Calcutta High Court (Appellete Side)
Arun Chandra Debnath vs State Of West Bengal on 9 September, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 336 of 1989
Arun Chandra Debnath
Vs.
State of West Bengal
Amicus curiae : Mr. Dipanjan Datta
For the State : Mr. Subir Banerjee, Ld.A.P.P.
Heard on : 05.09.2014
Judgement on : 09.09.2014
Joymalya Bagchi, J.: The appeal is directed against the judgement and
order dated 28th July, 1989 passed by the learned Judge, Special Court, E.C. Act,
Murshidabad convicting the appellant for commission of offence punishable
under section 7(1)(a)(ii) of the Essential Commodities Act for violating paragraph
12 of the West Bengal Kerosene Oil Control Order, 1968 and paragraph 3(2) of
the West Bengal Declaration of Stock and Price of Essential Commodities Order,
1977 and sentencing him to suffer rigorous imprisonment for four months.
The prosecution case, as alleged, against the appellant is that on 12.02.1988
between 13.15 hours to 17.00 hours one Nirmalendu Sarkar, de facto
complainant, (PW1) inspected the kerosene oil shop of the appellant at
Hatinagar, P.S. Berhampore. At that time the appellant was distributing kerosene
oil amongst the cardholders. P.W. 1 disclosed his identity and called upon the
appellant to produce the stock book and cash memo book. The appellant
produced the same and on scrutiny of cash memo book it was found that the
appellant had distributed 18 ½ liters of kerosene oil amongst the cardholders.
His opening stock of kerosene oil in the book was 350 liters on 12.02.1988. After
the sale as aforesaid, there ought to have been a stock of 331½ liters of kerosene
oil in the shop. However, on physical verification it was found there was an
actual stock of 399 liters of kerosene oil. Hence, an excess of 67 ½ liters was
detected in the stock. The appellant was unable to give satisfactory explanation
for such excess amount of kerosene oil. It was also alleged that he did not display
stock‐cum‐rate board in front of his business. P.W. 1 seized the kerosene oil
under a seizure list in the present of witnesses. Stock register and cash memo
book were also seized and the appellant was arrested.
First information report was registered at Berhampore police station being
Berhampore P.S. Case No. E.C. 4 of 1988 dated 12.02.1988 under section 7(1)(a)(II)
of the Essential Commodities Act 1955 (hereinafter referred to as The Act of
1955).
In conclusion of investigation, charge sheet was filed against the appellant
under section 7(1)(a)(II) of the Essential Commodities Act. Plea was recorded
under section 251 Cr.P. C. and the appellant pleaded 'not guilty' and claimed to
be tried.
The prosecution examined three witnesses. Appellant examined one
defence witness to probabilise his defence.
In conclusion of trial, the Trial Court by the impugned judgment and
order convicted and sentenced the appellant, as aforesaid.
P.W.1 is the de facto complainant of the case. He conducted the raid on
12.02.1988between 13.15 hours to 17.00 hours at the shop of the appellant between 13.15 hours. He deposed that in the course of raid he found an excess stock of 67 ½ liters of kerosene oil. He stated that stock cum rate board was also not exhibited in the shop. He seized the cash memo register and other documents. He arrested the appellant and lodged first information report. He proved the first information report as well as seizure list. In cross‐examination, he stated that he had measured 399 liters of kerosene oil. He used 1 liter and 1‐ 1/2 liters can for measurement. He emptied kerosene oil barrels before measurement.
P.W. 2 is a seizure list witness. He had signed the seizure list and proved his signature. He however stated that he did not see the police officer measuring kerosene oil or checking papers. He further stated that the appellant had displayed the stock‐cum‐rate board.
P.W. 3 is another seizure list witness who has proved his signature on the seizure list. He stated that P.W. 1 did not go through the stock register, sale register and cash memo. He stated that P.W.1 did not measure the kerosene oil in the shop. He also stated that the appellant had displayed stock‐cum‐ rate board.
The appellant examined one Ajit Karmakar as D.W.1 who was a cardholder and used to drew kerosene oil form the shop of the appellant. He deposed that he was present at the shop at the time of raid. He stated that the appellant had displayed stock‐cum‐rate board. He did not find any empty barrel or can. He did not see the police officer measuring kerosene oil. In cross‐ examination, he stated that he did not get kerosene oil on that day.
Mr. Dutta, amicus curiae submitted that the evidence of P.W. 1 at variance with the first information report. He further submitted that evidence on record does not prove that there was actual measurement of kerosene oil in the shop. It is also the evidence of the independent witnesses that the stock-cum‐rate board was on display in the shop. He prayed for acquittal of the appellant.
Mr. Banerjee, learned Additional Public Prosecutor submitted that P.W. 1 has proved prosecution case. There is no reason to disbelieve the said witness. He prayed for dismissal of the appeal.
I have considered the evidence on record. I find that the evidence of P.W. 1 with regard to measurement of kerosene oil in the shop has not been supported by independent witnesses namely P.W. 2 and 3 who have signed the seizure list and were present during raid. Such witnesses have deposed that stock‐cum‐ rate board was displayed in the shop.
In view of such dichotomy in the evidence of prosecution witnesses, I am of the opinion that it would be inappropriate to uphold the conviction of the appellant. I further find that attending facts and circumstances in the instant case do not support the version of P.W. 1. It is the evidence of P.W. 1 that the kerosene oil was emptied from barrels at the time of actual measurement. No empty barrels have been seized form the place of occurrence. It is also doubtful as to whether 399 liters of kerosene oil could have been measured by P.W. 1 using alone a 1 liter and 1 ½ liter can respectively. These circumstances improbabilise the version of actual measurement of 399 liters of kerosene oil, as claimed by P.W. 1 and probabilises the evidence of P.W. 2 and 3 that no measurement took place in the shop. It is also the evidence of P.W. 2 and 3 that the stock‐cum‐rate board had been displayed in the shop of the appellant at the relevant time.
Learned Judge has sought to justify prosecution case on the ground that the actual measurement of kerosene oil could have been done by measuring dimensions of the barrels in which they were kept.
It is nobody's case that measurement of kerosene oil was done in such manner particulars of the dimensions of such barrels have also not been adduced in evidence. It is trite law that the Court cannot make out a third case (unsupported by the prosecution) to convict an accused.
For the aforesaid reasons, I set aside the judgement and order of conviction and sentence. The appellant is acquitted of the accusation levelled against him.
The appellant shall be discharged from his bail bonds after six month, from date in terms of section 437 A Cr. P.C, 1973.
I record my appreciation for the able assistance extended by Mr. Datta as amicus curiae for disposal of the appeal.
Copy of the judgement along with lower court records be sent down at once.
(Joymalya Bagchi, J.) P.A. to J. Bagchi, J