Dilip Kumar Ghosh vs State of West Bengal

The appeal is directed against the judgement and order dated 7th August, 1987

passed by the learned Judge, Special Court (E.C. Act), Hooghly, convicting the appellant

for commission of offence punishable under Section 7(1)(a)(ii) of the Essential

Commodities Act as amended up to date for violation of Para 3(2) of West Bengal

Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter

referred to as ''Order of 1977'') and Para 5 of Fertilizer Control Order, 1957 (hereinafter

referred to as ''Control Order of 1957'') and sentencing him to suffer rigorous imprisonment

for six months and to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment

for one month.

The prosecution case as alleged against the appellant is to the effect that on 19th

February, 1986 the Officer of D.E.B., S.I. B.B. Roy along with W/C Prem Kumar Magar

and Samser Ali inspected the fertiliser shop of the appellant situated at Gajarmore, P.S.

Haripal and found different kinds of fertilisers exposed for sale in the said shop. On

demand, the appellant could not produce the stock-cum-rate board in the shop. He

produced the stock and sale registers as well as the cash memo book. The officer found

that the stock register was written up to 10th February, 1986 showing opening balance of

urea 5000 kgs. in 100 bags and growmore 2000 kgs. in 40 bags. Stock register was

written upto 16th December, 1986. On physical verification of the stock of fertiliser, the

officer found 20 kgs. of urea were available in the shop. Hence, there was a shortage of

4080 kgs. in case of urea. In case of growmore, there was a shortage of 1960 kgs. In case

of potash, although the stock register reflected 3050 kgs. in 51 bags, no stock was found.

Accordingly, the available stock was seized and FIR was registered against the appellant.

In conclusion of investigation, charge-sheet was filed against the appellant. Substance of

accusation was read over and explained to him. The appellant pleaded not guilty and

claimed to be tried. In the course of trial, prosecution examined three witnesses and

exhibited a number of documents. The defence examined one witness to probabilise its

case. In conclusion of trial, the trial Judge by the impugned judgement and order

convicted the appellant for commission of offence under Section 7(1)(a)(ii) of the Essential

Commodities Act and sentenced him, as aforesaid.

Mr. Anirban Dutta, learned Amicus Curiae, submitted that evidence as to

weighment of the stock of fertiliser found at the shop room was not proved beyond

reasonable doubt. He further submitted that the prosecution was launched under the

provisions of the Control Order of 1957 although the said order had been repealed and the

new control order namely, Fertiliser Control Order, 1985 had been promulgated at the time

of inspection. In view of the aforesaid repeal, police officers did not have jurisdiction to raid

and inspect any violation under the new control order. Hence, the appeal ought to be

allowed.

On the other hand, Ms. Faria Hossain, learned advocate appearing for the State,

submitted that the appellant was unable to produce any licence although there is evidence

on record that he was dealing with fertilisers. She further submitted that by notification

under clause 19 of the Control Order of 1957, police officers had been empowered to act

as fertiliser inspectors under the said Control Order and such appointments had been

saved under the new Control Order of 1985. Therefore, there was no jurisdictional error in

conducting the inspection and seizure in the shop room of the appellant. She,

accordingly, prayed for dismissal of the appeal.

PW1, S.I. B.B. Roy, is the de-facto complainant in the instant case. He deposed

that on 19th February, 1986 along with one Prem Kumar Magar and Sk. Samser Ali, they

had inspected the fertiliser shop of the appellant. He found that the appellant was present

and was dealing in different kinds of fertilisers in his shop. On demand the appellant

produced one stock register, sale register and cash memo book. He could not produce the

stock-cum-rate board of fertilisers. He was also unable to produce any licence. He stated

that his licence had been submitted in the office for renewal. On physical verification it was

found that the actual stock did not tally with the stock register. Accordingly, they seized the

stock register, sale register, cash memo book and different kinds of fertilisers stocked in

the shop. He proved the seizure list (Exhibit-1). The seized articles were given in the

jimma of the appellant. He arrested the appellant and took him to the police station. He

proved his written complaint (Exhibit-2). He proved the formal FIR (Exhibit-3).

In cross-examination, he stated that the shortage of urea was found to be 4080

kgs. He did not prepare any weighment chart. No fertiliser inspector accompanied him.

PW2, Samser Ali deposed that he accompanied PW1 at the time of raid of the

fertiliser shop of the appellant. Appellant was present at the shop. Officer demanded

licence and stock books. The appellant failed to produce licence and board. He produced

the stock register. Entries in the stock register did not tally with the actual stock. Officer

seized the articles under a seizure list. He signed the seizure list (Exhibit-1/1). Appellant

was arrested.

In cross-examination, he stated that the appellant declared that his licence was

deposited for renewal.

PW3, W/C Prem Kumar Magar was another police constable who accompanied

PW1 at the time of raid. He has corroborated the evidence of PW1 and 2. He has proved

his signature on the seizure list.

In cross-examination, he stated that weighment was done by the appellant himself.

DW1 deposed that he was present at the shop room of the appellant when the raid

was conducted. There was a slate in the shop room which had writings on it. He produced

the slate in court wherein nothing was written (Mat. Exhibit-A).

In cross-examination, it is stated that similar types of slate are available in the

market.

From the evidence-on-record it is clear that the appellant was conducting business

in fertilisers from his shop at the time of raid. Inspite of demand he was unable to produce

the requisite licence to carry on such business. Although he claimed that the licence had

been deposited with the authority for renewal, the appellant failed to produce the receipt

during investigation or in the course of trial. It is, however, strenuously argued that as

there is no weighment chart and the stock register was not produced in court, it cannot be

said that there was a shortfall between the entries in the stock register and the actual

quantity of fertiliser seized from the shop room of the appellant. It is undeniable that the

appellant was carrying trade in various kinds of fertilisers which was seized from his shop

room without requisite licence. Since the appellant failed to produce any licence for

carrying on such business, non-production of stock register does not cause an irreparable

dent in the prosecution case. It has been argued that the prosecution was launched in

respect of the repealed control order and not under the new control order of 1985. It has

also been argued that the notification under the Control Order of 1957 empowering police

officers to act as fertiliser inspectors cannot justify the raid by the police officers under the

new control order.

It is trite law that incorrect reference to a repealed provision does not affect the

prosecution case if the substance of breach is otherwise the same under the provisions of

the new control order. There is ample evidence to show that the appellant was carrying on

trade in fertilisers without licence and hence, it cannot be said that the appellant had not

violated the provisions of the new control order which are para materia to the repealed

control order. That apart, clause 31(2) of the new control order saves all appointments

made in terms of the repealed order and therefore, authorisation of the police officers to

act as fertiliser inspectors under the old control order were protected by the aforesaid

saving clause and exercise of powers of raid and seizure by the police officers under the

new control order cannot be said to be without authority of law. Finally, the evidence of the

defence witness is wholly unconvincing and does not inspire confidence. Hence, the

prosecution case has been proved beyond reasonable doubt.

In the light of the aforesaid discussion, the conviction of the appellant is upheld.

Coming to the issue of sentence, I find that the incident had occurred three

decades ago and the appellant had no previous criminal antecedent. Hence, I reduce the

sentence imposed on the appellant and direct that the appellant shall suffer rigorous

imprisonment for three months and shall pay a fine of Rs.2,000/-, in default, to suffer

rigorous imprisonment for fifteen days more. Such fine shall be paid within four weeks

from date.

Period of detention suffered by the appellant during investigation, enquiry and trial

shall be set off against substantive sentence under Section 428 of the Code of Criminal

Procedure.

The bail bond of the appellant is cancelled and he is directed to appear before the

trial court within four weeks and serve out the sentence, as aforesaid. If he fails to do so,

the trial court shall be at liberty to execute the sentence and realise the fine in accordance

with law.

With the aforesaid modification, the appeal is disposed of.

The lower court records along with a copy of this judgement be sent down at once

to the learned trial court for necessary action.

I record my appreciation for the able assistance rendered by Mr. Anirban Dutta,

learned advocate, as Amicus Curiae in disposing of the appeal.

Photostat certified copy of this order, if applied for, be given to the parties on

priority basis on compliance of all formalities.