Calcutta High Court (Appellete Side)
Khagendra Nath Das Ukil vs State Of West Bengal on 4 August, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. No.141 of 1987
KHAGENDRA NATH DAS UKIL
. . .APPELLANT
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant : Mr. Himangshu De
Mr. Navanil De
Mr. Mritunjoy Chatterjee
Mr. Joydeep Dutta
For the State/ : Mrs. Anasuya Sinha
Respondent
Heard on : 1st August, 2017
Judgment on : 4th August, 2017
Joymalya Bagchi, J. :
The appeal is directed against the judgment and order dated 25.2.1987 passed by Judge, Special Court (E.C. Act), Midnapore in D.E.B.G.R. No.68 of 1983 convicting the appellant for commission of offence punishable under Section 7(1)(1)(ii) of the Essential Commodities Act, 1955 for violation of the provisions of Paragraph-3(2) of the West Bengal Declaration of Stocks and Prices of the Essential Commodities Order, 1977 (hereinafter referred to as the Order of 1977) and sentencing him to suffer rigorous imprisonment for four months and to pay fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for one month.
Prosecution case, as alleged, against the appellant is that on 9.10.1983 between 2.00 p.m. and 3.00 p.m. S.I. A.K. Chatterjee (P.W.1), Inspector or Police, D.E.B., Midnapore along with others inspected the shop and godown of the appellant named and styled as 'Guru Stores' situated at Plot No.36 in Mouza- Hamirpur under P.S.-Debra, in presence of witnesses as well as the appellant himself. One rapeseed oil tin of 15.5. kg., bearing STC mark and other items including stock rate board were seized during inspection and verification of physical stock with the stock described in the stock-cum-rate board disclosed the following discrepancies:-
(1) 294 kg. shortage in refined rapeseed oil; (2) 690 kg. excess in mustard oil; (3) 105 kg. excess in sugar; (4) 720 kg. shortage of gram dal; (5) 490 kg.
excess in moong dal; (6) 950 kg. excess in masoor dal; and (7) 1110 kg. shortage in matar dal.
The appellant was unable to explain the aforesaid discrepancies and appeared to have violated the provisions of Paragraph-3(2) of the Order of 1977 and Paragraph-12(c) of West Bengal Pulses Edible Oil Seeds and Edible Oil (Dealers' Licensing) Order, 1978 (hereinafter referred to as the Order of 1978). It was further alleged that one tin of sealed STC (GMFC) of 15 kg. was found from the shop of the appellant who was unable to produce any cash or credit memo of purchase of STC marked refined rapeseed oil which is only supplied to ration card dealers, hence, the appellant was also alleged to have violated the provisions of Paragraph-12(b) and 13(1)((b) of the Order of 1978. It was also alleged that 23.84 quintals in 149 tins of mustard oil, 67.60 quintals of pulses of different varieties were seized from two separate godowns situated at Belichak Station Bazar, which were not endorsed in the wholesale licence of the appellant. On such accusations, First Information Report was registered at Debra police station being Debra P.S. Case No.10 dated 9.10.1983 under Section 7(1)(1)(ii) of the Essential Commodities Act and in conclusion of investigation, charge-sheet was filed against the appellant for commission of offence punishable under Section 7(1)(1)(ii) of the Essential Commodities Act, 1955, for violation of the provisions of Paragraph-3(2) of the Order of 1977 and Paragraph-12(b), 12(c) and 13(1)(b) of the Order of 1978. The substance of accusation was read out to the appellant who pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined seven witnesses and exhibited number of documents. The appellant, however, did not examine any witness to probabilise his defence. In conclusion of trial, the trial Court by judgment and order dated 25.2.1987 held the appellant guilty for commission of offence punishable under Section 7(1)(1)(ii) of the Essential Commodities Act, 1955 for violation of the provisions of Paragraph-3(2) of the Order of 1977. However, the appellant was found not guilty for violation of Paragraph-12(b), 12(c) and 13(1)(b) of the Order of 1978, as there was no embargo in procuring STC marked refined rapeseed oil at the time of inspection and no evidence was adduced that he had stored the seized articles in two separate godowns.
Mr. De, senior counsel appearing for the appellant submitted that the evidence on record does not establish the prosecution case beyond reasonable doubt. He further submitted that the inspection was conducted without recording reasonable belief and, therefore, the search and seizure was illegal and the appellant ought not have been convicted on such evidence. He submitted that the inspection had been held on a working day when business was in progress and, therefore, discrepancies between the actual physical stock and the entries in the stock-cum-rate board was due to transactions which had taken place on that day. He accordingly prayed for acquittal of the appellant from the instant case.
P.W.1, A.K. Chatterjee was the leader of the raiding party who conducted raid in the shop of the appellant. He was an Inspector of Police attached to Enforcement Branch, Midnapore on 9.10.1983. On that day between 02.00 P.M. and 03.00 P.M. he along with H.B. Chowdhury, S.I. of Police, Enforcement Branch, and one Constable raided the shop of the appellant situated at plot No.36, Mouja-Hamirpur, Debra Bazar. The appellant was present in his shop when he inspected the same in the presence of Samar Das @ Bablu Das and Trilochan Das who were the local witnesses. He inspected stock register, purchase vouchers, sale bills, cash memos and the stock cum rate board. Upon inspection and verification, discrepancies were found between book figures and actual stock. The following discrepancies were noted between the actual stock and stock board figures:-
1. Refined rapeseed oil as per board stock Reg.369 kg. - actual stock 75 kg.;
2. Mustard oil as per board and stock register-1694 kg. - physical stock 2384 kg.;
3. Sugar as per board and stock register-180kg. - physical stock 285 kg.;
4. Gram dal as per board and stock register-1500 kg. - as per actual stock 285 kg.;
5. Mug dal as per stock register and board 1590 kg. - physical stock 2080kg.;
6. Musur dal as per stock register and board 2350 kg. - physical stock 1400 kg.;
7. Motor dal as per stock register and board 3610 kgs. - physical stock 2500 kg.;
Beside the aforesaid items, he noticed one sealed tin of imported refined rapeseed oil of STC brand of 15.5. kg. and in the unlicensed godown maintained by the appellant he found 23.84 quintals of mustard oil contained in 149 tins and 67.60 quintals of pulses of different varieties. As the accused could not satisfactorily explain the discrepancies in the stock detected by him, he seized the entire stock under a seizure list which was drawn up by S.I. H.B. Chowdhury (Exhibit-1). He put his signature on the seizure list (Exhibit-1/1). He seized the stock register for refined rapeseed oil, mustard oil, sugar, gram dal, moong dal, masoor dal, matar dal as well as the licence of the appellant (Exhibit-1 series). From the place of business he seized two stock-cum-rate boards (Mat. Exhibit- 1/2). Copy of stock-cum-rate board was prepared by the hand of H.B. Chowdhury in the presence of witnesses who signed on it. The articles seized by him from the appellant were kept in the custody of the appellant on zimma. He arrested the appellant and brought him to Debra police station. He filed written complaint with the officer-in-charge which was drawn up by S.I. H.B. Chowdhury under his dictation and signed by him (Exhibit-4). The case was endorsed to S.I. H.B. Chowdhury for investigation. In cross-examination, he stated that in the F.I.R. he noted that he acted on information. He also deposed that the seizure list showed that the seizure was made in office-cum-godown of 'Guru Stores'. He could not give the number of plots pertaining to two other godowns. He took two hours to finish the operation of raid, seizure, etc. The weighment of commodities was effected at his instance and he prepared a note of the weighment of different commodities. That note was taken on a loose sheet of paper but was not made part of the records.
P.W.7, H.B. Chowdhury was posted as sub-inspector, D.E.B., Midnapore at the material point of time. On 19.10.1983, he accompanied P.W.1 and others on the shop-cum-godown of the appellant for inspection. There was discrepancy between the actual physical stock and the stock disclosed in the stock-cum-rate board. There was a sealed tin of rapeseed oil of STC brand. The accused could not give any satisfactory explanation for the discrepancies between his stock book figures and actual physical stock. He further stated although the licence revealed that the appellant was authorized to maintain one godown, he actually maintained two godowns. Copy of the rate-cum-stock board was drawn up by him upon the dictation of P.W.1 (Mat. Exhibit-2). He identified the rate-cum- stock board and seized the same from the shop-cum-godown of the appellant (Mat. Exhibit-1). The seizure list was prepared by him (Exhibit-1) upon the dictation of P.W.1. The seized articles except the tin of rapeseed oil were kept in the custody of the appellant under zimma. He prepared the zimmanama bond on the dictation of P.W.1. The case was endorsed to him for investigation. He examined the witnesses and recorded their statements under section 161 Cr.P.C. He also ascertained from the Sub-divisional Controller, Midnapore that the appellant was authorized under the licence to maintain only one godown. He took sample of the rapeseed oil from the tin at Debra P.S. and sent the same for chemical analysis. He took the sample in presence of witnesses and labelled it. He obtained report of chemical analyst. On conclusion of investigation, he submitted charge-sheet.
P.W.2, Trilochon Das is an independent witness. He deposed that at the time of inspection the appellant carried on business under the trade name of 'Guru Store'. Two-three years back raid was held at the said shop. On that day he found a small gathering in front of the shop of the appellant. He went there and found some police officers, one of whom told him that they were seizing registers of Khagen Babu and asked him to be a seizure witness. Another person, Samar Das who was known to him by name and face signed on it. The witness was declared hostile. In cross-examination, he admitted his signature on the copy of the stock-cum-rate board prepared by the police.
P.W.3, Kalipada Patra was a homeguard who took sample of rapeseed oil from the sealed tin bearing STC mark, which was seized from the place of business of the appellant.
P.W.6, S. Bhowmick was Assistant Chemist under the Directorate Inspection of Quality Control, Government of West Bengal. He received the sample of oil on 2.12.1984 in connection with Debra P.S. Case No.10 of 9.10.1983. The received sample was intact and properly sealed. He examined the sample and opined that the sample contained imported rapeseed oil and was in normal condition. He proved his report (Exhibit-8).
P.W.5, Santimoy Banerjee was an assistant in the office of the Sub- divisional Controller Food and Supplies, Midnapore. He produced the licence register which showed the licence of the appellant was in respect of plot No.36 of Mouja-Hamidpur, P.S.-Debra.
P.W.4, Sandip Kr. Gupta who was a Branch Manager of Essential Commodities Supplies Corporation, Midnapore branch who deposed that STC marked rapeseed oil was supplied to M.R. distributors of edible oil for onward sale to M.R. dealers but the appellant was not an M.R. distributor of edible oil.
As the appellant has been found guilty of violation of Paragraph-3(2) of the Order of 1977, I have restricted my scrutiny of the evidence on record with regard to the said violation alone. [ [[ Paragraph 3(2) of the Order of 1977 reads as follows:-
"3(2). Every wholesaler and every retailer shall display conspicuously at a place as near to the entrance of his place of business as possible a list in Form B indicating the opening stock and the wholesale or retail price, as the case may be of each essential commodity held by him on each day."
The aforesaid provision casts a duty on every wholesaler or retailer to display conspicuously at a place near the entrance of his place of business, a list in the prescribed form indicating the opening stock and the wholesale and retail price of each of the essential commodities held by him. Evidence of P.W.1 and P.W.7 shows that on the day of inspection, that is, on 9.10.1983 there was discrepancy between the actual physical stock and the stock reflected in the stock-cum-rate board display in the said shop and the appellant was unable to explain away such discrepancy. It has been argued that the evidence of the witnesses have not been corroborated by the independent witness, P.W.2 who had been declared hostile. P.W.2, however, admitted his signature on the copy of the stock-cum-rate board (Mat.Exhibit-1) which was produced in the Court. From Mat. Exhibit-1 it appeared that there were substantial discrepancies between the actual physical stock of each of the essential commodities when compared with the stock reflected in said stock-cum-rate board. The trial Judge had noted that the entries in the stock-cum-rate board were not even up-to-date on the date of inspection as the opening stock of commodities on that day was not reflected therein. Hence, the plea of the learned senior counsel that the discrepancies in the stock on the date of inspection were due to trades undertaken in the course of the day does not have find muster. It has also been argued that the search and seizure effected without recording reasonable belief, renders the entire prosecution illegal. I am unable to accept such contention. It has been categorically recorded in the F.I.R. that that upon information received, P.W.1 had proceeded to hold the inspection at the shop of the appellant and had effected seizures therefrom after noticing violation of the aforesaid Control Orders. Hence, it cannot be said that inspection conducted at the place of business was illegal. Moreover, irregularity in search would not render the incriminating evidence collected in the course of such search inadmissible if the accused is unable to demonstrate that he has suffered prejudice due to such illegality which goes to the root of the prosecution case. No such prejudice, caused to the appellant in the course of the search and seizure has been demonstrated in the instant case.
In view of the aforesaid discussion, I am of the opinion that the prosecution has been able to prove his case beyond reasonable doubt.
Conviction of the appellant is thus upheld.
Coming to the issue of sentence, I find that the appellant is an octogenarian and the incident occurred there decades ago. The appellant also does not have any criminal antecedent. Accordingly, the substantive sentence imposed upon him is reduced to the minimum as permissible in law and the appellant is directed to suffer simple imprisonment for three months and to pay of fine Rs.1000/- in default to suffer simple imprisonment for fifteen days more.
The period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
The appeal is accordingly dismissed.
Copy of the judgment along with LCR be sent down to the trial Court at once for necessary compliance and execution of the sentence.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(Joymalya Bagchi, J.) PA to Justice J. Bagchi, J.