Calcutta High Court (Appellete Side)
Majed Ali vs The State Of West Bengal on 24 June, 2025
2025:CHC-AS:1112
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 290 of 1999
Majed Ali
-Versus-
The State of West Bengal
For the Appellants : Mr. Atulya Sinha, Ld. Amicus Curiae
For the State : Ms. Faria Hossain, A.P.P.
Mr. Anand Keshari.
Hearing concluded on : 18.06.2025
Judgment On : 24.06.2025
Prasenjit Biswas, J:-
1.The judgment and order dated 16.06.1999 passed by the learned Judge, Special Court, (E.C. Act), Murshidabad, in connection with E.C. Case No. 10 of 1993, Sessions Trial No. 81/93 arising out of Bhagawangola P.S. Case No. 21/93 dated 31.1.1993 is assailed in this appeal.
2. By passing the impugned judgment and order the Special Court found this appellant guilty for commission of offence punishable under Section 2025:CHC-AS:1112 2 7(1)(a)(ii) of the E.C. Act for violation of Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967 and sentenced him to suffer simple imprisonment for three months and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one month.
3. In short campus the case of the prosecution is that:
"On 30.01.1993 at about 16.05 hrs., the de-facto complainant had been to Malibasa under P.S. Bhagwangola near the brick field of Zilla Parishad of Berhampore, Jangipara Pucca Road and noticed that one rickshaw van carrying 39 cartoons containing lubricating oil was going from Berhampore to Bhagobangola. The de-facto complainant intercepted the said rickshaw along with the person who was driving the same in a suspicious manner and on checking the cartoon several sealed tins of lubricating oil containing 5 litres each was found. On demand the accused persons failed to produce any valid challan or licence in support of carrying that lubricating oil. On interrogation the accused stated that those sealed tins containing lubricating oil were carried for business purpose at Bhagawangola Bazar. Thus, the accused violated the provisions of Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967 and hence he is held for prosecution under Section 7(1)(a)(ii) of Act X of 1955 for violating the provision of Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967. The said 39 sealed tins containing lubricating oil was seized by the de-facto complainant by preparing a seizure list in presence of the witnesses. Over the 2025:CHC-AS:1112 3 complainant a case was lodged before the concerned police station being Bhagawangola, P.S. Case No. 21 of 1993 dated 31.01.1993. After completion of investigation charge-sheet was submitted by the police personnel against these accused persons under Sections 7(1)(a)(ii) of Act X, 1955 for violation of Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967."
4. In this case, three witnesses were examined by the side of the prosecution.
Neither any oral nor any documentary evidence was adduced by the side of the defence.
5. Mr. Atulya Sinha, Ld. Amicus Curiae appeared on behalf of the appellant said that there are apparent contradictions and omissions in the statement of witnesses cited on behalf of the prosecution and as such, the conclusion of guilt of this appellant as well as directing confiscation of the seized goods to the State is bad in law. It is said by the learned Advocate that the prosecution has been failed to prove recovery of the lubricating oil from the accused persons and as such, conviction of the appellant based on the findings as made in the impugned judgment and order by the learned Trial Court is illegal and is liable to be interfered with. As per submission of the learned Advocate there is no document in the record from which it can be said that the seized articles were belonged to this appellant and the learned Trial Court failed to appreciate the said fact. It is assailed by the learned Advocate that the prosecution has led evidences of witnesses contradicting to each other and it would not be prudent to arrive at a conclusion of the guilt of the appellant on the basis of the said 2025:CHC-AS:1112 4 evidences on record. So, it is submitted by the learned Advocate that the impugned judgment and order of conviction passed against this appellant may be set aside.
6. Ms. Faria Hossain, learned Advocate for the State said that there is nothing illegality or irregularity in the impugned judgment and order of conviction for which the impugned judgment passed by the learned Trial Court may be interfered with. It is said by the learned Advocate that PW1 and PW2 who are the independent witnesses to the seizure witnesses stated that 39 cartoons containing lubricating oil was recovered from the possession of this appellant and was seized by the de-facto complainant by preparing seizure list in his presence and in presence of other witnesses. The signatures of these witnesses in the seizure list are marked as Exhibit 1 and 1/1. It is further said by the learned Advocate that PW3 also supported the contentions of the written complaint by stating that this appellant on the relevant date and time was carrying 39 cartoons containing lubricating oil by his rickshaw and was going to sell it at the Bhagawangola Bazar. So, as per submission of the learned Advocate that there is no doubt about the testimonies of the prosecution witnesses and as such, the impugned judgment and order may be affirmed and the appeal filed by this appellant convict may be rejected outright.
7. I have considered the rival submissions advanced by both the parties.
8. PW1, Abdul Bari one of the seizure witnesses stated that on the relevant date and time he noticed one rickshaw van carrying cartoons containing lubricating oil and the police officer opened the cartoons and found 2025:CHC-AS:1112 5 lubricating oil inside the cartoons. It is said by this witness that there were 39 cartoons of different companies and each cartoons contained five litre of lubricating oil and on interrogation this appellant admitted before the police officer that he would go to Bhagawangola to sell the lubricating oil in different shops. This witness further said that on demand by the police this appellant failed to produce any licence or cash memo or permit for carrying and possessing the said lubricating oil. This PW1 said that the police officer seized the oil under a seizure list in his presence and he put his signature thereon.
9. PW2, Aminul Islam another witness to the seizure stated in the same line of PW1 and said that there were 39 cartoons containing five litres in each cartoons of different companies and the police officer opened the seal and found lubricating oil inside the said cartoons. Same as PW1, this PW2 being another independent witness said that this appellant told the police officer that he would sell the oil to different shops at Bhagawangola and the accused could not produce any licence or permit for carrying and possessing the said oil. This PW2 said that the police officer seized the oil under the seizure list in his presence and in presence of other witnesses. This PW2 identified his signature on the seizure list which is marked as exhibit 1/2 in this case. So, these witnesses being PW1 and PW2 in their evidences supported the contentions of the written complaint that this appellant was carrying 39 cartoons containing lubricating oil illegally to sell it at Bhagawangola Bazar and the appellant failed to produce any document for carrying the said lubricating oil in his rickshaw van. These 2025:CHC-AS:1112 6 two witnesses proved the factum of seizure of the police and identified their signatures as witnesses to it. There is nothing in this cross- examination for which the testimonies of these two witnesses can be discarded.
10. PW3, Pallav Bhattacharjee, S.I. of Police stated that he lodged the written complaint and after completion of investigation submitted charge-sheet. This PW3 stated that on the relevant point of time when the alleged incident happened he had been to Malibasa, under P.S. Bhagawangola at 16.05 hrs. and seized cartoons containing lubricating oil from the possession of this appellant when this appellant was carrying the said cartoons with intention to sell the same at Bhagawangola Bazar. This witness stated that he seized 39 tins in total containing 195 litres packed in six cartoons from the rickshaw van of this appellant. This PW3 said that on interrogation this appellant failed to produce any licence/permit/cash memo for carrying and possessing the said lubricating oil and thereafter, he seized the materials under preparation of seizure list and in presence of PW1 and PW2. The said seizure list is marked as exhibit 1/3 in this case. The evidences of PWs 1 and 2 have been corroborated by this witness. It is said by this witness that the appellant failed to produce any valid document for carrying the lubricating oil.
11. So, after scanning of the evidences of PW1 and PW2 who are the independent witnesses to the seizure and PW3 it has come out that the lubricating oil was recovered from the custody of this appellant and he failed to produce any documents before the seizing officer. On cross-
2025:CHC-AS:1112 7 examination of these witnesses by the defence nothing has been elicited for which the story of the prosecution can be disbelieved. In the instant case, PWs 1, 2 and 3 clearly stated that the lubricating oil was recovered from the conscious possession of the appellant when he was carrying the same in his rickshaw and was proceeding towards Bhagawangola for the purpose of selling of it.
12. The provision of Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967 is quoted in the impugned judgment by the Trial Court. I am reiterating the said provision for the purpose of better understanding of the same. The said provision entails that - "no person shall carry on business as a Distributor, Agent or Retailer except under in accordance with the terms and conditions of a valid licence granted under sub- paragraph (1) of paragraph 6 of this order".
13. At the time of examination of this accused under Section 313 of Cr.P.C. he did not disclose that at the relevant point of time he had with all the relevant documents for carrying the lubricating oil in his rickshaw. No witness was cited on behalf of this appellant to prove that he had valid permit to carry the said materials. This appellant also failed to discharge his onus either by examining witnesses or by producing documents that he had lawful authority to carry the lubricating oils.
14. The learned Special Judge after considering the oral as well as documentary evidences convicted the appellant. The appellant was carrying lubricating oil in his rickshaw contravening the provision of Para 3 of the Lubricating Oil Licensing Order, 1967 and failed to produce any 2025:CHC-AS:1112 8 scrap of document of possessing/carrying the same from one place to another. Having heard the learned Advocates for the parties, I do not find any ground to interfere with the judgment passed by the learned Trial Court. Such, the order of conviction passed by the learned Trial Court dated 16.06.1999 is found to be justified.
15. At the time of conclusion of hearing both the parties to the case candidly submitted that the present appellant is aged about more than 70 years and the incident took place in the year 1993 and the present appellant has no criminal antecedent and as such, this appellant may be dealt with leniently.
16. It is profitable to quote the observation of the Hon'ble Apex Court in the case of Tarak Nath Keshari -vs- State of West Bengal1 wherein Hon'ble Apex Court held as follows:
"10. However, still we find that a case is made out for grant of benefit of probation to the appellant for the reason that the offence was committed more than 37 years back and it was not pointed out at the time of hearing that the appellant was involved in any other offence. Before all the courts below, the appellant remained on bail. Criminal Appeal No. 1444 of 2023 While entertaining his appeal, even this Court had granted him exemption from surrendering. Section 4 of the Probation of Offenders Act, 1958 has a non obstante clause. The same is extracted below:
1 2023 SCC OnLine SC 605 2025:CHC-AS:1112 9 "4. Power of court to release certain offenders on probation of good conduct.--(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
2025:CHC-AS:1112 10 (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab & Ors."
17. It has been observed by the Hon'ble Apex Court in the case of Dhurukumar & Ors. -vs- State of Maharashtra2 wherein Hon'ble Apex Court held, inter alia at paragraph 2 as follows:
"2. Having heard learned counsel for the parties, we do not find any ground to interfere with the judgment of the High 2 (2017) 9 SCC 411 2025:CHC-AS:1112 11 Court. At this stage, learned counsel for the appellants submitted that the appellants are the first offenders. Therefore, the appellants may be dealt with under Section 360 of the Code of Criminal Procedure, 1908 (sic 1973). It is true that the appellants do not have antecedents of offender. Both of them are the first offenders. Having regard to the facts and circumstances of the case, we are of the view that the appellants should have been dealt with under Section 360 Cr.P.C. The ends of justice would be met by granting the benefit of Probation of Offenders Act, 1958 to the appellants.
We order accordingly. Hence, the appeal is allowed in part and while upholding the conviction and sentence of fine awarded to the appellants, sentence of imprisonment awarded against them is set aside and the trial court is directed to deal with them under the provisions of Section 360 of the Code of Criminal Procedure, 1908 (sic 1973)."
18. I have given due consideration to the submissions put forth before me, as also the documents on record. I have also taken note of the social background of the appellant, the gravity and impact of the offence and the fact that he is a first offender with no criminal antecedents. The conduct of the appellant who remained on bail during the course of trial and post the trial is also noted. After his conviction, he was enlarged on bail but he made no attempts to flee. The learned Advocate for the State has not placed any evidence before this court that the present appellant 2025:CHC-AS:1112 12 convict is a recidivist. There were no adverse reports against him from any quarter post the conviction. Perusal of the Learned Trial Court records also reveals no such antecedents. In view of the observations as cited above I am of the opinion that the appellant convict is entitled to benefit of probation and can be released on probation since the incident related to in the year 1993. The appellant to be taken into custody to serve out the sentence would not be expedient in the interest of justice after lapse of 32 years.
19. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond of Rs. 5000/- (Rupees Five Thousand) with two sureties to the satisfaction of the learned Chief Judicial Magistrate, Murshidabad. He has to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, and shall not repeat the offence. Should he fail to maintain the peace or not be of good behaviour or repeat the offence, he shall serve out the sentence imposed by the Learned Trial Court.
20. The Appellant is released from his bail bonds.
21. Accordingly, the Criminal Appeal being CRA 290 of 1999 stands disposed of.
22. Hence, the appeal is allowed in part upholding the conviction and sentence awarded to the appellant.
23. Copy of this Judgment also be remitted to the Learned Trial Court for information and compliance along with its records.
2025:CHC-AS:1112 13
24. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.
(Prasenjit Biswas, J.)