Jitendra nath Kalita vs State of Assam

V.D. Gyani, J.—This appeal is directed against the judgment and order dated 12.10.93 passed by Special Judge, Jorhat in Special Case No. 4 of 1990 thereby holding the Appellant guilty of offence punishable u/s 7(1)(a)(ii) of the Essential Commodities Act and sentencing him to undergo 3 months R.I. with fine of Rs. 100/-or in default for payment of fine to suffer 3 months R.I. The accused Appellant was tried along with two others, namely, Lakheswar Bora and Bhowrilal Maheswari on the following charges:

On 24.8.90 at Jorhat disposed of 100 bags of atta belonging to Dakhin Charigaon G.P.S.S. Ltd. grossly violating clause II, 14 and Licence 3(a) & (d) of the Assam Public Distribution of Articles Order, 1982.

Prosecution case in brief was that the Inspector, Food and Civil Supplies, Jorhat on receipt of a complaint inspected the record and godown of Dakhin Charigaon, Gaon Panchayat S.S. on 12.9.92, he found certain discrepancies in the record. 100 bags of atta which according to the prosecution had been lifted by accused Lakheswar Bora, Chairman of the Society from Maheshwari Flour Mill, Jorhat was not entered into the record of the Society, nor it has been distributed to the consumers. The allegations made in the report as submitted by Inspector of Food and Civil Supplies are as follows:

On receipt of the complaint, 1 along with Sri Laba Kumar Dutta, Inspector, F & C.S., Jorhat visited Dakhin Chairgaon G.P.S.S. on 12.9.90. In the quota Endorsement Book, 100 bags of atta were found lifted by Sri Lakheswar Borah, Chairman, from Maheswari Flour Mill, Jorhat on 24.8.90. But there was no such entry in the Stock Book of the said G.P.S.S. The Secretary Shri Jitendra Nath Kalita informed that neither he received the said stock of atta nor he saw it in his godown. The quota Endorsement Book was taken by the Chairman without his knowledge.

Then I checked the godown but those 100 bags atta were not found there. There were no records found available as to distribution through the Agents. Then I seized the physical stock along with the records as per seizure list in Col. 5. The seized stock were given to the zimma of the Secretary from whom it were seized.

The Chairman had got no authority to lift any allotted commodities. So the miller should not have issued to him, but he did it illegally. The Chairman illegally disposed of those 100 bags of atta instead of selling the same to the retailers (Agents) of the Society, which was also connived by the Secretary.

The Chairman stated that he did not lift the stock but lift it with the miller Sri Bhowrilal Maheswari in lieu of Rs. 1000.00 (Rupees one thousand) collected by him from the said miller.

On the above allegations, it was alleged that the accused violated Clause II, 14 and conditions of licence particularly conditions 3(a) & 4 of the Assam Public Distributions of Articles Order, 1982. Prosecution examined only one Witness, the Food and Civil Supplies Inspector as P. W. 1 who proved certain documents from Exhibits-1 to 7. The accused Appellant examined himself as a witness. His stand at the trial was that on 24.1.90 he was on leave and it was the Chairman of the Society, Lakheswar Bora, accused No. 1 who had brought 100 bags of atta from Maheswari Mill and he pleaded ignorance. Trial Court, however, rejected his defence, found him guilty of offence charge and sentence him as already noted above. Hence this appeal.

Heard Mr. N. Dutta, learned Counsel for the Appellant and Mr. Mannan, learned Penal Lawyer for the Respondent-State. Referring and reading of the impugned judgment, the learned Counsel argued that the findings recorded by the trial Court are not only contracting of evidence, but they are self-contrary as well. It was the President of the Society who lifted 100 bags of atta from Maheswari Flour Mill, learned Special Judge referring to the statements of accused Lakheswar as recorded under Section313 Code of Criminal Procedure has noted that he had admitted that he lifted 100 bags of atta from Maheswari Flour Mill and according to him the same was distributed as per rules. Merely because, the accused Appellant happened to be Secretary of the Society who was supposed to deal with the business of the Society and the President has no such power which as has been noted by the trial Judge was delegated by the Secretary to the President. It is on the basis of so called delegated authority that the Appellant has been found to be guilty of the offence charged.

Prosecution has not placed any material on record to show the specific duties to be performed either by the President or Secretary of the Society. Assuming for the sake of argument that it was the Secretary who was entrusted the duty dealing with the branch of essential commodities, and the President had nothing to do with such branch, yet so far as criminal acts are concerned, there was dereliction of duty on the part of the President. The case initially as put forth, it was the Chairman of the Society who had lifted 100 bags of atta from Maheswari Mill as admitted by him in his statement recorded u/s 313 Code of Criminal Procedure It was not the prosecution case that the Appellant had conspired with the accused Lakheswar in lifting 100 bags of atta and sold it in surreptitious manner. Admittedly, the Chairman has lifted 100 bags of atta and it was his case that the same was distributed as per rules, but the record as placed before the Court does not support the claim of the Chairman that atta was in fact brought to the Society and distributed to the consumers. The plea taken by the accused Lakheswar made it incumbent upon him to discharge this burden, of course the initial burden lies on the prosecution which never shifts. But if the accused takes a specific plea, it is for him to discharge this onus as onerous as it is. Going through the impugned judgment, learned Special Judge appears to have been sabotaged the statements as made by the Appellant as a witness in his cross-examination. Adverting to the statements, the statement is as follows:

Secretary of the Samittee is to deal with the business of the Samittee and President has not such power until and unless delegated by the Secretary. There is no mention in Ext. A and Ext. A(1) that the stock was verified in making the entry.

The fact that the stock was not shown in the record of the Society, the question of entering the same in record would arise if the stock reaches to the Society. Had it been the prosecution case that the President and the Secretary of the Society conspired together to board and sale it in black market, may be the above statement could have been to some avail to the prosecution. But reading to the complaint and the charge as it is, it would be clear that in fact the prosecution case was that the Chairman on being contacted he did not lift the stock, but he left it with the Mill i.e. 3rd accused Bhowrilal Maheswari in lieu of Rs. 1000/- collected from the said Miller. The cat is out of the bag. The miller might have been taken profit even without supplying the same to the Society and it is the President who has pocketed Rs. 1000/- from the Miller. It was not the prosecution case that the accused Appellant had any hint in the report which has been submitted by the Inspector, Food and Civil Supplies. The Court cannot travel beyond the allegations made in the complaint. This is no appreciation of evidence, in fact, it amounts to a convenient departure from the initial charge as put forth by the prosecution, the impugned judgment suffers from incongruity of reasonings, the conviction as recorded by the trial Court against the accused Appellant does not stand the scrutiny of law, it is liable to be set aside and accordingly set aside. The fine if paid be refunded to the Appellant.