Calcutta High Court (Appellete Side)
Chhabilal Saha vs The State Of West Bengal on 29 November, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 208 of 1990
Chhabilal Saha
VS
The State of West Bengal
For the Appellant : Mr. Biswajit Manna, Advocate
For the State : Mr. Saryati Dutta, Advocate
Heard on : November 29, 2016
Judgement on : November 29, 2016
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 09.04.1990 passed by learned Judge, Special Court, (E.C. Act) Malda, in Special Court Case No. 13/88 convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of Para 3 of the West Bengal Sugar Dealers Licensing Order 1980 (hereinafter referred to as 2 Order of 1980) and for violation of para 3(2) of the West Bengal Declaration of Stock & Prices of Essential Commodities Order 1977 (hereinafter referred to as the Order of 1977) and under Section 8 of the West Bengal Anti-Profiteering Act, 1958 for contravention of paragraph 6(2) of the said Act and sentencing him to suffer rigorous imprisonment for three months and pay a fine of Rs. 250/- in default to suffer rigorous imprisonment for further one month on each count respectively with further direction that both the sentences shall run concurrently.
The prosecution case as alleged against the appellant is to the effect that on 27.05.1988 at about 09.30 AM S.I. B.B. Biswas, P.W. D.E.O. Bamongola alongwith other police officers and officers of Food and Supplies and Weights & Measures, Malda conducted a joint raid in the grocery shop of the appellant at Bulbulchandi, P.S. Habibpur and found huge quantity of sugar, pulses, and wheat products stored in the shop for sale. Appellant was present in the shop. The officers demanded to see licence, books of accounts in respect of the stock of the essential commodities. The appellant failed to produce any permit or licence 3 or books of accounts or any other paper. The officers also did not find any stock cum price board displayed at the shop showing stock and prices of the essential commodities stored. Accordingly the police officer seized the stock of sugar weighing 16 quintals, pulses weighing 3 quintals, 50 Kgs of wheat products under a seizure list in presence of local witnesses. The appellant was arrested and a First Information Report was lodged for violating of paragraph 3 of Order of 1980, para 3(2) of Order of 1977 punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and under Section 6(2) of the West Bengal Anti Profiteering Act, 1958.
In conclusion of investigation charge-sheet was filed. Substance of accusation was read over to the appellant who pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined as many as 9 witnesses. The defence of the appellant was that the shop room was closed at the time of raid and the appellant was in his residence attending to his ailing wife who was suffering from cardiac ailments at that time. Seven quintals of seized sugar 4 belonged to one Nirapada (D.W. 3) and had been stored in his shop due to rains and accordingly there was no violation of paragraph 3(2) of the Order of 1980. In order to probabilise his defence he examined three witnesses and exhibited a number of documents.
Mr. Manna, learned advocate appearing for the appellant submitted that P.W. 1, an independent witness has not supported the prosecution case. He submitted that the learned Trial Court illegally ignored the evidence of D.W. 3 who claimed ownership of 7 quintals of sugar seized in this case. He further submitted that the entire evidence on record does not establish the guilt of the appellant beyond reasonable doubt and the appellant is entitled to an order of acquittal.
On the other hand Mr. Dutta, learned counsel for the State submitted that the consistent version of the police witnesses was that the shop room was open and in spite of demand the appellant was unable to produce the books of account. There was no stock cum rate board and no explanation was offered for 5 the excess stock which was seized from the shop room. Accordingly the appeal is liable to be dismissed.
P.W. 9, Bhupati Bhusan Biswas, is the leader of the raiding party and the de facto complainant in the instant case. He deposed that on 27.05.1988 he was D.E.O. Bamangola. He along with other police officers, Inspectors of food and supplies, Malda and Weights and Measures, Malda had been to the grocery shop of the appellant. The appellant was present at the time of raid. They found a stock of 16 bags of sugar, 6 bags of motor dal, 1 bag of musur dal, 1 bag of suji weighing 35 kgs and other grocery articles in his shop. No stock cum display rate board was displayed in the shop. Moreover, no stock register and other registers were maintained. The accused was asked to produce those documents and the board. The appellant failed to produce such items and accordingly, they seized the stock under a seizure list which was signed by local witnesses. S.I. Bandya wrote the seizure list as per his dictation. The appellant received the seizure list under his signature (Ext. 1/7). The seized articles were given to the Jimma of P.W. I under Jimmanama (Exbt. 2.). The appellant was arrested and brought to 6 the police station. He lodged the written complaint marked as Ext. 3. He conducted investigation in the case. He made prayer for confiscation of the seized articles before the Collector, Malda. He submitted the charge-sheet.
P.Ws. 2,3,4,6 & 7 were the other members of the raiding party. P.W. 2, Sudhansu Sarkar was the Chief Inspector of Food and Supply Department, Malda. At the time of raid he accompanied the raiding party. They entered the grocery shop cum godown of the appellant with the local witnesses Nirmal Dutta (P.W. I) and Bijan Kumar Saha (P.W.8). They found no stock cum price board at the shop. They found 16 quintals of sugar in 16 bags, 3 quintals of Motor Dal in 6 bags, 50 Kgs. of Musur Dal in 1 bag and 35 Kgs. of suji in 1 bag. They demanded licence, books of accounts and stock cum price board from the shop of the appellant. But the appellant failed to produce the same. They seized the said articles under a seizure list. He signed on the seizure list (Ext. 1 / 2). The appellant was arrested and taken to Habipur P.S. P.W. 3 Santosh Kumar Karmakar, was the Chief Inspector attached to office of the District Controller of Food & Supply, Malda. He was a member of the 7 raiding party. He has corroborated the evidence of the aforesaid witnesses. He also signed the seizure list (Ext. 1/3).
P.W. 4 Sachindra Chandra Bandya was an S.I. of Police posted at the office of D.E.O. Harischandrapur at the material point of time.
P.W. 6, Manash Chattopadhyay, Food Inspector was posted at Malda as Sub-Divisional Food Inspector. Both of the were members of the raiding party and have supported the prosecution case.
P.W. 7 , Sukumar Roy was posted an Inspector of weights and measures at Malda and he accompanied the raiding party and has corroborated the prosecution case as to seizure of aforesaid articles from the shop of the appellant, he also signed on the seizure list marked Exhibit 1/5.
P.W. 5, Pronoy Krishna Dutta, was S.I. of Police attached to Habibpur P.S. He received the written complaint from P.W. 9 and drew up formal F.I.R. which was marked as Exhibit 4. He took the appellant and the papers of this case in his custody. He referred the case to S.P. D.E.B. for arranging investigation. 8
P.Ws. 1 and 8 are the independent witnesses. P.W. 1, Nirmal Kumar Dutta deposed that he is a resident of village - Bulbulchandi. The appellant owns a grocery shop in the said village. On the day of the incident, police officers seized 16 bags of sugar, musur dal, motor dal and suji from the shop of the appellant. The sugar weighed 16 quintals. A seizure list was prepared (Ext.1). He signed on the seizure list (Ext. 1/1). The seized properties were given to his jimma on the strength of a Jimmanama. The appellant was present in his shop and signed the seizure list. Police Officers demanded production of books of accounts and stock board, but the appellant failed to produce. The appellant was arrested. In cross- examination, he, however, deposed that the shop was closed. The appellant was called from his house and the shop was opened. The seized goods were not weighed. The appellant wanted to produce his books of account, but the Police Officers stated that it was not necessary. The appellant was arrested. He saw the stock cum price board at the shop.
P.W. 8, Bijan Kumar Saha was another independent witness. He deposed that there was a raid at the shop of the appellant and the raiding party seized 16 9 bags of sugar, 5/6 bags of dal and 1 bag of suji. He signed on the seizure list. He was declared hostile. In cross-examination by the defence, he stated that there was a grill enclosed verandah in front of the shop. The verandah can be locked from inside. He saw 9 bags of sugar in the shop room and 7 bags on the verandah.
D.W.1, Sailendra Nath Sengupta is a LMF doctor practising at Bulbulchandi. He was a retired government servant. He knew the wife of the appellant and treated her. He issued certificate on 28.5.1988 for her treatment. The patient was suffering from pain in her heart. He treated the patient from 24.5.88 to 28.5.88. He referred the patient to Bulbulchandi PHC. The medical certificate is exhibited as Ext. A. D.W.2, Surendra Prasad was a businessman carrying on business under the name and style of M/s. J. P. Trading Company at Netaji Market, Malda. He issued two cash memos and road challans in his own hand (Ext. B and B/1 and Ext. C and C/1 respectively).
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D.W. 3, Nirapada Sikdar is a resident of Village - Madhayam Kendua. The house of the appellant is 1 Km away from his house. Madhayam Kendua is a 'para' within Village - Bulbulchandi. He purchased 7 bags of sugar from M/s. J. P. Trading Company, Netaji Market on 26.5.88 (Ext. B/1 and C/1). The appellant purchased 9 bags of sugar from the said shop on the same day. They carried all the 16 bags of sugar in the same truck. Dulal Saha (D.W. 5) was the truck driver. They reached village - Bulbulchandi in the evening and as it started raining, his sugar bags were kept in the verandah of the appellant's shop. The sugar bags of the appellant were kept within his house. As it was raining and road condition was not good, he kept his sugar bags there and left for his house. Next day at 12/12.30 PM when he went to the house of the appellant to bring his sugar bags, he found that the bags had been seized and taken away by the police. He got his sugar bags back from the Collector, Malda.
D.W.4, Bhupesh Chandra Bhowmick is the Supervisor attached to Bulbulchandi Rural Hospital. He proved the medical certificate issued by Dr. A.K. Saha (Ext. D) relating to the treatment of the wife of the appellant. 11
D.W.5, Dulal Kr. Saha was the truck driver whose truck was utilized for carrying the sugar bags purchased by the appellant and D.W.3 to Bulbulchandi. He deposed that as it was raining and the roads were slippery, stock of sugar of D.W.3 was kept in the shop of the appellant.
From the aforesaid evidence on record, it appears that there is no dispute as to seizure of 16 quintals of sugar, 6 bags of matar dal, 1 bag of musur dal, 1 bag of suji weighing 35 kg from the shop of the appellant. It is, therefore, contended by the prosecution that as the appellant was in possession of 16 quintals of sugar, which is above the permissible limit, he has violated paragraph 3 of Order of 1980.
The specific defence of the appellant was that he owned 9 kgs of sugar whereas the remaining 7 kgs belonged to D.W.3. To probabilize such defence the appellant has examined D.W.2, the owner of M/s. J. P. Trading Company from whom D.W.3 and he had purchased the sugar. The appellant also examined D.W.5, the truck driver who transported the sugar from the godown of D.W.2 to the village and had stocked all the sugar bags in the shop and adjoining 12 verandah of the appellant as it was raining and the roads were slippery. D.W.3 has also deposed to that effect.
The evidence of the aforesaid witnesses have not been seriously challenged in cross-examination. Hence, it appears that the appellant has probabilized the fact that 7 kgs of sugar which were seized from the adjoining verandah of the shop, did not belong to him and belonged to the D.W.3.
Therefore, I am of the opinion that the prosecution has not been able to prove its case of violation of paragraph 3 of the Order of 1980 beyond reasonable doubt.
Coming to the issue of non production of books of accounts and stock cum rate board from the shop, it is the defence of the appellant that the shop was closed at the time of raid and he was at his house attending to his wife who was suffering from cardiac ailments. The defence has D.W.1 and D.W.4, both Medical personnel, to probabilize the ailment of his wife.
In cross-examination, P.W.1 has also deposed that the shop was closed at the time of raid and the appellant had in fact offered to produce the books of 13 accounts to the Police Officers when he was called to the shop. I am, however, unwilling to give credence to the evidence of P.W.1 who appears to speak in different tunes during his examination-in-chief and cross-examination. However, even if one discounts the evidence of P.W.1, there is nothing on record to show that the members of the raiding party had issued requisition upon the appellant for production of the books of account and stock cum rate board at the time of raid.
In view of the aforesaid inconsistencies in the prosecution evidence, the aforesaid lacuna assumes grave proportions and sounds a death knell for the prosecution case.
Hence, I am inclined to extend the benefit of the doubt to the appellant with regard to violation of paragraph 3(2) of Order of 1977 and Section 6(2) of the Anti Profiteering Act with regard to the allegation of non-maintenance of accounts and/or stock cum rate board in the shop room.
In view of the aforesaid discussion, I set aside the judgement and order of conviction and sentence imposed upon the appellant.
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The appellant shall be discharged from his bailbonds after six months in terms of Section 437A Cr.P.C.
The appeal is allowed.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and for execution of the sentence, as aforesaid.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) Item No. 522 SB/AB