Calcutta High Court
Mrityunjoy Sadhukhan vs State Of West Bengal on 22 March, 2006
Equivalent citations: 1(2007)CLT643
JUDGMENT Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Judge, Special Court (E.C. Act), Nadia in E.C. Case No. 9/88 (T.R. No. 20/88) on 17.05.88.
2. Shortly put, the prosecution case is that on 21.03.88 between 13.00 hrs. and 14.00 hrs. during visit of the pulse-shop of the accused Gachabazar, Nakashipara by S.I. Manik Lal Nandan, DEO, Nakashipara (P.W. 4) with other DEB Officials, the accused/appellant was found dealing in pulses of more than 10 quintals. No stock-cum-rate board was displayed at the place of business nor the accused/appellant, on demand, could produce licence and other documents, for which different items of pulses were seized and the accused/appellant was arrested for violation of the provisions of para 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oil (Dealer's Licensing) Order, 1978 and para 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977, for prosecution under Section 7(1)(a)(ii) of Act X/55. Hence, the accused was charged under Section 7(1)(a)(ii) of Act X/55 for violation of the aforesaid provisions,
3. The defence case is denial of the alleged offence and that stock of pulses did not exceed 10 quintals.
4. Four witnesses on behalf of the Prosecution, while one witness on behalf of the defence were examined, and after considering the facts, circumstances and materials on record, the learned Court below found the accused guilty under Section 7(1)(a)(ii) of Act X/55 for violation of the provisions of para 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealer's Licensing) Order, 1978 and para 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977, convicted him and thereunder sentenced him to suffer R.I. for one year and to pay fine of Rs. 1000/- i.d. to R.I. for three months.
5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. According to the evidence of P.W. 1, S.I. Anil Kumar Manna, on 21.03.88 an about 13.00 hrs. he along with S.I. B. Bhaduri (P.W. 2) and other force had been Gachabazar to assist S.I. M.L. Nandan (P.W. 4) in holding raid. Accused Mrityunjoy Sadhukhan was found running the business of pulses exceeding the permissible limit in his shop which was inspected by them. No Stock-cum-rate board was found displayed in his shop, and the accused, on demand, could not produce any licence for running the said business and any register relating to his business, for which S.I. Nandan (P.W. 4) seized the pulses under a seizure list (Ext. 1/3). A copy of the seizure list was made over to the accused who put his signature on the seizure list. The seized goods were given in the zimma of a third person. The accused was arrested and a written complaint (Ext. 3) was lodged by S.I. Nandan at the P.S. He further stated that the articles were weighed but no weighment chart was prepared. The above evidence in material particulars is corroborated by P.W. 2 S.I. B. Bhaduri and P.W. 4 S.I. M.L. Nandan who took up investigation of the case on being endorsed by O.C. of the P.S. and after completion of investigation submitted charge sheet against the accused. P.W. 3 constable M.M. Chakraborty was simply tendered for cross examination. On the other hand, D.W. 1 Gopal Chandra Sadhukhan produced and proved a register (Ext. A) and stock-cum-rate board. The said register of sale and purchase, as found by the learned Court below, did not bear any certificate of the competent officer nor the entries therein as also in the stock-cum-rate board tallied with the seizure list. Had the said register and stock-cum-rate board been at the shop at the time of inspection of the above DEB Officials, it would obviously have been seized by P.W. 4. The statement of an accused under Section 313 Cr. PC, though not strictly evidence in the case, may be taken into consideration in judging the guilt or innocence of the accused. Here, to a question put to the accused during his examination under Section 313 Cr. PC that he failed to produce any valid licence or permit for keeping huge quantity of stock of pulses, he kept mum. No animus of the said prosecution witnesses against the accused has been made out and so there is no reason to throw out their testimony. That apart, the testimony of a police witness is not liable to be discarded merely because he belongs to police force if it has otherwise the characteristics of trustworthy evidence which is well settled. It has been rightly observed by the learned Court below that the said register and stock cum-rate board were subsequently manufactured by the accused for the purpose of the present case.
8. Mr. Mazumdar, learned Counsel for the appellant, adversely criticized for investigation of the case by P.W. 4 as he lodged the FIR. Mr. Roy, learned Counsel for the State, relying upon the case of State v. V. Jayapaul reported in 2004 SCC (Cr) 1607 contended that there is no legal bar in this regard.
9. Whether a complainant should investigate or not depends upon the fact of the given case. In Sunil Kumar v. State of West Bengal as against the contention that the officer appointed as the enquiry officer was one who had drafted the charges and also advised earlier that there was material for holding the enquiry against the appellant, the Court repelled the same invoking the analogy of the Magistrate who frames prima facie charge against the accused and then tries the case also. The nemo judex in re sua rule is subject to the doctrine of necessity and yields to it. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case is ex-asperating. Furthermore, in the case of Jayapaul (supra) it was held that the police officer who laid/recorded the FIR is competent to investigate the case and submit report in final form. As such, the above contention of the learned Counsel for the appellant does not stand.
10. Accordingly, there appears to be no infirmity with the findings of the learned Court below and order of conviction.
11. The learned Counsel for the appellant urged for reducing the substantive sentence considering the facts and circumstances of the case, the age of his client who is now 48 years old and that it is his first offence.
12. The punishment for an offence under Section 7(1)(a)(ii) of Act X/55 is imprisonment for a term which shall not be less than three months but which may extend to seven years and also fine. The object of punishment is not only to prevent the wrong doer from doing a wrong second time but also to make him an example to other persons who have criminal tendency. "I do not punish you for stealing the sheep but so that sheep may not be stolen", as sometimes. Punishment should be in proportion to the gravity of the crime. The primary consideration which generally weighs with the Courts in the matter of sentence is to see that the sentence imposed is such as effectively impresses on the accused that the life of crime does not pay. At the same time, sentence is a means to an end, a psycho-physical panacea to cure the culprit of socially dangerous behaviour. Considered from the above perspective and taking into account the facts and circumstances of the case, the age of the accused and that it is his first offence, imposing minimim punishment of three months R.I. would have been adequate and would meet the ends of justice.
13. Accordingly, the present appeal be allowed in part. While affirming the impugned order of conviction, the sentence stands modified by reducing the period of substantive imprisonment from one year to three months R.I., the sentence of fine, as imposed, remaining unaltered.
14. The accused/appellant is directed to surrender before the learned Court below immediately to serve out the remaining sentence. In default, the learned Court below is directed to secure his presence in due course of law.
Let a copy of this Judgment along with the LCR be sent down at once to the learned Court below.
Urgent xerox certified copy of this Judgment, if applied for, be supplied to the parties as expeditiously as possible.