrival of the raiding party the customers left the shop. He did not take down the names of the customers. He deposed that the bags of 5 fertilizers were found intact and no loose bag of fertilizers was found in the shop. P.W. 2, Shyamcharan Pradhan deposed that on 06.08.1989 at about 1.30P.M. a raid was conducted in the shop of the appellants. He did not see appellant no. 2 sitting in the shop. He did not hear the police authorities asked the appellant no. 2 to produce any kind of paper. The police officers seized 104 bags of fertilizers. He proved his signature on the seizure list. He also signed the zimmanama and the seized fertilizers were kept in his zimma. In cross-examination, he stated that the police officers were writing the seizure list when he arrived at the shop. In cross-examination, he deposed that the rate board was displayed in the shop at the time of inspection and that the appellant no. 1 kept accounts of business of fertilizers in a trunk inside the shop. At this stage, he was declared hostile and cross-examined by the prosecution. P.W. 3, Kali Pada Nanda, is another seizure list witness who was also declared hostile. He, however, admitted seizure of 104 bags of fertilizers from the shop of the appellants and his signature on the seizure list. P.W. 4, Kenaram Maity, who was alleged to be a customer in the shop was declared hostile and has not supported the prosecution case. P.W. 5, Arun Kumar Chowdhury, was S.I. of police, attached to D.E.B, Midnapore and posted at Contai at the material point of time. He accompanied P.W. 1 during raid and has corroborated the evidence of the said witness. He identified his signature on the seizure list as Exhibit 2/4. P.W. 6, Jit Bahadur Newar was a watcher constable who was also present at the time of raid. He corroborated the evidence of P.W. 1 and P.W. 5. P.W. 7 was D.E.O. Egra at the time of occurrence. He accompanied P.Ws 1 and 5 at the time of raid in the shop of the appellants on 6 06.08.1989. He has corroborated the evidence of the aforesaid witnesses. He has proved his signature on the seizure list as exhibit 2/5. He investigated the case as per direction of the Officer-in-Charge and submitted charge-sheet. Appellant no. 1 has been examined as D.W. 1. He proved his licence as exhibit 'A'. He deposed that at the time of holding raid he had submitted his registration certificate for renewal before the registering authority and subsequently had obtained the original licence after renewal. He exhibited the licence as exhibit 'A'. He also exhibited the stock register as exhibit 'C', Cash Memo Book as exhibit 'D' and stock-cum-rate board as exhibit 'E'. In cross-examination, he deposed that he wanted to produce the aforesaid documents. He denied the suggestion that the said documents were subsequently manufactured and produced.
From the aforesaid evidence on record it appears that the raid was conducted in the shop-cum-godown of the appellant no. 1. At the time of raid, appellant no. 2 was at the shop. In spite of notice he was unable to produce stock register, cash memo book and sale register. Credit register was, however, seized. The independent witnesses, though declared hostile, have supported the seizure of 104 bags of fertilisers from the shop of the appellant no. 1. It is the evidence of the appellant no. 1 that the stock-cum-rate board was displayed in the shop and the registers were kept in the shop room under lock and key and subsequently was produced in the course of trial.
I find that no effort was made by the appellants to produce the stock registers immediately after the seizure by way of any correspondence with the concerned authorities or the investigating agency. Belatedly, in the course of 7 trial the stock-cum-rate board, stock register, sale register and cash memo book have been produced. There are no endorsements in the said registers to show that they had been maintained and duly verified in the ordinary course of business.
Therefore, I am of the opinion that the consistent evidence of the police witnesses clearly show that there was no stock-cum-rate board, stock register, cash memo book and sale register maintained in the shop-cum-godown of the appellant no. 1. Hence, commission of offence by the said appellant no. 1 punishable under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 4 and 35(I)(a) of the Fertilizers (Control) Order 1985 is upheld. With regard to appellant no. 2, I find that there is no evidence of sale in the shop by the said appellant. P.W. 5 has not supported the prosecution case and was hostile. P.W. 1 admitted that he did not note the names of the customers in the shop. Hence I am of the opinion that the evidence on record does not establish that appellant no. 2 was selling fertilizers to the customers at the time of raid. Hence, the prosecution case of violation of paragraph 7 of Control Order 1985 by the appellant no. 2 has not been proved beyond reasonable doubt and he is entitled to the benefit of doubt. Accordingly conviction of appellant no. 1 is upheld but that of appellant no. 2 is set aside.
Coming to the issue of sentence, I find that the incident occurred three decades ago and appellant no. 1 does not have any criminal antecedent. Accordingly, I reduce the sentence imposed upon the appellant no. 1 and direct him to suffer rigorous imprisonment for three months and to pay fine of 8 Rs.1,000/-, in default to suffer simple imprisonment for one month more. Period of detention suffered by appellant. No. 1 during investigation, enquiry and trial shall be set off against the substantive sentence imposed on him under Section 428 of the Code of Criminal Procedure. Bail bond of the appellant no. 1 is cancelled and he is directed to surrender before the learned Trial Court forthwith and to serve out the sentence in accordance with law. Appellant no. 2 shall be discharged from his bail bond after six months under Section 437A of the Code of Criminal Procedure.
Accordingly the appeal is partly allowed.
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 Ms. Sinha, 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.) Item No. 129 SB/ sdas