Banamali Raul vs The State of West Bengal

Joymalya Bagchi, J.—1. The appeal is directed against the judgment and order dated 29.4.1988 passed by the learned Judge, Special Court (under the Essential Commodities Act), Midnapore Sadar convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing him to undergo simple imprisonment for six months as also to pay fine of Rs. 1,000/-, in default to suffer further simple imprisonment of one month more.

The prosecution case, as alleged, against the appellant is to the effect that on 2.6.1985 the complainant and his raiding party held inspection in the M.R. Shop of the accused from 10 A.M. to 11.30 A.M. and during such inspection found a stock cum rate board dated 2.6.1985 which was displayed at the place of business showing the opening stock of rapeseed oil as one quintal 16 Kg. 600 grams. However during physical verification it was found that there were 5 tins of STC brand rapeseed oil in sealed condition containing 15Kg. net in each such tin and a loose tin of 10 kg of rapeseed oil in the shop. Hence there was a shortage of 31 Kg. 600 gms of rapeseed oil. As per cash memo book there was no sale of any rapeseed oil on 2.6.1985. The stock register and sale register were written up to 1.6.1985, the cash memo bearing No. 513 was written on 1.6.1985, the cash memo Nos. 351 dt. 1.6.1985 to cash memo No. 460 dt. 1.6.1985 were found in the cash memo book.

The articles were seized under a seizure list and first information report was registered. Sankrail Police Station Case No. 1 of 2.6.1985 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 was started and in conclusion of investigation charge sheet was filed. Substance of accusation was read over to the appellant. The appellant pleaded not guilty and claimed to be tried.

In course of trial, the prosecution examined as many as seven witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court by a judgment and order dated 29.4.1988 convicted the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter referred to as the order of 1977) and sentenced him, as aforesaid.

Mr. Dutta, learned amicus curiae submits that during the course of raid sale of rapeseed oil was effected in favour of various customers but the said sale was not entered in the cash memo book but was written in a white sheet of paper and was subsequently entered in the cash memo book. It was further submitted that the said evidence was probabilisied by the evidence of PWs.2 and 4.

Mrs. Ghosh, learned Advocate appearing for the State submits that evidence on record clearly shows shortage in the quantity of rapeseed oil and the stock board did not reflect actual physical quantity of rapeseed oil in the shop and accordingly conviction was rightly recorded.

PW 1 is the inspector of police attached to DEB, Midnapore who raided the shop on 2.6.1985 between 10.00 hrs. to 11.30 hrs. He found that the opening stock in the stock cum rate board was written as 116 Kg. 600 Gms. The physical verification of the stock showed shortage of 31 Kg. 600 Gms. The cash memo book did not show any sale of rapeseed oil. All articles including essential commodities were seized under the seizure list being exhibit ''1''. Thereafter the accused was arrested and he lodged a written complaint which was treated as FIR. In cross-examination he deposed that few customers were waiting in the shoproom of the accused with their ration cards when he visited the said shop room.

PW 2 is a member of the raiding party and he corroborated the evidence of PW 1.

PW 3 is a local witness. He put his signature on the seizure list as well as in the Zimmanama (Exbt. 2). In cross-examination, he stated that on 2.6.1985 due to the pressure of customers sale of rapeseed oil was written in plain paper and that ration articles were given to him. Later on entry was made on his ration card and cash memo was issued.

PW 4 another seizure list witness deposed that on 2.6.1985 he had drawn rationing articles and the same was mentioned in his ration card. On the date of occurrence 50/60 customers were standing in the shop. Rationed articles were delivered against kaccha memos.

PW 5 was a member of the raiding party who has also corroborated the evidence of PW 1.

PW 6 received the FIR and has proved the formal FIR.

PW 7 is the investigating officer of the case who investigated case and filed charge sheet.

I have considered the evidence on record. Evidence of PWs.1, 2 and 5 proved that there was a raid conducted in the shop room of the appellant. At that time of raid customers were present in the said shop room. The entry of opening stock of rapeseed oil in the stock cum rate board did not tally with the physical quantity of rapeseed oil in the shop room. There was a shortage of 31 Kgs. 600 gms of rapeseed oil. The defence taken by the appellant is to the effect that the business was being carried on and rapeseed oil was being supplied to the cardholders who were present in the shop room and instead of issuing cash memos entries were made in a plain paper and subsequently the same had been reduced into writing in the cash memo book and cash memos were handed over to the concerned cardholders. PWs.4 and 5 in cross-examination had supported such defence and had claimed that they took rationed articles from the shop in such manner. However, no effort was made on behalf of the appellant to show that how much sales was, in fact, effected on that day and whether the quantity of shortfall is accordingly accounted for. The evidence of PWs. 4 and 5 was also unconvincing in this regard as they do not indicate whether they had taken any supply of rapeseed oil. A faint plea of supply to the customers in an illegal manner without issuing cash memo to account for shortfall in the actual quantity of rapeseed oil cannot be taken to be a plausible defence which would improbabilise the prosecution case. I am of the opinion that the conviction recorded by the trial Court is justified and does not call for any interference.

I find that the appellant has no criminal antecedents and three decades have lapsed in the meantime. The appellant was in jail for seven days during investigation. Hence, I reduce the sentence imposed upon the appellant and directed him to suffer simple imprisonment for three months and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for 15 days more.

The period of detention suffered by the appellant during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.

The bail bond of the appellant is cancelled and he is directed to surrender forthwith before the trial Court and serve out the sentence immediately.

The appeal is accordingly disposed of.

Lower Court Records along with a copy of the judgement be sent down to the trial Court forthwith for necessary compliance and for execution of the sentence, as aforesaid.

I record my appreciation for the able assistance rendered by Mr. Dutta as amicus curiae in disposing of the appeal.

Urgent certified photocopy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.