Calcutta High Court (Appellete Side)
Jamiruddin Sarkar vs The State Of West Bengal on 3 May, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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In The High Court at Calcutta
Criminal Appellate Jurisdiction
Present :
The Hon'ble Justice Joymalya Bagchi
C. R. A. 510 of 1990
Jamiruddin Sarkar
Vs.
The State of West Bengal
Mr. Anirban Dutta ....Amicus Curiae.
Mr. Pawan Kumar Gupta ...for the State.
Heard on: May 03, 2016.
Judgment on: May 03, 2016.
The appeal is directed against the judgment and order dated November 24, 1990 passed
by the learned Judge, Special Court, Malda in a Special Court Case No. 17 of 1989, 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 para.3(2) of the West Bengal Declaration of
Stores and Price Essential Commodities Order, 1977 and under Section 8 of the West Bengal
Anti- Profiteering Act, 1958 and sentencing the appellant to suffer rigorous imprisonment for
three months and to pay a fine of Rs.500/- in default one month further rigorous imprisonment
for each court, both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect that on the basis of
the source information, S.I. B.C. Das, the then D.E.O. Sadar Malda, held a raid in shop-cum-
godown of the appellant at about 11 a.m. on 13.1.89 at village Katikanda, P.S. Gazole, Malda.
On seeing the police the appellant fled away from the shop. In presence of the local people they
searched the shop and found rice weighing 1.66 quintals, two bags of wheat weighing 70 K.g.,
one bag of sugar weighing 90 k.g. two big barrels of kerosene oil containing 400 litres. and 17
bags of wheat weighing 17 quintals of 30 k.gs. A stock cum rate board was found in the shop
and written up to 7.1.89 and no opening stock was written therein. As the appellant as owner of
the shop had violated provisions of various Control Orders and Section 6 of West Bengal Anti-
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Profiteering Act, 1958. The aforesaid commodities along with the stock cum rate board were
seized and F.I.R. was registered.
In the course of investigation, the Investing Officer went to the shop of one T.P. Saha,
M.R. Distributor of Gazole, and seized the relevant purchase orders and cash memo books in
respect of wheat and rice concerning the appellant. He also went to the shop of kerosene oil
agent, Ramchandra Saha and seized the cash memo, showing delivery of 400 litres of kerosene
oil to the appellant. He seized one cash memo book from T.P. Saha in respect of sugar
concerning the appellant. He also seized the kerosene licence book, rice and paddy licence book
from the office of Sub-Divisional Controller, Food Supplies, Malda.
In conclusion of investigation, charge-sheet was filed in the instant case. Substance of
accusations for commission of offence punishable under Section 7(1)(a)(ii) of the Essential
Commodities Act, 1955 (Act of 1955) for violation of para 18 of the West Bengal Rice and Paddy
(Licensing and Control) Order (Order of 1967) and para.3(2) of the West Bengal Declaration of
Stores and Price Essential Commodities Order, 1977 (Order of 1977) and para.12 of the West
Bengal Kerosene Oil Control Order, 1968 (Order of 1968) as well as Section 6(2) read with
Section 8 of the West Bengal Anti- Profiteering Act, 1958 were read over to the appellant and
the appellant pleaded not guilty and claimed to be tried.
His defence was to the effect that he had gone to perform "Namaz" at the time of raid
and after his return he heard about the incident. He further deposed that his books of account
and stock cum rate board were all correct and in order.
In the course of trial prosecution examined as many as 10 witnesses. The defence
examined 3 witnesses to probabilise his defence. In conclusion of trial, the trial court convicted
the appellant and sentenced, as aforesaid.
Mr. Dutta, learned Amicus Curiae submitted that stock register relating to wheat, sugar
and rice were exhibited during trial as Ext. A,B and C. D.W. 1, Sub-Inspector of Food and
Supplies Department, Government of West Bengal proved his signature on the said registers.
Accordingly, it cannot be said that stock of essential commodities were not maintained in the
shop. P.W.7 deposed that stock cum rate board of the shop was written up to 13.1.89.
Therefore, there was no violation of the control order of 1977. It was further argued referring
to the deposition of D.W. 3, the Prodhan of the Gram Panchayat, that 20 quintals 50 k.g. of
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wheat was kept with the appellant under N.R.E.P. Scheme and after distribution remainder
quantity of 15 quintals 30 k.g. of wheat was kept in the custody of the appellant. Accordingly,
he prayed for acquittal of the appellant.
On the other hand, Mr. Gupta, learned advocate for the State submitted that there was
no stock register maintained in respect of 400 litres of kerosene purchased by the appellant.
Stock cum rate board was written up to 7.1.89 and there is clear violation of the Control Order
of 1977. Even if the evidence of D.W. 3 is believed it was incumbent upon the appellant to
make separate entry in the stock register with regard to the wheat received by him from D.W. 2
under the aforesaid scheme. Failure to do so amounted to contravention of the relevant Control
Order. He accordingly prayed for dismissal of the appeal.
P.W.1 is the member of the raiding party. He stated that on 13.1.89 a raid was
conducted at the M.R. shop of the appellant with two police personnel and the appellant was
present at the shop at the material point of time. However, upon seeing the police personnel he
fled away. No books of account and papers were found. A stock cum rate board was displayed in
the shop but it was written upto 7.1.89. No stock was written only rates were mentioned. The
quantity of wheat, rice, sugar, kerosene oil were found in the shop and seized under a seizure
list. Copy of the stock cum rate board was prepared (Ext.2) and he signed on the same
(Ext.2/1). F.I.R. was registered at Gazole Police Station.
P.W. 2, is a member of the raiding party who corroborated the evidence of P.W.1. P.W.3
is another member of the raiding party was tendered for cross-examination. P.W.4 is an
employee of M.R. Distributor, Parameswar Pd. Saha at Gazole. He stated that on 7.6.89 police
officer visited the shop and seized cash memos in the name of the appellant under a seizure
list. He signed on it (Ext.3/1). The signature of Parameswar Saha was marked as (Ext.3/2). The
signature of Ashit Pd. also marked as (Ext.3/3).
P.W.5 was tendered for cross-examination. P.W.6, Kalipada Saha stated that he was
present in the shop of M.R. Distributor, Parameswar Pd. Saha at Gazole on 12.4.89 when D.E.B.
Officer came and seized allotment orders and cash memo books under a seizure list. He proved
his signature (Ext.4/1) and signature of Parameswar Saha (Ext.4/2). P.W. 7 is a neighbour of the
appellant. He was present in the shop of the appellant when police officer raided his shop. He
signed on the seizure list under which the stock of the shop was seized (Ext.1/4). He stated that
copy of the stock cum rate board was prepared in his presence and he signed on it (Ext.2/4). He
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did not find any books of account or papers in the shop. In cross-examination he stated that the
accused was not in the shop. The shop of the accused was closed before the officers entered.
The stock cum rate board was up to 13.1.89.
P.W. 8 was also tendered for cross-examination. P.W. 9 is a member of raiding party. He
stated that upon source information, he along with officers had raided the shop of the appellant
and seeing them the appellant fled away. They searched the shop in presence of the witnesses.
No cash memo book was found. Stock cum rate board was not correctly written. Stock of M.R.
commodities such as wheat, rice, sugar and kerosene oil were found and seized under seizure
list (Ext.1) himself. The witness identified the seized stock and price board of the shop (Ext.
Mat.1). Copy of the stock cum rate board was prepared and he signed thereon (Ext.2/5). Seized
articles were given in jimba. He lodged F.I.R. (Ext.6). Formal F.I.R. was drawn up by the Officer
in charge of Gazole Police Station (Ext.7).
P.W. 10, is the Investigating Officer in the instant case. In the course of investigation he
had gone to the shop of T.P. Saha, and seized two allotment orders and two cash memo books
one in respect of wheat and another in respect of rice under a seizure list (Ext.4). He also
seized two cash memo books (Ext. 1 and 2) and relevant cash memos (Ext.1/1 and 2/1). The
two allotment orders (Ext.10 and 11) were also seized. On 12.4.89 he went to the shop of
Ramchandra Saha, Kerosene oil agent and seized one cash memo book showing delivery of 400
litres of kerosene oil to the appellant. The cash memo book was marked (Ext. Mat. III) and the
relevant entry was marked (Ext. Mat. III/1). Seizure list in that regard was exhibited (Ext.10).
On 7.6.89 he seized one cash memo book in respect of sugar from the M.R. distributor, T.P.
Saha under a seizure list (Ext.3). The seized cash memo book marked (Ext. Mat. IV) and the
relevant cash memo marked (Ext. Mat. IV/1). On 14.6.99 from the office of the Sub-Divisional
Controller, Malda he seized kerosene licence book and one rice paddy licence book under a
seizure list (Ext.11).
D.W. 1 was the Sub-Inspector of Food & Supplies at Malda and he has proved his
signatures on the stock registers (Ext. A/1,A/2 and A/3), relating to the M.R. shop of the
appellant. In cross-examination he stated that he last visited the M.R. shop of the appellant on
18.6.88. D.W. 2 was the son of the appellant. He has proved stock registers (Ext. A,B and C) with regard to wheat, sugar and rice respectively. He has also proved stock register of kerosene oil (Ext.D) upon recall. In cross-examination it was stated that (Ext.D) does not bear any signature of the appellant.
5D.W. 3 was the Prodhan of the gram Panchayat. He stated that 20 quintals 50 K.G. of wheat under N.R.E.P. scheme was kept with the appellant as a dealer. On the basis of token granted by the Panchayat the dealer distributes the wheat. After distribution a stock of 15 quintals 30 K.G. of wheat remained with the dealer at the time of seizure. He got back the wheat from the Collector, Malda. He brought the allotment order and the order of distribution (Ext. E and F).
From the evidence on record, it appears that on 13.1.89 a raid was conducted in the shop cum godown of the M.R. dealer. According to the prosecution witnesses, the M.R. dealer fled away from the shop at the time of raid. However, it is the defence of the dealer that he had left the shop to perform "Namaz". Be that as it may, the shop was open at the material point of time and stock cum rate board which was seized from the shop appears to be written up to 7.1.89. Stock of M.R. commodities were not mentioned only rate was mentioned. P.W. 7 in his cross-examination had made an effort to probabilise that the stock cum rate board was written up to 13.1.89 but such effort of P.W.7 is patently absurd. P.W. 1 had exhibited a true copy of the stock cum rate board as Ext.2. A perusal of the Ext.2 shows that such board was in fact written up to 7.1.89.
In view of production of such contemporaneous true copy of the stock cum rate board, I am unable to accept the contention of the appellant that stock cum rate board was written up to 13.1.89 and accordingly the violation of para.3(2) of Order of 1977 is clearly established. That apart, even if the evidence of D.W.2 is accepted and Ext. A,B, and C are deemed to be stock registers kept in the ordinary course of business in respect of wheat, sugar and rice, there is no evidence on record that stock register was maintained in respect of kerosene oil inasmuch as Ext.D is unauthenticated even at the time when it was produced before the court.
There is also no valid entry in the stock register with regard to 400 litres of kerosene oil which had been purchased by the appellant as proved by cash memo which was exhibited by P.W.10. Coming to the failure of the appellant to maintain records in respect of wheat, which was kept in his custody under N.R.E.P. Scheme. I am unable to accept the defense contention that no separate records were required to be maintained in that regard. Evidence of D.W. 3 makes it clear that wheat in the aforesaid scheme had been kept with the custody of the appellant as a dealer. Under such circumstances, it was his duty to maintain records of such quantity of wheat so entrusted to him under the scheme under a separate head in the stock 6 register. This is significantly absent in the stock register produced during trial. Hence violation of Section 6(2) read with Section 8 West Bengal Anti-Profiteering Act, 1958 is also made out.
In view of the aforesaid discussion, the conviction and sentence recorded against the appellant are upheld. The appeal is dismissed.
Bail bond of the appellant is cancelled and he is directed to surrender before the trial court forthwith and serve out the sentence in accordance with law.
The detention suffered by the appellant during investigation, enquiring trial and during pendency of the appeal shall be set off in terms of Section 428 Cr.P.C.
Let the lower court record along with the copy of the judgement be sent down to the trial court for necessary compliance and execution of the sentence in accordance with law forthwith.
I record my appreciation for the able assistance rendered by Mr. Gupta as Amicus Curiae in disposing of the appeal.
Let photostat certified copy of this order be given to the parties, if applied for, on urgent basis upon compliance of all formalities.
ss. (Joymalya Bagchi, J.)