Angalal Debnath and Another vs State of Tripura

B.B. Deb, J.—This Criminal Appeal is preferred by the accused-Appellants against the judgment of conviction and sentence dated 26.7.1996 passed by the learned Special Judge, West Tripura, Agartala in Special Court Case No. 3/95 convicting the accused-Appellants u/s 7of the Essential Commodities Act and imposing a sentence of R.I. for one year and a fine of Rs. 5,000/- each, in default R.I. for Anr. three months.

The prosecution case leading to the trial, conviction and present appeal can be briefly narrated as under:

Shri Satya Prakash Choudhury, Sub-Inspector of Police, Enforcement Branch, Agartala lodged a suo moto FIR to the Officer-in-Charge of West Agartala Police Station alleging, inter alia, that he along with his staff visited Lankamura Fair Price Shop No. 2 on 6.1.1995 and searched the Fair Price Shop, took into custody the relevant records and documents, verified the stock and found manipulation in records and stock of commodities, found the Display Board not properly maintained and as such he lodged the complaint vide West Agartala P.S. Case No. 2/95 u/s 7(i)(a)(ii) of the Essential Commodities Act. The O/C endorsed the case to the said Sub-Inspector, Shri Satya Prakash Choudhury for investigation and on completion of investigation he furnished the charge sheet. The learned Special Court took cognizance, examined the accused u/s 251 Code of Criminal Procedure to which the accused claimed to be tried and thus the learned trial Court conducted the trial. The prosecution examined as many as six witnesses while the defence none. On conclusion, the accused Shri Angalal Debnath and Shri Narayan Ch. Debnath have been convicted and sentenced as already mentioned.

The learned Trial Court after appreciating the evidence recorded its findings details of which are available in paras 8, 9, 11 and 12 of the judgment. Having relied upon the testimonies of P.W. 1, Shri Satya Pralash Choudhury, Sub-Inspector of Police, Enforcement Branch, the learned trial Court held that on 18.9.94 according to the stock register and sale register of the Fair Price Shop the opening balance should have been 120 Kg while the figure "1" before figure "20" was found over written. On 19.9.94 the accused dealers received 2000 kg. rice vide D.O. No. 434 from the Govt. stock and as such the total stock on 19.9.94 should have been 2120 kg. of rice. The accused have shown sale of 290 kg. of rice and as such the balance should have been 1830 kg. but it was shown as 1730 kg. So this shortage of 100 kg. of rice has been committed by the accused-Appellants by manipulating the record. The learned trial Court also put reliance upon exhibits. P-4, P-5 and P-6, three ration cards and held that the entries of the ration commodities alleged to have been sold to the ration card holders remained not entered into the ration cards and as such the learned trial Court arrived at its finding of guilt.

Mr. P.K. Biswas, learned Counsel appearing on behalf of the Appellants submits that the investigation was carried out not in accordance with the law, P.W. 1 Shri Satya Prakash Choudhury was the informant and he conducted the investigation which is not permissible under the law. Before recording the FIR said P.W. 1 started the investigation and caused the seizure of the commodities and as such the search and seizure have been done having no sanction of law. The learned Counsel for the Appellants further submits that in the seizure list there remained no mention as to manipulation of figure "1" in the figure "120" having penned through the figure "1". Had this over writing or pen through or writing manipulation been there visible in the related register, the investigating officer ought to have mentioned the same in the seizure list itself or many event ought to have made the mention in his case diary, but these are totally lacking and as such according to the learned Counsel for the Appellants, over writing appeared in the related register by which the figure "1" penned through from the figure "120" might have been committed while the related register had been under the custody of the investigating officer after seizure and as such for that manipulation the Appellants cannot be held guilty.

It is correct that had the figure "120 kg." been there, the balance of the foodgrains would have been found to be correct and in conformity with the sale register and as such it is very difficult to believe that the Appellants manipulated the figure "1" creating a circumstances against their own interest.

From the seizure list it appears that the investigating agency did not make any mention as to the finding of some over writing in the figure "120 kg" in the related register. During examination P.W. 1 did not divulge whether he recorded the same in his case diary and as such it is very difficult to believe that there was any over writing in the figure "120 Kg." at the time of seizure.

The learned Counsel for the Appellants submits that investigation had been commenced at 10.00 A.M. and concluded at 4.10 P.M. on 6.1.1995 as available from the testimony of P.W. 1 who deposed that he visited the Ration Shop at 10.00 A.M. and left the Ration Shop at 4.10 P.M. and this P.W. also deposed that on secret information he rushed to the Fair Price Shop of the Appellants making a G.D. Entry and on return from the Fair Price Shop he lodged the FIR.

In view of Section 157 of the Code of Criminal Procedure, a Police Officer not below the rank of Sub-Inspector of Police can undertake an investigation on a cognizable offence on the basis of reported first information or "otherwise". In the present case, undoubtedly at the time of commencement of the investigation at 10.00 A.M. on 6.1.1995 there was no FIR and the seizure list prepared on that day contains reference of G.D. Entry, number instead of FIR. The registration of FIR obviously, is not a sine qua non for commencing investigation in a cognizable case, but that must be on the basis of some information for which the Parliament very carefully put the words on the basis of "information" or "otherwise". In the present case, it reveals that P.W. 1, the investigating officer rushed to the spot and commenced with the investigation on the basis of G.D. Entry (General Diary of the PS.) bearing No. 270. The reference of the said G.D. Entry is also available in the seizure list, but unfortunately during trial the prosecution could not produce the said G.D. Entry before the Court. In this case that G.D. Entry is the document legally termed to be an item referred as "otherwise" u/s 157 of the Code of Criminal Procedure and as such the entire investigation had been carried out on the strength of that, G.D. Entry disclosing commission of cognizable offence and for all practical purposes the said G.D. Entry is to be treated as F.I.R. authorising the Police officer to undertake the investigation. Defence has a statutory right to test the veracity of P.W. 1, the informant touching the entries available in the said G.D. for the purpose of contradiction, but the prosecution having withheld the said G.D. Book deprived the Appellants for exercising their statutory right of defence and it caused prejudice to the defence.

The investigation virtually started at 10.00 A.M. on 6.1.1995 on the basis of the said G.D. Entry while the Investigating Officer conducted search of the Fair Price Shop belonging to the Appellants and taken into custody the stock book, sale book and other documents preparing seizure list and thereat, the said Investigating Officer lodged the FIR. So, apparently the informant is the investigation officer which is opposed to the fair play and it lacks the confidence of impartial investigation. The Officer-in-Charge of the Police Station should have endorsed the case to other officer for investigation and P.W. 1, Shri Satya Prakash Choudhury could have been cited as the vital witness of the case. A witness of a particular incident, be he informant or otherwise, cannot be allowed to investigate the case himself. That basic principle in-built in the fair and impartial investigation u/s 157 Code of Criminal Procedure has been violated in the present case.

The prosecution case is that the accused-Appellants manipulated the figure "120" by over writing the figure "1" but there was no mention available in the seizure list nor there is anything in the case diary as has already been pointed out above. I am not inclined to believe the testimony of P.W. 1 on that score.

During examination u/s 313 of the Code of Criminal Procedure the learned trial Court did not put any question to the Appellants as to the manipulation of figure "1" in the figure "120 kg." available in the related register and as such the liability for over writing the figure "1" in the figure "120" cannot be fastened upon the Appellants in absence of any lawfully admissible evidence on record.

After taking cognizance of the offence the learned trial Court examined the accused-Appellants u/s 251 Code of Criminal Procedure. The gist of the allegation had been read over to the accused-Appellants and thereafter, they were asked either to admit or to take defence. The relevant portion of the question put u/s 251 Code of Criminal Procedure is reproduced below:

...and as such committed an offence punishable u/s 7(1)(a)(ii) and 9(ii) of the E.C. Act. Do you confess your guilt?

Appellants have been convicted by the impugned judgment and the effective portion of the conviction so recorded by the learned trial Court as available in para 18 of the judgment is reproduced below:

the accused persons were found guilty for commission of an offence punishable u/s 7 of the E.C. Act and accordingly I propose to convict them u/s 7 of the E.C. Act and sentence them to suffer R.I. for one year and to pay a fine of Rs. 5,000/- (Rupees five thousand) each. The accused persons prayed for mercy before the Court.

It reveals that the accused-Appellants had been asked to face the trial for commission of offence u/s 7(i)(a)(ii) of the E.C. Act while they have been convicted u/s 7 of the E.C. Act. On bare perusal it appears that there is no provision called "Section 7" under the E.C. Act. It starts with 7(i) of the E.C. Act and there is no provision for convicting an accused u/s 7 of the E.C. Act without specifying the Sub-section and clause thereunder. This omission in referring the section in the conviction order reflects non-application of mind by the learned trial Court.

Under the aforesaid discussion, I am constrained to hold that the findings arrived at by the learned trial Court that the accused-Appellants manipulated the relevant records appears to be based on no admissible evidence. The investigation was carried out not in accordance with the sanctioned provision of law resulting prejudice to the defence. Non-production of the G.D. Entry, which is the foundation of the investigation also denied the defence to take contradiction of the entries available in the G.D. with reference to the oral testimonies of P.W. 1 before the Court and the cumulative effect of all these commissions and omissions led me to allow the benefit of doubt to the Appellants.

In the result, the appeal succeeds. The Appellants are acquitted on allowing the benefit of doubt.

Announced.