Calcutta High Court (Appellete Side)
Chandra Kumar Das & Anr vs The State Of West Bengal on 1 March, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revision Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 459 of 1987
CHANDRA KUMAR DAS & ANR.
Vs.
THE STATE OF WEST BENGAL
Amicus Curiae : Ms. Meenal Sinha. Advocate
For the Respondent : Mr. Amartya Ghosh, Advocate
Heard on : March 01, 2016
Judgement on : March 01, 2016
Joymalya Bagchi, J. :
Judgement and order dated 01.10.1986 passed by learned Judge, Special Court(Essential Commodities Act) Nadia, Krishnanagar in E.C. Case No. 11/86 arising out of Nakashipara P.S. Case No. 27 dated 30.05.1986 convicting the appellants for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violating of different government orders namely para 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977 (hereinafter referred to as the Order 1977) and para 3(1)(5) of the West Bengal Motor Spirit & High Speed Diesel Oil (Licensing, Control & Maintenance of Supplies) Order, 1980 (hereinafter referred to as the Order of 1980) and sentencing them to rigorous imprisonment for one year and to pay a fine of Rs.1000/- each, in default to suffer further rigorous imprisonment for six months more respectively.
The prosecution case as alleged against the appellants is to the effect that on 30.05.1986 between 11 AM to 2.00 PM the de facto complainant (PW1) being the inspector of police, C.E.B. West Bengal along with other officers 2 held a raid at the shop-cum-godown of M/s. Chandan Das, a Kerosene oil dealer and M/s. Bhairab Chandra Das, a dealer of H.S.D. oil. Although the firms had separate licences they operated from the same pucca room as their place of business at Gachha Bazar. During inspection, it was found that stock-cum-price board was not maintained properly. The stock book and the sale register were not found written up-to-date. Physical verification of the kerosene oil and the H.S.D. oil was made by the raiding officers. Physical verification said a variation of both kerosene oil and H.S.D. oil from entries in stock registers. As appellant no. 2 M/s. Bhairab Chandra Das, was absent, appellant no. 1 was arrested from the place of occurrence and the stock-cum-price board and stock register and the sale register and the cash memo book were seized and an F.I.R. was registered. In conclusion of investigation, charge sheet was filed under Section 7(i)(a)(ii) of the E.C. Act, for violation of the para 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977 and para 3(1)(5) of the West Bengal Motor Spirit and High Speed Diesel Oil (Licensing control and maintenance of supplies) Order, 1980.
Substance of accusation was read over to the appellants who pleaded not guilty and claimed to be tried.
Prosecution examined as many as seven witnesses.
The defence of the appellants were appellant no. 1 was one of innocence and false implication. He submitted that up-to-date entries were made in the stock register and the prosecution case was false. It was specifically argued by appellant no. 2 that he was absent from the shop and his business relating to High Speed Diesel oil was closed on the day of raid.
In conclusion of trial, the Trial Court by the impugned judgement and order convicted and sentenced the appellants, as above.
Coming to the prosecution evidence I find that PW1 is the de facto complainant of the case. He stated that raid was conducted on 30.05.1986 between 11 hours and 14 hours. The appellant no. 1 Chandan Das was called upon to produce books of account and stock registers. It was found that the stock-cum-rate board was not maintained in terms of the order of 1977. The 3 stock register was also not made up-to-date. On physical verification, it was found that there was a short fall of kerosene oil. Similarly, it was found that the Stock-cum-board of the firm of appellant no. 2 was also not maintained and the stock register was not maintained up to date. Upon physical verification excess of high-speed diesel was detected.
P.W. 1 arrested appellant no. 1 and seized the commodities and the relevant registers from the shop room and prepared a seizure list. He exhibited the true copies of the stock-cum-rate boards in the shop as Exbt. 1 and 2. He also exhibited the seizure list (Exbt. 3) and the relevant registers. Upon conclusion of investigation charge-sheet was filed. In cross-examination he admitted that there was no customer at the time of inspection. He further stated that he did not take the help of measuring of can for measuring oil and there was no evidence to show that there was transaction of kerosene oil just before the inspection.
P.W. 2, P.W. 3 are members of the raiding party and have supported the evidence of P.W. 1. P.W. 4 is a hostile witness who stated that both the brothers dealt with their businesses separately. He however admitted that accused Chandan Das was present at the time of opening the shop. P.W. 5 drew up the formal FIR in the instant case. P.W. 6 is an independent witness who was called upon by the raiding officer to join the raid. He signed on the notice issued to Chandan Das as well in the seizure list and the stock registers. He further stated that he could not say if Chandan Das was looking after both the business at the relevant time. However, later on he claimed Chandan Das was also dealing in HSD oil on behalf of his brother Bhairab. He however could not produce any cash memo as to purchase high speed diesel oil from the said shop. P.W. 7 is the investigating officer who is also a member of the raiding party who investigated the case.
Learned Trial Judge upon analysis of evidence, came to a finding that as the stock-cum-rate boards in the shops were blank. Hence, there was a violation of the aforesaid control orders and convicted the appellants accordingly. The trial Judge, however, recorded in his judgment as the entries in the stock registers 4 could not be proved the alleged shortfall/excess kerosene oil or HSD oil was not proved.
Ms. Meenal Sinha, learned amicus curiae submitted that the evidence on record does not prove the case beyond reasonable doubt. The raids were conducted in respect of two separate businesses yet a single FIR was registered. Separate cases ought to have been registered. Registration of one case had prejudiced the appellants in their defence. She further drew my notice to the fact that there is no convincing evidence that appellant no. 1 Chandan Das was running the business for his brother Bhairab. Admittedly Bhairab was not present when the raid took place. She further submitted that there is no evidence on record that Chandan was carrying on business when the raid took place as there was no customer present at the shop at the material point of time. Although search and seizure commenced at 11a.m. it is the evidence of P.W. 6 that he was summoned for the raid at 10.30a.m. The evidence of P.W. 6 is liable to be discarded as he is a pocket witness.
Mr. Amartya Ghose, learned counsel appearing for the State submitted that there was ample evidence on record to show that the raid was conducted at a time when the shop was open. Hence, non-displaying of stock-cum-rate boards at a conspicuous place in the shop room violated the control orders and the conviction rightly recorded.
I have gone through the evidence on record. I find that the raid had been conducted between 11a.m. to 2.00p.m. on a working day. No evidence has been led by appellant no. 1 Chandan Das to show that his shop was closed on that day. On the other hand it is the evidence of P.W. 4 who is the hostile witness that Chandan Das was present at the shop at the time of its opening. Hence, it is difficult to accept the submission of learned amicus curiae that the shop had not been opened by Chandan Das for carrying on business at the time of commission of raid. The evidence of prosecution witnesses clearly show that there was no stock-cum-rate board displayed in the shop room at that time. No explanation is also forthcoming on behalf of the appellant Chandan Das on that score. 5 Accordingly, I am constrained to hold that the prosecution has been able to prove its case of violation of 3(2) of order 1977 so far as Chandan Das is concerned.
The other issue which has been strenuously argued on behalf of the appellants is that they suffered prejudice by the joint prosecution in a single FIR although raid was held in respect of separate businesses. It is true that the appellants had separate licenses and were running separate businesses. However, they were carrying on such business in the same shop on separate licenses and raid was conducted in the said shop room in respect of their businesses simultaneously. If two offences are committed in course of same transaction, accused persons may be tried of such offences in a single trial under the Code.
I find that the appellants were aware of the charges levelled against them respectively and it is evident from the manner of cross-examination as well as from the questions put to them under Section 313 Cr.P.C. that the appellants were conscious that they were answering separate charges for violation of the different control orders governing their respective businesses and did not suffer any prejudice in any manner whatsoever in prepaying their defence.
Accordingly, I do not find any illegality in registering a single first information report and conducting of a joint trial in the instant case.
However, coming to the case of appellant no. 2 Bhairab Chandra Das, I find that it is an admitted position that Bhairab Chandra Das was not present at the place of occurrence when the raid was took place. It has been sought to be contended on behalf of the prosecution that Chandan being the brother of Bhairab Chandra Das was conducting the business on his behalf. No cogent evidence has come on record to establish such fact. In fact P.W. 4 has stated both the brothers were carrying on business separately although from the said shop. Prosecution relied on evidence of P.W. 6 to bring him such contention. The evidence of P.W. 6 is highly unreliable and contradictory on that score. P.W. 6 initially stated that he was not aware as to whether Chandan Das conducted business on behalf of Bhairab Chandra Das. Subsequently, the said witness claimed that Chandan Das was carrying on business on behalf of Bhairab. P.W. 6 6 was also unable to probabilise such contention as he failed to produce any cash memo showing purchase of HSD oil from Chandan Das in the instant case.
In view of such evidence on record, I am reluctant to accept the prosecution case that the business of appellant no. 2 was being conduced by Chandan Das on the date and time when the raid was held in the said shop room by P.W. 1. On the other hand, it appears appellant no. 2 was absent and his business was closed at the time of raid. Hence, the question of violation of para 3(1)(5) of Order of 1980 by non-display of stock-cum-rate board in the shop in respect of business of appellant no.2 does not arise as his business appears to be closed at the time of raid. Accordingly, I am inclined to set aside the conviction and sentence of the appellant no. 2 and he is acquitted of the charges levelled against him. Appellant no. 1 is convicted by the offence punishable under Section 71A (ii) of the Essential Commodities Act for violation of the offence under para 3(2) of the order of 1977.
With regard to sentence, I find that the incident occurred four decades ago and the appellant no. 1 has no criminal antecedents. However, in view of the fact that conviction is under an economic offence, I am unable to extend the benefits of the Probation of Offenders Act to the appellant no. 1.
Under such circumstances, the sentence of appellant no. 1 is reduced to six months rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for 15 days more.
The bail bond of appellant no. 1 is cancelled and he is directed to surrender before the trial court forthwith to serve out the sentence.
Period of detention undergone by the appellant no. 1 during investigation, enquiry and trial and during the pendency of the appeal shall be set off from the substantive sentence of imprisonment under Section 428 Cr.P.C. The bail bonds of appellant no. 2 shall continue for six months in view of Section 437A Cr.P.C. and thereafter shall stand discharged.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and execution of the sentence.
The appeal is accordingly disposed of.
7I record my appreciation for the assistance rendered by Ms. Sinha, learned amicus curiae in disposing of the appeal.
(Joymalya Bagchi, J.) SB/Aloke Item no. 415