Calcutta High Court (Appellete Side)
Pravat Kumar Mandal & Two Others vs The State Of West Bengal on 26 August, 2014
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 76/ 86
Pravat Kumar Mandal & two others
...Appellants
Versus
The State of West Bengal
... Respondent
For the Appellants : Mr. Sarjati Dutta
Mr. Antarikhya Basu
For the State : Mr.Ranadeb Sengupta
Heard on : August 19, 2014.
Judgment on : August 26, 2014
Shib Sadhan Sadhu, J.
1) The instant appeal is directed against the judgment and order of conviction dated 05.02.1986 passed by the Learned Judge, Special Court, E.C. Act, Nadia, Krishnanagar in E.C.Case No.23 of 1985 (T.R. No.28 of 1985) whereby and whereunder he was pleased to convict the appellants under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentenced them to undergo Rigorous Imprisonment for 2 years each and to pay a fine of Rs.5,000/- each, and in default to suffer further Rigorous Imprisonment for 2 years each.
2) A brief resume of the prosecution case emerging from the F.I.R. is that on 03.07.1985 from 14.00 hours to 19.30 hours the de-facto complainant Atal Kanti Ghosh, Inspector of Police attached to E.B., West Bengal,being accompanied by other Officers and force inspected the office cum godown of the M.R. Distributor M/S. Das and Mandal Company at premises No.13, Panchanantala Lane, Barabazar, P.S. Santipur, District: Nadia in presence of local witnesses and found the accused Jitendranath Mandal was operating the business in the aforesaid firm. The said Inspector disclosed his identity and demanded production of licence and the relevant registers, cash memo books etc. Accordingly, the accused Jitendranath Mandal produced those documents. The Inspector checked the registers and found that the Stock Register was written up to 30.06.85. He also verified the cash memo, book. On physical weighment discrepancy was found. The cash memo book was found to have no mention of the N.B.S.F. rice sold from 18.04.85 till that date. Shortage of huge quantity of rice was found but the accused could not furnish any satisfactory explanation. He however, produced one 'Dag Khata' which contained entries of rice sold to different dealers but no cash memo was issued in their names. Daily Sale Register was found bearing entries up to 26.06.85. The stock cum rate board also showed discrepancy in the weight of the commodities. For such discrepancies the accused Jitendranath Mandal was arrested and the commodities and the registers and other documents were seized and were left in the jimma of the witness Keshab Mallick under proper Jimmanama. Thereafter, they returned to Police Station and the said Inspector lodged a written complaint on the basis of which Santipur P.S. Case No.1 dated 03.07.85 under Section 7(1)(a)(ii) of the E.C. Act was registered. That case was investigated into and after completion of investigation charge sheet was submitted under Section 7(1)(a)(ii) of the E.C.Act against the accused/appellants.
3) Thereafter, the case was placed for trial before the Learned Judge, Special Court (E.C.Act) Nadia, Krishnanagar who examined the accused persons under Section 251 of the Code of Criminal Procedure and after conclusion of trial, held the appellants guilty and convicted them as aforesaid.
4) Prosecution examined 12 witnesses in order to prove the accusation brought against the appellants. The documents admitted into evidence on behalf of the prosecution e.g. weighment chart; seizure list; extract copy of the stock cum rate board; Jimmanama; written statement (F.I.R.); signatures of P.W.1 on the body of the Stock Register, Sale Register and Cash Memoes; signature of P.W.1 on the body of the licences; signature of P.W.1 on the body of the allotment register and the formal F.I.R. have been marked Exts.1 to 10 respectively and the signatures of the witnesses appearing on those documents were marked accordingly.
On the other hand, the appellants examined 3 witnesses in support of their defence. Also they adduced documentary evidence e.g. cash memo dated 02.07.85; agreement for sale of Mushurdal (whole) date 25.06.85.; Certificate of posting and carbon copy of application dated 28.06.85 addressed to the Special Additional Controller (Food and Supply) intimating about the closure of the business on 01.07.85 and 02.07.85 and those were marked Ext.A, B, C, and D respectively.
5. Mr. Sarjati Dutta, Learned Counsel appearing for the appellants has advanced the following arguments while impugning the judment under Appeal :
i) The persons who helped in the weighment of the commodities are not the signatories to the weighment chart nor they have been examined as witnesses. P.W.7 Keshab Chanandra Mallick, who is the only independent witness and the witness to seizure clearly stated that all the seized commodities were not weighed and after weighment of some goods an average was made. Further P.W.2, S.I. of Police Pradyut Banerjee, who was a member of the Inspecting Team, stated that the weighment was made from 2 p.m. to 7.15 p.m. but the weighment was not even completed. Thus, admittedly the prosecution story centering discrepancy between the commodities found and recorded in the registers becomes highly doubtful and therefore, it cannot form the basis for conviction.
ii) P.W.12, S.I. Ganapati Mukherjee, the Investigating Officer visited the P.O. shop on the following date i.e. on 04.07.85 along with a copy of the seizure list but he did not check the goods as per the seizure list. Also he did not make any weighment at that time. Therefore, the investigation was conducted in a casual and perfunctory manner and thereby the genuineness of the prosecution story is put at stake.
iii) The stock cum rate board, a vital piece of evidence which was though seized under a seizure list but the same was not produced or exhibited by the prosecution. As such adverse presumption under Section 114(g) of the Indian Evidence Act, 1872 can be drawn against the prosecution that the prosecution has willfully withheld it, as it would not have supported their case.
iv) There is no evidence adduced by the prosecution that the appellants were in charge of the business of the firm when the offence was committed or that they were responsible to the firm for the day to day business and were in actual management thereof. Therefore, in absence of any such evidence, the conviction of the appellants could not be sustained.
He, therefore, emphatically contended that the prosecution has miserably failed to bring home the accusation brought against the appellants and thus the conviction cannot be sustained and they are entitled to an order of acquittal by setting aside the impugned judgment and order.
6. Mr. Randeb Sengupta, Learned Counsel for the State on the other hand wholeheartedly supported the impugned judgment and order of conviction. According to him, the contentions raised by his Learned adversary lose significance in view of the fact that there is no denial that the prosecution witnesses led by P.W.1 visited the shop of the appellants and found discrepancies in the stock of Essential Commodities and registers etc. in presence of accused and witnesses who have testified before the Court. Therefore, the appellants cannot escape for the offence committed by them and the learned Trial Court has rightly convicted them under Section 7(1)(a)(ii) of the Essential Commodities Act and passed the appropriate sentence, which should be maintained. Mr.Sengupta finally insisted upon dismissal of the appeal.
7. I have gone through the impugned judgment and the entire record and proceedings in the context of the rival submissions made by the learned Counsels for the parties. I have also meticulously scrutinized the evidence adduced by the prosecution and the defence - both oral as well as documentary.
8. The contention raised by the learned counsel for the appellants regarding absence of evidence adduced by the prosecution that the appellants were in charge of the business of the firm when the offence was committed rests on the text of Section 10 of the Essential Commodities Act, 1955. This section provides:
"10. Offences by companies.- (1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:-
Provided that nothing, contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1) when an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, Secretary or other officer of the company, such director, manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
Explanation.-For the purposes of this section:-
(a) "Company" means any body corporate, and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.
In the case of Sham Sundar and Others V. State of Haryana reported in AIR 1989, Supreme Court, 1982: 1989 Cr.L.J. 2201, the Hon'ble Supreme Court held - " the penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub- section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted.
9. Examining the evidence of the prosecution, I find that P.W.1, Inspector of E.B., Atal Kanti Ghosh has deposed that he found accused Jiten Mandal was operating the business on behalf of M/S Das and Mandal, M.R. Distributor. He has further stated that the accused Jiten Mandal and the partners of M/S Das and Mandal Co. violated the provision of Part 18 (1) of W.B. Rice and Paddy (Licensing Control Order), 1976 and condition of licence of the said Control Order and Part 3 (ii) of W.B. Declaration of Stock and Prices of Essential Commodities Orders, 1977 and that M/S Das and Mandal Co. were also wholesalers of pulses having valid licence. In cross-examination he denied the suggestion that the accused Jiten Mandal was the employee in the shop of the accused. In his written complaint (Ext.6), P.W.1 stated that he checked the office cum godown of M.R. Distributor M/S Das and Mandal Co. The rest of his statement both in Ext.6 and in evidence relates to the shortage of N.B.S.F Rice, Musurdal (split), Musurdal (whole), Arahardal (whole) and it does not indicate that other partners were also conducting the business during the relevant time. P.W.1 has seized the relevant documents like Trade Licence, Stock Register, Daily Sale Register, Cash Memo Books, scale and measuring instruments and the commodities. These documents do not establish that all the partners were doing the business of the firm. There is no other evidence on record on this score. The statement of P.W.12 who investigated the case also does not advance the cause of the prosecution any further. Therefore, it cannot be held that when the alleged offence was committed all the partners were conducting the business of the firm.
10. Looking into the evidence on the point of search and seizure it is seen that P.W.1 has stated that he thereafter made the weighment of stock with the help of local labourers Sitaram Roy and others. But his companion P.W.2 Pradyut Banerjee could not say clearly whether the weighment was made excluding the bag. According to him, the rice was weighed along with bag and that the weighment was made from 2 p.m. to 7.15 p.m. when the weighment was not even completed. Yet further the sole independent witness of seizure P.W.7 Keshab Chandra Mallick made it clear that all the seized commodities were not weighed and that after weighment of some of the goods an average was made in respect of the weight of the remaining commodities. Thus from these accounts of P.W.2 and P.W.7, it becomes clearly established that no actual or physical weighment or measurement of the commodities was made and it was a guess work. That being so the genuineness of the prosecution case receives a fatal blow.
11. Admittedly, the rate and stock board was seized but that has not been produced or exhibited by the prosecution. So the allegation of violation of the provision of the West Bengal Declaration of Essential Commodities Order, 1977 remains unsubstantiated. It is surprising to note that the Learned Trial Court has made such observations in the impugned judgment and held that what was actually written in the rate and stock board cannot be verified by the Court and as such the accused persons cannot be stated to have violated the provisions of the West Bengal Declaration of Essential Commodities Order, 1977, but still held the appellants guilty. Be that as it may the non-production of the seized rate-cum-stock-board being coupled with the factum of non-weighment of the commodities makes the prosecution case vulnerable.
12. In his written complaint (Ext.6), P.W.1 has stated that they checked the office cum godown of the appellants. That being so the appellants were under no obligation to display any list in their godown. Therefore, in that view of the matter, the allegation of violation of the provisions of Para 3(2) of West Bengal Declaration of Stock and Price of Essential Commodities Order, 1977 cannot be maintained.
13) After visualising the prosecution evidence on record on anvil of law of appreciation of evidence and cardinal principle of criminal jurisprudence, I am unable to concur with the judgment of conviction passed by the Learned Trial Court on the strength of fabricated story and on tainted investigation. As such I allow this appeal and set aside the conviction and sentence of the appellants and acquit them of all the charges. They shall be discharged from their bail bonds and be set at liberty forthwith.
14) Let the Lower Court Records be sent down to the Court below at once along with a copy of this judgment.
15) Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)