Calcutta High Court
Kanailal Das vs State Of W.B. on 30 September, 2003
Equivalent citations: 2004(1)CHN225, 2004CRILJ3231
JUDGMENT Arunabha Barua, J.
1. The instant appeal is made against an order and judgment dated 30.9.88 passed by Sri A. K. Chatterjee, the learned Judge, Special Court (E. C. Act), Midnapore convicting the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing him to R. I. for six months and to pay a fine of Rs. 1,000/-, in default, further S. I. for one month in D.E.B.G.R. Case No. 18 of 1984 arising out of Binpur Police Station Case No. 3 dated 7.7.84 for violation of paras 3 and 12 of Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transaction) Order, 1973.
2. The case of the prosecution, briefly stated, is this. The complainant of this case Sri M.K. Barman, Inspector of Police, D. E. B., Midnapore on 7.7.84 made a complaint, which was treated as F.I.R. to the O. C., Binpur Police Station Dist. Midnapore. Acting on a secret information, the said Inspector along with his staff made a surprise raid on the godown of Kanailal Das, the accused-appellant at 9.00 in the morning and they conducted a search and seizure over there from 9.00 A.M. to 11.00 A.m. During inspection the complainant found one Stock-cum-Rate Board displayed at the place of business. In the Board the names of articles were mentioned. But neither the stock nor the rate of the essential commodities were mentioned in that Board. On a search the complainant and the witnesses found 56 quintals of wheat in 56 bags in that godown. The accused could not produce any licence for dealing in wheat. Further, the complainant found 600 kgs of Musur Pulses, 200 kgs of Khesari Pulses and 345 kgs of Mustard Oil in that godown. On demand the accused could not produce the books of accounts for dealing with those articles. Accordingly, the complainant seized those articles including the wheat and submitted the complaint (F.I.R.) against the accused, Kanailal for having committed offence punishable under Section 7(1)(a)(ii) of the Act 10 of 1955 for violating the provisions of para 3 and para 12 of West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transaction) Order, 1973 and para 3 of West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977.
3. Charge has been submitted against this accused with the allegations that the accused has committed offence punishable under Section 7(1)(a)(ii) of Act 10 of 1955 for violating the provisions of paras 3 and 12 of West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transaction) Order, 1973 and para 3(2) of West Bengal Declaration of Stock and Prices of Essential Commodities Order, 1977 and para 12 of West Bengal Pulses Edible Oil Seeds and Edible Oils Order, 1978.
4. In the trial of the alleged offence part of the evidence of the prosecution witnesses was recorded by Sri K. Majumder, Judge, Special Court, Midnapore on 8.6.88. Most of the evidence, however, was recorded by the then Judge/Special Court, (E. C. Act) Midnapore and way back on 30.9.88, the said Judge, E. C. Court, Sri A. K. Chatterjee delivered the impugned judgment and order. The accused Kanailal Das was convicted under Section 7(1)(a)(ii) of Act 10 of 1955 and was sentenced to S. I. for 6 months and was further sentenced to a fine of Rs. 1,000/-, in default, to further S. I. for one month.
5. Altogether 7 prosecution witnesses and 3 defence witnesses were examined in the case by the prosecution. The prosecution tried to establish its case by oral evidence of witnesses as well as documentary evidence and showed it the accused in his defence by examining defence witnesses as well as some documentary evidence. The learned Judge, Special Court (E. C. Act) on an appreciation of the evidence of both sides relied on the prosecution evidence and disbelieved those adduced by the defence and accordingly, convicted and sentenced the accused person as aforesaid.
6. The said judgment and order passed by the learned Judge, Special Court(E. C. Act) dated 30.9.88 have been assailed in this appeal and it is said by the accused/convict/appellant that there was several infirmities in the prosecution evidence which falsifies the allegations of the prosecution against the accused person, that there was no violation of the provisions of the law the accused have been charged with, that the judgment and order impugned were not in accordance with law and that it was liable to be set aside and the appeal should be allowed.
7. The learned Counsel for the appellant has submitted that according to the prosecution case and evidence the search was conducted while acting on a secret information and that nothing was explained with regard to the nature and sources of that information. Though it was mandatory that there must have been some reason to believe 'before conducting the search' and such reason and source to believe should have been recorded but that was not done and that it cast a doubt on the genuineness of the prosecution case. Further, his material submission goes like this--that paras 3 and 12 of the West Bengal Wheat and Wheat Products Licensing and Control Order, 1973 speaks of an offence relating to storage and sale of wheat; mere storage is not an offence under the provision of law, that the raid was made on the godown of the accused as per the complaint(F. I. R) itself and not on the shop and further that the raid was made fairly early in the morning at 9.00 O'clock when normally no sale of the commodities could start and in fact it did not and more so, from the godown and not from the actual shop of the accused where purchase of the essential commodities takes place, that the stock and price varies everyday and, therefore, when the raid was conducted at 9.00 a.m. onwards, it could hardly be accepted that the stock and price would be written on the Board for that everyday, that this case was started on 7.7.84 and since then 18 years have gone by and the appellant has been suffering since then and in the meantime; the West Bengal Wheat and Wheat Products Licensing and Control Order has been repealed in 1986. It has been further argued by the learned advocate for the appellant that the present appeal arises out of conviction under the Essential Commodities Act, which must go on the basis of summary trial and here in this case the evidence has been partly recorded by one Judge and partly recorded by another who had delivered the judgment and order, that Section 326(3) of the Cr. P.C. excludes all summary trials from the applicability of Section 326(1) of the Code and that, therefore, in case of summary trials the Judge should record the evidence in full and then he himself should deliver the judgment, in case if he ceases to exercise his jurisdiction after recording a part or full of the evidence, the succeeding Magistrate or Judge will have to record the evidence afresh before pronouncing the judgment and that, therefore, in view of this legal position alone the entire trial is vitiated and the appellant is entitled to acquittal. In support of his submission, the learned advocate for the appellant have cited several case-laws as follows, which are of importance in the context of this case.
(1) Shew Pujan Prasad Shaw v. State of West Bengal, 1981(1) CHN 296.
(2) K. L. Subhayya v. State of Karnataka, .
(3) Dilip Pipara v. State of West Bengal, 1977 Cr. L. J. 1663(Cal).
(4) Pyare Lal v. State of Punjab, .
(5) Ramdas Kelu Naik v. V.M. Muddaya, 1978 Cri. LJ 1043.
(6) An unreported judgment of the Calcutta High Court being C. R. A. No. 385 of 1988.
8. It has been argued by the learned Additional Public Prosecutor in arguing the case on behalf of the State has submitted that despite some minor discrepancies in the evidence of prosecution witnesses and despite the fact that a few witnesses have turned hostile, there is no reason to disbelieve the other set of prosecution witnesses and totality of the evidence only point to the guilt of the accused person and contravention of the offence complained of. He contends, therefore, that the learned Trial Judge was fully justified in finding the guilt of the accused for the offence and had rightly awarded the sentence he did. A particular emphasis is laid upon Section 326(3) of the Code of Criminal Procedure. The learned Additional Public Prosecutor has submitted that by the amendment of the E. C. Act provision has been made for the trial of the cases under the E. C. Act in a summary manner or procedure, that the object and reason of the amendment of the Act for which the summary trial was sought to be introduced were to shorten the duration of trial, that this particular legislative intent would be such if Section 326(3) Cr. P. C. is applied or, that if the rigours of Section 326(3) is adopted, the legislative intent, would be defeated and this is not practicable. He further submitted that Section 326(3) Cr. P. C. should not be treated as mandatory and this is not the spirit of true legislative intent that it can never vitiate the trial because the section is declaratory and not mandatory. He further submits that compliance or non-compliance of law shall be judged on the anvil of the consequence of such non-compliance. He questions, how the accused is going to be prejudiced if the proceeding goes on and not remanded. Approach of the Court should be to advance the course of justice by way of speedy disposal. According to him no prejudiced is caused to the accused by continuation of the trial by a succeeding Judge and this point was also never raised by the accused before the Trial Court and it cannot be raised now at this appellate stage.
9. I have carefully gone through the impugned judgment and order of conviction and sentence passed by the learned Judge, Special Court (E. C. Act), Midnapore, dt. 30.9.88. On the fact-situation which the evidence has transpired there are certain serious lapses in the prosecution case which must taint its credibility. In the first place, according to the complaint itself (F.I.R.) the raid by the D.E.B. staff as early as 9 O'clock in the morning and that too in the godown of the accused were the essential commodities are stocked goes to the root of the question of commission of the offence. It is held in the case of Dilip Pipara v. State of West Bengal, 1977 Cri. L.J. 1653, in connection with West Bengal Declaration of Stock and Prices of Essential Commodities Order, 1971 and a charge for the failure to display stock and price that godown is not a shop or show-room and when goods were found there in the godown, failure to display the stock and price is not an offence.
10. But what apparently has seriously affected the trial of the case leading to the recording of evidence and consequent conviction and sentence of the accused person is an unsurmountable legal impediment. In the instant case, evidence has been partly recorded by one Judge and partly by another Judge who has delivered the judgment. There is no dispute in the fact that the cases under the Essential Commodities Act fall under those category of cases which have to be tried in a summary way or, in other words, these are summary triable cases. The present appeal arises out of conviction and sentence under the Essential Commodities Act obviously refers to a summary trial of the case. Section 326(3) of the Code of Criminal Procedure excludes all summary trials from the applicability of that section. In case of summary trials the Judge must record the evidence in full, should deliver the judgment himself and conclude the trial. On this important legal issue, which virtually seals the fate of this appeal. The submission of the learned advocate for the appellant has to be sustained since it looks the whole trial is vitiated by case-laws in precedence. In an unreported judgment of this Court which is cited being C.R.A. No. 385 of 1988 in the case of Suresh Kumar Mittal and Mahabir Prasad Agarwal v. State of West Bengal, almost on the self-same facts as in the instant case, the learned Single Judge of this Court (D. P. Sengupta, J.), observed and found as follows :
As regards the applicability of Section 326(3) of the Code of Criminal Procedure I find sufficient merit in the submissions made by Mr. Roy, learned Advocate of the appellants. Following the decision of the Hon'ble Apex Court in the case of Bhagwari Singh (supra), the decision of Karnataka High Court in the case of Ramdas Kelu Naik (supra) and the decision of Andhra Pradesh High Court in the case of Chandana Surya Rao (supra), I am of the view that in a case under the Essential Commodities Act, which is to be tried as a summary trial, the provision of Section 326(3) Cr. P. C. is very much applicable. The learned Special Judge who tries the case, must pronounce the judgment. Otherwise it amounts to irregularity vitiating the entire trial. If the learned Judge is transferred in the midst of a trial, the succeeding Judge must proceed with the trial afresh and pronounce the judgment.
In view of the discussions made above the appeal is allowed. The impugned order of conviction and sentence is hereby set aside and the appellants are acquitted.
11. It appears there is no getting away from the said decision of this Court earlier and there is absolutely no reason to take a different view on this particular legal point in the facts and circumstances of the case. And it strikes at the very competence of this appeal and its maintainability, once the trial itself stands vitiated strictly in accordance with law.
12. In view of the above, the appeal by the accused/convict is hereby allowed. The impugned judgment and order of the learned Judge, Special Court (E. C. Act), Midnapore dt. 30.9.88 is hereby set aside and the accused stands acquitted and be discharged from his bail bonds at once.
13. Let a copy of this order be sent down to the learned Court below at once.
14. Urgent xerox certified copy of this order, if applied for, be given to the parties.