Calcutta High Court (Appellete Side)
Gour Chandra Pal vs The State Of West Bengal on 30 August, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 242 of 1987
Gour Chandra Pal
Versus
The State of West Bengal
For the appellant : Ms. Ujjaini Chatterjee
For the State : Mr. Pawan Kumar Gupta
Heard on : 30th August, 2016
Judgement on : 30th August, 2016
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 10.09.1986 passed by the learned Judge, Special Court, Essential Commodities Act, Hooghly, in E.C. Case No. 149 of 1985 convicting the appellant for commission of offence punishable under Section 7(1) (a)(ii) of the Essential Commodities Act, 1955 for contravention of the 2 paragraph 3(2) of the West Bengal Declaration of Stocks and Price of Essential Commodities Order, 1977 (hereinafter referred to the Order of 1977) and sentencing him to suffer rigorous imprisonment for 6 months and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for one month more.
Prosecution case, as alleged, against the appellant is to the effect that on 12.08.1985 at about 8.45 a.m. an officer of the District Enforcement Branch, Hooghly, visited and inspected the coal shop of the appellant when his brother Shyamal Pal was present in the shop and attending customers. From the said coal shop 12,000 kgs. of soft coal was found. On demand, brother of the appellant failed to show any stock-cum-price board in the coal shop. From the stock register it appears that the opening stock for the said day was shown as 11,400kgs. whereas a quantity of 12,000 kgs. was found in the shop. The sale register and cash memo had not reflected any sale of coal on that same day. In view of such discrepancy, 600 kgs. of coal were seized and Balagarh Police Station Case No. 3 dated 12th August, 1985 under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of the paragraph 3(2) of the order of 1977 was registered for investigation. In conclusion of the investigation, charge-sheet was filed in the instant case. Substance of accusation was read over to the appellant who pleaded not guilty and claimed to be tried. During trial prosecution examined five witnesses. The defence of the appellant was one of innocence and false 3 implication. In conclusion of trial the learned Trial Court by judgement and order dated 10.09.1986 convicted the appellant and sentenced him, as aforesaid.
Ms. Chatterjee, learned Counsel appearing for the appellant submits that prosecution has failed to prove its case beyond reasonable doubt. No weighment chart was made and, therefore, discrepancy between the actual stock and stock register cannot be said to have been established beyond doubt. Learned Counsel further submits that no public witness was examined and, therefore, the learned Trial Court ought not to have come to a finding of guilt on the mere ipse dixit of the official witnesses who were members of the raiding party.
Mr. Gupta, learned Counsel appearing for the State submits that the prosecution witnesses were consistent and clearly established that there was violation of paragraph 3(2) of the Order of 1977 as no stock- cum-rate board was found in the said shop.
I have perused the evidence on record. P.W. 4 was the leader of the raiding party and de facto complainant in the instant case. He stated that he along with W/C Satya Narayan Ta (PW 1) and W/C Kanailal Ghosh (P.W. 2) went to the shop of the appellant. Appellant was not present at the shop. Brother of the appellant was present as salesman in the shop. He produced coal licence in the name of the appellant. Daily stock register of coal was written up to 12.08.1985 showing stock of coal 11,400 kgs. The salesman produced sale register written up to 4 11.08.1985, cash memo book issued up to 11.08.1985. But he failed to produce any stock and price board in the coal shop. During checking and physical verification P.W. 4 found 12,000kgs. of coal in the coal shop. He seized stock of coal along with weighing scale, weights, two iron belchas, stock register, sale register, cash memo book and coal licence in the presence of the witnesses after preparing seizure list duly attested by the witness and the salesman. He proved the seizure list written and signed by him marked ext.1/2. The seized articles were given in zimma of Samir Pal after obtaining proper zimmanama written in his own hand and marked as ext. 2. Cash memo book as well as sale register marked as Mat ext. II. Stock register written up to 12.08.1985 bearing signature of himself and all witnesses including Samir Pal were exhibited by him as Mat ext. III. He proved the written document signed by him marked as ext. 3. In cross-examination, he stated that he did not prepare any weighment chart. He weighed the coal with the help of seized weights. He did not see any sale after 11.08.1985. P.W. 1 and P.W. 2 were members of the raiding party and have corroborated with the evidence of P.W. 4, as aforesaid. P.W. 3 is the police officer attached to Balagarh Police Station. He stated that he received written complaint and drew up the formal F.I.R. marked as ext. 2. He also received seizure list and zimmanama along with written complaint. P.W.5 is the investigating officer of the case who submitted the charge-sheet. 5
From the evidence on record it is clear that an inspection was held in the premises of the appellant. Stock register was found to be written on 12.08.1985 and reflected a stock of 11,400kgs. of coal. Cash memo book and sale register did not reflect any transaction on the day of inspection i.e. 12.08.1985. However, on physical verification the quantity of coal was found to be 12,000 kgs. i.e. 600 kgs. in excess.
It has been argued that weighment chart was not prepared and therefore discrepancy cannot be said to have been established.
I find that the oral evidence of the witnesses corroborated with each other with regard to the weighment made in respect of the seized coal. Hence, I am unable to accept the contention that as weighment chart was not prepared in the instant case the consistent evidence of prosecution witness as to discrepancy in stock of coal is to be disbelieved. It appears that violation of paragraph 3(2) of the Order of 1977 was not restricted to discrepancy between the actual stock of coal and the stock register itself. There is incontrovertible evidence on record that although the shop was open, stock-cum-rate board had not been found in the said shop room. That by itself constitutes violation of the aforesaid Control Order and, therefore, I am of the considered opinion that conviction of the appellant was correctly recorded in the facts of the instant case.
Coming to the issue of sentence I find that this incident was happened three decades ago and the appellant had no criminal 6 antecedent. Under such circumstances, I reduce the sentence imposed upon the appellant and direct him to suffer rigorous imprisonment for 3 months and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for 15 days more. The appellant is directed to forthwith surrender before the learned Trial Court and undergo the sentence in accordance with law. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against substantial sentence imposed on him.
With this aforesaid direction, the criminal appeal is disposed of. Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) sdas