Calcutta High Court (Appellete Side)
Md. Nizamuddin & Anr vs The State Of West Bengal on 29 November, 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. No. 100 of 1989
Md. Nizamuddin & Anr.
Versus
The State of West Bengal
Amicus Curiae : Mr. Anjan Datta.
For the State : Mr. S. Dutta.
Heard on : 29th November, 2016
Judgement on : 29th November, 2016
Joymalya Bagchi, J.:
Nobody appears for the appellants. Mr. Anjan Datta, learned Advocate is requested to appear as Amicus Curiae. Mr. S. Dutta, learned Advocate who ordinarily appears for the State is requested to appear on behalf of the State.
The appeal is directed against the judgement and order dated 18.03.1989 passed by the learned Judge, Special Court, Essential Commodities Act, Alipore, 2 24-Paraganas in Special Case No. 5 (10) of 1986 convicting the appellant for commission of offence punishable under Section 7(1) (a)(ii) of the Essential Commodities Act, 1955 for violating of paragraph 4 of the West Bengal Kerosene Control Order, 1968, (hereinafter referred to the Order of 1968) and sentencing them to suffer rigorous imprisonment for three months and to pay a fine of Rs.100/- each, in default to suffer rigorous imprisonment for 15 days.
The prosecution case, as alleged, against the appellants is to the effect that on 6.10.1986, the complainant S.I. T. Ghosh being accompanied by other police officers committed a raid in the grocery shop of appellant no.2, Md. Hannan at 1/E, Ibrahim Road within Police Station Ekbalpur and found his father, appellant no.1 Md. Nizamuddin carrying on business in the said shop. The appellant no.2 was not found at the time of raid. The appellant no.1 failed to produce any licence to deal in kerosene oil or any permit for possession of the quantity of kerosene oil, which was found in the shop. The entire kerosene oil amounting to 35 litres along with containers and the measuring pots and one funnel were seized and the appellant no.2 was arrested. First Information Report was registered over the incident. Upon investigation, charge sheet was filed. Substance of accusation was read over to the appellants who pleaded not guilty and claimed to be tried. During trial, prosecution examined as many as six witnesses. The specific defence of the appellants were that the oil was seized from the adjoining room and belonged to their neighbours. In support of their defence, the appellants examined as D.W.1. In conclusion of trial, the appellants were convicted and sentenced, as aforesaid.
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Mr. Anjan Datta, learned Amicus Curiae submitted that the trial court failed to consider the defence evidence probabilising the fact that the oil belonged to other persons. There was nothing to show that the appellants were carrying on business in kerosene oil and accordingly, the conviction is liable to be set aside.
Mr. S. Dutta, learned Advocate appearing for the State submitted that there is evidence on record that the appellants were carrying on business in kerosene oil, which was seized from the shop. The evidence of D.W.1 lacks credibility and was rightly rejected by the trial court. He prayed for dismissal of the appeal.
P.W.1, Tarakeswar Ghosh, P.W.2, N. Biswas, P.W.5, B. Chakraborty and P.W.6, S. I., S. K. Dutta were members of the raiding party. The raid was conducted on 6.10.1986 under the leadership of P.W.6, S. K. Dutta. The said witness deposed that at the time of raid, appellant no.2 was found in the shop. Kerosene oil was sold from the shop. No licence could be produced for dealing in 35 litres of kerosene oil in two containers, viz., one tin and one plastic jar, which were seized along with measuring pots. The seizure list was marked as Ext.2. The appellant no.2 was arrested and taken to the police station. General Diary over the incident was lodged by P.W.1, Tarakeswar Ghosh, marked as Ext.3. He also filled up the formal F.I.R., Ext.4. P.W.6 took up investigation of the case and filed charge sheet in the instant case. The seized kerosene oil were sold under the order of the Collector and the sale proceeds were deposited in the Reserve Bank. The other witnesses have corroborated the evidence of P.W.6. 4
The independent witnesses of seizure are P.Ws.3 and 4. They have identified their signatures on the seizure list. P.W.3, in his cross-examination, however, stated that the kerosene oil was in front of the shop but he could not state wherefrom the kerosene oil was brought.
P.W.4 in his cross-examination stated that the kerosene oil was seized from an attached room where the masons resided.
D.W.1 claimed that he resided in the shop room along with the appellants and that the kerosene oil belonged to all of them.
In cross-examination, he stated that he did not have a ration card and he is originally from Gaya District of Bihar.
From the evidence on record, it appears that there was seizure of 35 litres of kerosene oil by the raiding party at the time of raid. A defence was sought to be set up that such seizure was not from the shop room of the appellants but from an adjoining room, which was in the collective possession of various persons. D.W.1 was examined to probabilise such evidence. Not a chit of paper was, however, exhibited to probabilises such version of D.W.1 of joint possession of kerosene oil seized from the room of the appellants. On the other hand, the consistent evidence of the police witnesses is to the effect that the appellant no.2 was carrying on business from the grocery shop wherefrom 35 litres of kerosene oil was seized. Admittedly, there was no permit/licence standing in the name of the appellants to carry on the trade in kerosene oil. Measuring pot and other utensils were also seized probabilising the prosecution version that the appellants were engaged in trading in kerosene oil.
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From the evidence on record, it can, therefore, be safely concluded that the prosecution has been able to prove that the appellants were dealing in kerosene oil without permit and, therefore, were rightly convicted for contravention of paragraph 4 of the Order of 1968. Conviction and sentence of the appellants are accordingly upheld.
The bail bond executed by the appellants stand cancelled. The appellants are directed to surrender before the trial court forthwith and to serve the sentence and pay the fine, as aforesaid, failing which the trial court shall take appropriate steps for execution of sentence and realisation of fine, if any, in accordance with law.
The period of detention, if any, undergone by the appellants during the period of investigation, inquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
I record my appreciation for the able assistance rendered by Mr. Anjan Datta, Amicus Curiae in disposing of this appeal.
The appeal is accordingly dismissed.
Let a copy of this judgement along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) 6 as