Calcutta High Court (Appellete Side)
Rabindra Nath Biswas vs The State Of West Bengal on 17 May, 2016
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. 391 of 1984
RABINDRA NATH BISWAS
Vs.
THE STATE OF WEST BENGAL
Amicus Curiae : Ms. Trina Mitra, Advocate
For the State : Mr. Pawan Kumar Gupta, Advocate
Heard on : May 17, 2016
Judgement on : May 17, 2016
Joymalya Bagchi, J. :
No one appears on behalf of either of the parties when the matter is called on.
Ms. Trina Mitra, learned Advocate, is requested to appear in this matter as amicus curiae and assist this Court.
Mr. Pawan Kr. Gupta, learned Advocate, who ordinarily appears on behalf of the State, is present in Court and is requested to appear in this matter. 2
The appeal is directed against judgement and order dated 13.11.1984 passed by learned Judge, Special Court under E. C. Act, Nadia in E. C. Case No. 8 of 1984 (T.R. No.15 of 1984) convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of the provisions of West Bengal Motor Spirit and High Speed Diesel Oil (Licensing, Control and Maintenance of Supplies) Order, 1980 (hereinafter referred to as the Order of 1980) and sentencing him to suffer rigorous imprisonment for three months and to pay a fine of Rs.500/-, in default to suffer further rigorous imprisonment for one month more.
The prosecution case, as alleged against the appellant, is to the effect that on 24.1.1984 at about 1.05 P.M. S. C. Chowdhury, Inspector of Police attached to D.E.B., Nadia accompanied by H. K. Bose, S.I. of Police and other police constables visited the shop of the appellant situated at Bajitpur under Karimpur Police Station and found that the appellant was running his business of high speed diesel oil in an illegal manner. A couple of customers were present in the shop when the police arrived there. A stock-cum-price board was displayed showing stock position of diesel oil to be 14073 litres in the shop. The stock register was tallied with the entry made in the stock-cum-rate board. On physical verification 69 complete barrels each containing 200 litres of oil were found in the shop, besides 16½ litres kept in a partly used barrel. No cash memo showing sale of any diesel on 24.1.84 was noticed. Two sheets of paper containing alleged rough accounts of sale were also found in the shop. Accordingly, the police officer 3 seized the entire quantity of oil along with the documents and/or papers. The appellant was arrested. Written complaint was lodged at Karimpur Police Station. In conclusion of investigation, charge sheet was filed and cognisance was taken.
Substance of accusation was read over and explained to the appellant who pleaded not guilty and claimed to be tried. The plea of the appellant was one of innocence and false implication.
It was the specific defence of the appellant that he had sold 255 litres of diesel oil on 24.1.1984 on credit and credit memos had been issued. This fact was not noted by the Police Officer, which ended in a quarrel and the criminal case was falsely registered against him.
In the course of trial, prosecution examined as many as 6 witnesses. The defence examined 3 witnesses in order to probabilise the aforesaid defence. In conclusion of trial, the trial court disbelieved the defence of the appellant and held the appellant guilty of the alleged offence and sentenced him, as aforesaid.
Ms. Mitra, learned Advocate appearing as amicus curiae submitted that the appellant had led evidence that diesel oil have been sold on 24.1.1984 on credit. It is immaterial whether payment was made or not as the sale was on credit and accounted for the discrepancy in oil.
4
She further submitted that the evidence of prosecution witnesses showed that there were customers in the shop and rough accounts maintained in the shop probabilising the sale on credit by the appellant on that day. She, accordingly, prayed that the conviction of the appellant be set aside.
On the other hand, Mr. Gupta, learned Government Advocate appearing for the State submitted that the evidence of the defence witnesses was improbabilized by the contemporaneous entries made in the credit memo book (Ext. B) which showed that money had already been paid in respect of such transaction although the defence witnesses deposed to the contrary. Such discrepancy remained unexplained and, therefore, the learned Judge rightly disbelieved the defence of the appellant.
That apart, the credit memo book was belatedly produced after four months at the time of trial. He prayed for dismissal of the appeal accordingly.
I have considered the materials on record. P.W.1 is the leader of the raiding party and the defacto-complainant in the instant case. He deposed that on 24.1.84 he along with H. K. Bose, S.I. of Police and other police constables went to the shop of the appellant at around 1.00 P.M. on receiving secret information that the appellant was illegally dealing in diesel in the locality. On reaching there he found that the appellant was selling diesel while some 5 customers were present at the shop. In the stock-cum-price board the opening balance of diesel was shown as 14073 litres. On scrutiny of stock register he found similar quantity of diesel. He scrutinized cash book memo and did not find any cash memo being issued on that day. The appellant produced two sheets of papers which were seized and marked X and X/1 for identification. On physical verification, 69 completely filled up barrels each containing 200 litres of diesel oil and one loose barrel containing 16½ litres of diesel oil was found. The latter was measured with the help of measuring pots. The total quantity as per physical verification was found to be 13816½ litres. He seized the stock-cum- price list, stock register, cash book, token for licence and the entire quantity of diesel oil under a seizure list (Ext. 1). Witnesses signed the seizure list. He identified the stock-cum-price board (Mat. Ext.I). He identified the stock register, cash memo book and token for licence. Seized oil was given in jimma. The appellant was arrested and written complaint was lodged at police station (Ext.
4).
In cross-examination he stated that he did not see the accused actually selling diesel to any person. He was in the shop for two and half hours for the purpose of inspection.
P.W. 2 is a member of the raiding party. He stated that there was discrepancy between the physical stock and the records maintained by the 6 appellant. He signed on the seizure list (exbt.1/2), register (exbt. 2/4) and on the cash memo book (exbt. 2/5). Two sheets of paper were also seized. He signed on the sheet of paper (exbt. 2/6). He also signed on the token for licence (exbt. 2/7).
P.W. 3 is a seizure list witness and signed on the seized documents. He, however, declared hostile. In cross-examination by defence he stated that persons like Ajit Kumar Biswas, Upendra Nath Biswas, both teachers are residents near the shop of the appellant. He found that there was altercation between the police officers and the appellant.
P.W. 4 is another witness who was present at the time when the police officers inspected the shop of the appellant. He deposed that he weighed the diesel oil being asked by the appellant. There was 69 barrels of diesel oil each containing 200 litres and 16½ litres in another barrel. The appellant used to grant cash memos to purchasers. He was declared hostile. In cross-examination he stated that certain quantity of oil is lost in the process of selling the same as handling loss. Two types of cash memos are maintained by the appellant one for cash sale and the other for credit sale.
P.W. 5 is another seizure list witnesses. He proved his signature on the on the cash memo book and register. He was also declared hostile. 7
P.W. 6 is the investigating officer in the instant case. He was present at the time of raid. He has corroborated the evidence of P.Ws. 1 and 2. In conclusion of investigation he submitted charge-sheet.
D.Ws. 1, 2 and 3 are the defence witnesses.
D.W. 1 stated that on 24.01.1984 he purchased 15 litres of diesel from the appellant on credit. He exhibited the yellow coloured memo (exbt. A/1). In cross- examination he stated that he did not receive any red coloured cash memo for the sale dated 24.01.1984 as cash payment for such sale had not been made.
D.W. 2 deposed that on that day he purchased 40 litres of diesel oil on credit. He proved the yellow coloured memo (exbt. A/2). In cross-examination he also deposed that cash had not been paid in respect of the said purchase.
D.W. 3 is another witness who claimed to purchase 200 litres of diesel oil on credit (exbt. A/3). He also deposed that cash payment has not been made.
From the evidence on record, it is, therefore, clear that at the time of inspection stock-cum-rate board showed an opening balance of 1403 litres of diesel oil. However, on physical verification 13816½ litres of diesel oil was found. This is also not disputed by the appellant.
8
On the other hand, the appellant has sought to explain this discrepancy by claiming that there was sale of the aforesaid amount of diesel oil on credit to D.Ws. 1, 2 and 3. These witnesses exhibited credits memos A/1, A/2 and A/3. Such evidence would otherwise have been sufficient to explain away the discrepancy, but for the fact that in the instant case there is a discordant note. The evidence of the defence witnesses is to the effect that they had purchased the diesel oil on credit and the cash in respect of such purchases had not made to the appellant. In course of trial the appellant produced the credit memo book (exbt. B) wherein although the aforesaid credit transactions are noted but there is a stamp "paid" in respect of such transactions. Accordingly, the defence version is a divided house. While the contention of the defence witnesses is to the effect that there was no cash payment in respect of the aforesaid credit sales, the purported entries in the credit memo book (Ext. B) portrays reconciliation of such credit sales by cash payment. Moreover, the credit memo book was not produced at the time of inspection. It is the contention of the appellant that the police officers refused to take note of the credit memo book. If that were so the appellant would have promptly produced the credit memo book before the superior authority or the court itself. The credit memo book was belatedly produced after four months after incident and that too at the time of trial. The entries in the credit memo book are also inconsistent with the version of the defence witnesses with regard to such credit sale eroding the genuineness of such claim.
9
For the aforesaid reasons, the defence version of the appellant appears to be improbable and was rightly rejected by the trial court.
I do not find any merit in the appeal. Accordingly, the appeal stands dismissed.
The bailbond of the appellant is cancelled and he is directed to surrender forthwith before the trial court and serve out the sentence in accordance with law.
The period of detention suffered by appellant during investigation, enquiry or trial shall be set off from substantive sentences in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and for execution of the sentence, as aforesaid.
I record my appreciation for the able assistance rendered by Ms. Mitra as amicus curiae for disposing of the appeal.
(Joymalya Bagchi, J.) AB/Aloke Item no. 325 10