Badrul Sk. & Anr. vs State Of West Bengal.

Ananda Kumar Mukherjee, J.

Appellants have preferred this appeal under section 374 of the Code of Criminal Procedure, assailing the judgment and order dated 23.06.1990 passed by Learned Judge, Special Court under Essential Commodities Act, Malda, in Special Court Case No. 27 of 1989/ D.G.R Case no. 56 of 1989 where the appellants are convicted for an offence punishable under section 7(1)(a)(ii) of Essential Commodities Act and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 500 each in default to suffer rigorous imprisonment for one month.

In brief, fact of the case is that on 25.10.1989 at about 9:30 A.M the two appellants were found standing at Baisnabnagar 16th Mile Crossing on N.H. 34 under Police Station Baisnabnagar and they were in possession of 504 Litres of Kerosene Oil in 13 plastic jaricanes without any license or permit. The appellants were waiting for some transport so that they could take the jaricanes containing Kerosene Oil towards Farakka. At the relevant time Bholanath Mondal a police constable of Baisnabnagar Police Station who was sitting at a tea stall noticed the appellants and on asking them they could not produced any license or document for possessing such huge amount of Kerosene. Bholanath Mondal then informed the Officer-in-Charge of Baisnabnagar Police Station which is situated close to the place of occurrence. S.I. B.B. Das, the Officer-in-Charge of Baisnabnagar reached the place of occurrence and on finding the appellants with Kerosene oil seized the jaricanes. The two accused persons along with the alamats were taken to the police station. The appellants disclosed that they were transporting Kerosene Oil for their business and had no license. The accused persons by their Acts contravened the provision of West Bengal Kerosene Control Order and committed offence punishable under section 7(1)(a)(ii) of Essential Commodities Act 1955. The accused persons were then arrested and a General Diary Entry bearing no. 717 dated 25.10.1989 was recorded at the police station.

The matter was thereafter informed to Inspector, S.P Chattoraj of D.E.B., Malda. On receiving information Inspector S.P Chattoraj visited the police station and lodged an FIR at the police station. S.I. S.K Saha investigated into the case and submitted charge sheet. Both the accused persons were examined under section 251 of Cr. P.C. During such examination substance of accusation relating to possessing unauthorized Kerosene Oil was stated and explained to them and the accused persons pleaded not guilty to the offence under section 7 (1)(a)(ii) of Act X of 1955, for contravention of Para 11(2) of West Bengal Kerosene Control Order 1968. The case was tried by the Special Court at Malda where prosecution examined 8 witnesses. Inspector Samar Pratap Chattoraj of D.E.B., Malda, the de facto complainant, has been examined as PW 1. He has proved the FIR lodged by him as Exhibit 1 and the formal FIR as Exhibit 2. The true copy of General Diary is marked as Exhibit 3. The witness deposed that he had no personal knowledge about the matter and he did not investigate into the case. Witness further deposed that S.I. S.K. Saha was entrusted to hold investigation in this case.

Bholanath Mondal is examined as PW 2. He is a police constable who first noticed the two accused persons on 25.10.1989 at Baisnabnagar, N.H. 34 crossing at 9:05 A.M. In his evidence he has stated that the two persons were standing at the Baishnabnagar 16th Mile Crossing on N.H. 34 with 13 Plastic jaricanes, waiting for vehicle. On enquiry they stated that the jaricanes contained Kerosene Oil. 11 jaricanes contained 36 liters each and 2 jaricanes contained 54 liters each and they were waiting to proceed towards Farakka. PW 2 further deposed that the persons disclosed their names as Badrul Sk. and Rejabul Sk. but failed to produce any license or permit for possessing large quantity of Kerosene Oil. According to his evidence he took the two accused persons and the alamats to Baisnabnagar Police Station and handed them over two O.C. Baisnabnagar Police Station. PW 4 S.I. B.B. Das, O.C Baishnabnagar deposed that on 25.10.1989 at about 9:30 A.M Constable Bholanath Mondal reported that accused Badrul Sk. and Rejabul Sk. were trying to carry Kerosene Oil in 13 jaricanes by truck. On receiving the information he went to the Traffic post attached to the police station and found the jaricanes with Kerosene Oil and the two accused persons. On demand the accused persons failed to produce any license or document. PW 4 stated that in presence of witnesses he seized Kerosene Oil under a seizure list which was signed by witnesses and the accused persons. The seizure list was produced in trial as Exhibit 4. PW 4 also deposed that the matter was entered in G.D.E No. 717 dated 25.10.1989. The original General Diary is marked as Exhibit 5 and it’s true copy as Exhibit 3. PW 4, then referred the matter to S.P. D.E.B,. Malda. Inspector S.P. Chattoraj came to the police station perused the papers and lodged a written complaint. The endorsement of receipt PW 4 on the written complaint has been marked as Exhibit 1/1. In cross examination the witness stated that he made a General Diary Entry after return from the place of occurrence. He also deposed that local shop keepers were present during his visit to the P.O and that seizer of the alamaths were made at the place of occurrence.

PW 3 Ramhori Sarkar, a local resident deposed that on the date of occurrence at about 9:00 to 9:30 A.M. He was sitting at a tea shop situated near the 16th Mile stop at Baisnabnagar. At that time he saw the two accused persons standing at the Bus stop with Kerosene Oil in 13 jaricanes. PW 3 stated that a police man went and caught the accused persons along with Kerosene Oil and on demand the accused persons failed to produce any paper. He stated that in 13 jaricanes the accused persons possessed 551 liters of Kerosene. Police man caught the accused persons and took them to the police station along with alamath. PW 3 further deposed that he also accompanied those persons to the police station and the jarisanes were seized in his presence. The signature of the witness on the seizure list has been marked as Exhibit 4/1.

PW 5, Paresh Mondal, a Home Guard posted at Baishnabnagar police station corroborated the evidence of other witnesses and deposed that on 25.10.1989 while he was on traffic duty at 16th mile more his colleague Sachin Mondal was also there. At about 9:00 to 9:30 A.M two persons were found standing at the crossing with Kerosene Oil in 13 Plastic jaricanes, waiting for transport. PW 5 further stated that Constable Bholanath who was sitting in a tea shop came there and caught the accused persons. On enquiry by the constable, the accused persons stated that the jaricanes contained Kerosene Oil which belongs to them and they failed to produce any license or permit. PW 3 and PW 5 identified the accused appellants in court. PW 6 Sachin Mondal corroborated the evidence of PW 5 Paresh Mondal and also supported the prosecution case that on 25.10.1990 the two accused persons were found standing near 16th mile crossing at Baisnabnagar with 13 jaricanes containing Kerosene Oil. PW 6 also deposed that on demand the accused persons failed to produce any paper. He stated that the O.C Baisnabnagar Police Station came their and took the accused persons to the police station along with alamaths. PW 7 Giasuddin Ahammed was tendered by prosecution. The witness neither supported nor destroyed the prosecution case in any manner. PW 8 Sushil Kumar Saha, the Investigating Officer deposed that Inspector S.K. Chattoraj of D.E.B., Malda endorsed the case to him on 02.11.1989 for holding investigation. In course of investigation he visited the place of occurrence, made prayer before the collector for confiscation of the seized property. He examined witnesses in this case on 03.11.1989 and submitted charge sheet against the accused persons. It appears from his evidence that he did not prepare any sketch map of the place of occurrence nor did he send any sample of the material seized for chemical examination.

The two accused persons were examined under section 313 of Cr. P.C and they pleaded not guilty to the charge. After considering the evidence on record. Learned Judge Special Court under Essential Commodities Act, Malda convicted both the appellants for contravention of Para 11 (2) of the West Bengal Kerosene Control Order, 1968, thereby held them guilty for the offence punishable under section 7(1)(a)(ii) of Act X of 1955. The appellant convicts were sentenced to rigorous imprisonment for three months and a fine of Rs. 500 I.D to suffer rigorous imprisonment for one month.

Being aggrieved the appellants preferred this appeal substantially on the grounds inter alia that the judgment of conviction of sentence is bad in law, the findings of the court is not based upon real evidence. It is contended that learned Judge should have held that prosecution case was not proved on material evidence on record and the accused persons were not guilty. It is urged that the impugned judgment is bad in law and the same is liable to be set aside.

Since no step was taken on behalf of the appellants, administrative notice was directed to be served upon Badrul Sk. and Rejabul Sk. On the basis of the report received from the department, it appear that notice was duly served upon Badrul Sk. but notice could not be served upon the other appellant Rejabul Sk. as he expired on 10.01.2021. By order dated 03.03.2022 it was recorded that the appeal abated against Rejabul Sk. under section 394 (2) of the Code of Civil Procedure.

Since no one appeared on behalf of Badrul Sk., Mr. Surajit Saha learned advocate has been appointed Amicus Curiae to represent the case of appellant and assist the court.

Heard learned Amicus Curiae who argued that the alleged Kerosene Oil seized from the appellants was not sent for any chemical examination, therefore, it cannot be said with certainty that the appellants were possessing 13 jaricanes full of Kerosene Oil. It is argued that there is discrepancy between the evidence of PW 2 Bholanath Mondal and PW 4 S.I. B.B. Das regarding the place of seizure. Learned advocate argued that while PW 2 and PW 3 deposed that the accused persons and the alamats were taken to the police station were seizure was made, PW 4 S.I. B.B. Das deposed that he made seizure of Kerosene Oil in presence of witnesses at the place of occurrence.

In reply Mr. Agarwala, learned advocate for the State argued that the evidence against the accused appellants is consistent and overwhelming which establishes the charge against the appellants. It is argued that the place of occurrence at the 16th Mile crossing with N.H. 34 at Baishnabnagar which is situated close to Baisnabnagar police station, therefore, minor discrepancies regarding the place of seizure or the quantity in liters could not affect the credibility of prosecution case. Learned advocate for the State respondent argued that the impugned judgment is based upon real and substantial evidence and calls for no interference.

On a close consideration of the evidence of the material witnesses, it appears that the accused persons were apprehended in broad day light in presence of PW 2, PW 3 and PW 5 and PW 6. A large quantity of Kerosene Oil in 13 jaricanes amounting to 504 liters were seized from the possession of the two appellants for which they could not produce any license or permit nor give any suitable explanation. There is no enmity between these witnesses and the two appellants. Therefore, there is no reason for the witnesses to grind their axe against the appellants by deposing falsely for their conviction and sentence.

Kerosene Oil is a commonly used substance. Therefore, in requires no expert knowledge to determine that the seized substance was Kerosene Oil. Considering the evidence on record I find there is no infirmity in the judgment passed by learned Special Court under the Essential Commodities Act, Malda. The sentenced passed against the appellant is not excessive and is found appropriate. The learned court has borne in mind that no previous offence had been recorded against them. Under such circumstances the judgment is affirmed and the appeal is dismissed on merit in respect to convict Badrul Sk. On the basis of materials in the LCR. Interim order if any stands vacated. Let a copy of this judgment along with LCR be send down to learned Judge Special Court under Essential Commodities Act, Malda for information and execution of the sentenced against Badrul Sk.

Urgent Photostat certified copy of this order may be supplied to the parties expeditiously if applied for, maintaining all formalities.