Madan Dutta vs State of West Bengal

Joymalya Bagchi, J. :- Mr. Pawan Kumar Gupta, learned Advocate, is requested to appear in this matter as amicus curiae as nobody appears on behalf of the appellant.

Mrs. Anasuya Sinha, learned Advocate, who ordinarily appears on behalf of the State, is present in Court and is requested to appear in this matter.

Appeal is directed against judgement and order dated 25.4.1990 passed by learned Judge, Special Court under Essential Commodities Act, Murshidabad in E.C. Case No.138 of 1987 (T.R. No.16 of 1988) convicting the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(2) of the West Bengal Declaration of Stocks and Prices of E. C. Order, 1977 (hereinafter referred to as the Order of 1977) and under Sections 6(2)(a)(d) and 8 of the West Bengal Anti Profiteering Act, 1958 and sentencing him to suffer rigorous imprisonment for four months and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for three months.

The prosecution case, as alleged against the appellant, is to the effect that on 11.12.1987 between 15.15 hours and 17.00 hours P.W.1 along with others inspected the grocery shop of Biswanath Dutta situated at Chunakhali Nimtala. Appellant was conducting the business in the said shop. The inspecting team checked the articles in the shop and did not find any discrepancy. Thereafter the police party went to a godown which was used as a storage for essential commodities. In the godown they found mustard oil and other essential commodities. Appellant could not produce any papers relating to purchase and acquisition of the goods kept in that godown. No stock-cum-rate board was displayed in the godown. During inspection the police officers found 12 tins of mustard oil, some milk powder of foreign origin, coconut oil and matches. The articles were seized under a seizure list. Goods were left in the jimba of the appellant. Thereafter P.W.1 lodged written complaint with Berhampore Police Station. Upon conclusion of investigation charge sheet was filed under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(2) of Order of 1977 and under Section 8 of the West Bengal Anti Profiteering Act, 1958.

Substance of accusation was read over to the appellant who pleaded not guilty and claimed to be tried.

In the course of trial, the prosecution examined as many as four witnesses. The plea of the appellant was one of innocence and false implication. His specific defence was that the stock-cum-rate board was displayed in the shop room and tallied with the goods in the said shop room. Hence, there was no violation of paragraph 3(2) of Order of 1977. In conclusion of trial, the Trial Court while acquitting accused Biswanath Dutta due to lack of evidence convicted and sentenced the appellant, as aforesaid.

Mr. Gupta, learned amicus curiae submitted that the inspection of the shop room revealed that a stock-cum-rate board was displayed in the shop room and, therefore, there was no violation of paragraph 3(2) of the Order of 1977. Hence, conviction and sentence is liable to be set aside.

Mrs. Sinha, learned Advocate appearing for the State submitted that the definition of ''place of business'' under Section 2(e) of the Order of 1977 is an inclusive one which included not only the shop room but also the godown of the appellant and, accordingly, there was violation of the said control order. Appellant was unable to produce any cash memo or document with regard to the licit possession of essential commodities including milk food of foreign origin clearly disclosing violation of Section 8 of the West Bengal Anti Profiteering Act, 1958. Hence, the appeal is liable to be dismissed.

P.W.1 is the leader of the raiding party and the de facto-complainant in the instant case. He deposed that on 11.12.1987 in between 15.15 hours to 17.00 hours he came to the shop of Biswanath Dutta at Chunakali Nimtala under Berhampore Police Station. Appellant was carrying on business in the said shop. The raiding team inspected the shop and did not find any discrepancy. In the godown they found mustard oil and other commodities. Appellant could not produce any paper relating to purchase and acquisition of the goods in the godown. There was no stock-cum-rate board in the godown. Appellant could not produce any cash memo voucher for purchase of goods in the godown. Articles in the godown were seized under a seizure list (Ext. 1). Goods were kept in the jimba of appellant. The appellant was arrested and written complaint was lodged at police station (Ext.2). The formal FIR was drawn up by S.I. Debabrata Majumder (Ext.3). S.I. N. Sarkar investigated the case. In cross-examination he stated that the godown is situated in a room of a house belonging to Harun Rasid Mondal. Appellant unlocked the godown. The godown was not a part of the shop, but is a place of storage of goods.

P.Ws.2 and 4 are independent witnesses of seizure. P.W. 2 stated that the Enforcement Officer raided the grocery shop of the appellant. Then they went to the godown in the house of Harun Rasid Mondal. Appellant was present along with the police officer. He signed on a paper (Ext.1 /2). In cross-examination he stated that the accused kept a portion of their goods in the said room. Appellant ran the shop and brought out the articles from the room as and when necessary.

P.W.4, Harun Rashid Mondal is the owner of the house where the godown is situated. He stated that the accused persons have a grocery shop at Nimtala. Appellant rented a room in his house for godown purposes. One day police came and appellant opened the godown. Police wrote something on paper and he signed the same (Ext. 1 /4). He did not see any stock-cum-rate board displayed there. He did not find any stock book, sale register in the godown. In cross-examination he stated that a board was displayed in the shop and account books were also kept there. The godown was opened for 2/3 days when they require to replenish the stock.

P.W.3 was the Investigating Officer of the case. He investigated the case and filed charge sheet.

I have perused the evidence on record. It is undisputed that there was a stock cum rate board in the shop and it reflected the stock position as in the shop. However, there was no stock cum rate board in the godown maintained by the appellant and the stock position in the godown was not reflected in the stock cum rate board, which was displayed in the shop. The question, therefore, falls for consideration is whether stock cum rate board maintained in the shop room disclosing only the stock position of the shop room would amount to compliance of the requirements of paragraph 3(2) of the Order of 1977. Paragraph 2(e) of the Control Order defines place of business as follows :

"2(e) "place of business" means a place where the books of accounts of a dealer''s business are kept and where orders or offers involving purchase or sale of any essential commodity are received and includes place or places where the dealer stores any essential commodity"

A perusal of the said definition would show that the place of business means not only the place where books of accounts are kept and orders are received, but also place or places where essential commodities are stored. It is possible that the shop room where the dealers carry on business of sale and purchase of essential commodities and the storage room is in the same building or in different premises as in the present case. Paragraph 3(2) of the Control Order reads as follows :

"3(2) Every wholesaler and every retailer shall display conspicuously at a place as near to the entrance of his place of business as possible a list in Form B indicating the opening stock and the wholesale or retail price, as the case may be of each essential commodity held by him on each day."

The aforesaid paragraph requires every wholesaler and retailer to display stock position at a place near the entrance of his place of business indicating the opening stock of each commodity and wholesale and retail price thereof held by him on each day. The requirement of the said Rule, therefore, is that the entire stock of essential commodities in the possession of a wholesaler or retailer must be conspicuously displayed at the entrance of the place of business of the dealer. Such display of essential information relating to stock and price is for the benefit of customers and, therefore, it must definitely be displayed in the shop room where the transactions take place. No doubt, in the instant case stock cum rate board was displayed in the shop room of the appellant. However, such stock cum rate board displayed in the shop room of the appellant merely disclosed the stock position of essential commodities in the said shop room and not in the godown of the appellant. If the appellant considered the shop room and the godown as a composite place of business and displayed the stock cum rate board only at the shop room itself, then it was incumbent upon him to disclose the entire stock kept by him in the shop room as well as the godown in the stock cum rate board. In the alternative, if he construed the godown as an independent place of business, it is incumbent upon him to display a separate stock cum rate board in the said godown. The appellant had not displayed any separate stock cum rate board in the godown and, therefore, it may be inferred that he treated the godown and the shop room as a composite place of business, which necessitated him to disclose the entire stock of essential commodities in the stock cum rate board displayed in the shop. Appellant, however, failed to do so and the stocks of essential commodities in the godown were not reflected in the stock cum rate board displayed by the appellant. This is a clear infraction of paragraph 3(2) of the Order of 1977 and the conviction of the appellant was rightly recorded.

There is also no evidence on record how the appellant procured the essential commodities including milk food of foreign origin and, therefore, the conviction of the appellant under Section 8 of the West Bengal Anti Profiteering Act, 1958 has also been rightly recorded.

Coming to the issue of sentence, I find that the incident occurred three decades ago and there is no criminal antecedent of the appellant. Accordingly, the sentence of the appellant is reduced to rigorous imprisonment for three months and he is directed to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for one month more.

The bailbonds of appellant are cancelled and he is directed to surrender forthwith before the trial court and serve out the sentence in accordance with law.

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

The appeal is, accordingly, disposed of.

Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.

I record my appreciation for the assistance rendered by Mr. Gupta as amicus curiae to this Court for disposing the appeal.