Nisith Chandra Ghose vs State of West Bengal

N.K. Sen, J.—This Rule is against an order of conviction of the two Petitioners u/s 7 of the Essential Commodities Act for violating para. 5 of Iron and Steel (Control) Order, 1956, by having disposed of 41 tons of iron and steel (untested angles) to Messrs. T.D. Kumar and Brothers (Private) Ltd., without any written order, special or general, of the Controller. They were each sentenced to pay a fine of Rs. 1,000 in default to undergo rigorous imprisonment for one year. There was also an appeal before the Additional Sessions Judge which was dismissed. The Petitioners were tried on two other charges for not having submitted the arrival report and for not submitting a monthly stock return report to the State''s Steel Licencing Authority but they were acquitted.

The prosecution case against the Petitioners is that between the period January 1, 1956 and August 4, 1957, the firm of the Petitioner No. 2 Jyotish Chandra Kundu acquired 2,108 tons of non-sheet iron and steel materials on a permit and sold the entire stock to Messrs. T.D. Kumar and Brothers (Private) Ltd. of which Nishit Chandra Ghosh, Petitioner No. 1, was the Managing Director. The prosecution case relates, however, to the period between September 26, and November 17, 1956, during which period it is alleged the Petitioners had disposed of the entire stock of 41 tons of iron and steel materials (untested angles) to Messrs. T.D. Kumar and Brothers (Private) Ltd., without any written order, general or special, of the Controller.

The defence of the Petitioners, inter alia, was that the arrival report and the monthly stock return report had been duly submitted and in support they produced Exts. B and C to show that the returns had been duly made. Ext. B. is a receipt for the letter from Jyotish Chandra Kundu and Company addressed to the Subdivisional Controller, Food and Supply, Alipore, intimating the arrival of iron and steel materials. Ext. C is the stock statement of the iron and steel materials as on September 30, 1956, showing the stock of 41 tons the subject matter of the case. At the hearing of the case the learned Public Prosecutor accepted the defence exhibits on these charges which were supported by the evidence of Court Witness No. 1 who was the then Subdivisional Controller of Food and Supply, Alipore, and conceded that these two charges were misconceived. The learned Magistrate acquitted the Petitioners of these charges. So far as the third charge is concerned of which the Petitioners were convicted by the trying Magistrate their defence was twofold. Firstly, they denied the disposal itself and alternatively they asserted that even if they had disposed of the materials they were covered by the written authority of the Subdivisional Controller of Food and Supply, Alipore, and as such they had committed no offence.

The Petitioners have not challenged, and on the materials on record they could not have challenged, that they had acquired the materials which are the subject matter of the charge. That is the admitted position and the prosecution has also satisfactorily proved the same. As regards the disposal of the materials in violation of the Iron and Steel Control Order, it is argued before me that the prosecution did not know what its case was. My attention has been drawn to a document purported to be a prosecution report in which it was stated that the Petitioner had disposed of the goods on the basis of the bill dated November 17, 1956 and the case sought to be made out in Court is that they were disposed of on an earlier date. My attention has been drawn to the inconsistent findings arrived at by the Courts below which the learned Advocate for the Petitioners has characterised as irreconcilable and as such the order of conviction could not be maintained. Before dealing with this aspect of the case in further details it is necessary to refer to the objection raised on the maintainability of the case on this document which is called the prosecution report. The Essential Commodities Act by Section 11 provides.

No Court shall take cognisance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as denned in Section 21 of the Indian Penal Code.

On the strength of the decision in the case of A.P. Misra Vs. The State, , it is argued that the document in question though it bears a note "it may kindly be treated as report u/s 11 of the Essential Commodities Act" does not amount to a report in writing as contemplated in Section 11 of the Act. The police officer concerned in his evidence has not even stated that it was such a report. It is submitted that a mere note to that effect as has been made in the charge-sheet in the present case could not alter the character of a document on which cognisance was to be taken. This argument is not without some force but I do not think it is necessary in the facts of the present case to decide this point.

More vital is the objection raised as to the prosecution case regarding the date of disposal of the materials. Prosecution came with a definite charge in the prosecution report that the disposal of the goods was on the basis of the bill dated November 17, 1956. Therefore it would reasonably follow that either on this date or on a subsequent date the goods had been disposed of. In the charge that was framed in the case it is said that the disposal was between September 20, 1956 and November 17, 1956 at 1/D Lake View Road, Calcutta. It is said that this charge is much too vague to deserve any consideration. By widening the period between the two dates the prosecution had clearly given up its case as mentioned in the prosecution report of the disposal on November 17, 1956. The trying Magistrate has found that the stock was brought down to Sibpur Char P.T.R. siding No. 16, and on the September 26, disposed of to T.D. Kumar with the unloading. The Court of appeal below has said that the Petitioners did dispose of the entire stock of 41 tons of iron and steel materials to Messrs. T.D. Kumar and Brothers on or about September 28, 1956. On these two findings the argument is based that the prosecution had hopelessly failed to prove that there was any disposal of the goods. The appellate Court has clearly rejected the case of disposal on November 17, 1956, by coming to the conclusion that it was idle to say that the goods were really disposed of after November 17, 1956.

It is again argued that on the strength of Ext. C the learned Magistrate acquitted the Petitioners of the charge of non-submission of the monthly stock return report to the State Steel Licencing Authority. It was never the prosecution case that Ext. 0 was a faked document, on the other hand the prosecution accepted the correctness of this document. This document is a stock statement of lion & Steel materials as on September 30, 1956. It shows that on September 30, 195G, 41 tons of iron and steel materials were in stock. C.W. 1 Sailendra Nath Chakraborty the then Sub-Divisional Controller of Food and Supply, Alipore. also corroborated the fact stated in Ext. C which bore his signature. It is argued that if the 41 tons of materials were in stock on the September 30, 1956, they could not have been disposed of either on September 26 or 28, 1956, as found by the learned trying Magistrate and the learned Additional Sessions Judge respectively. On behalf of the State Mr. Roy, the learned Deputy Legal Remembrancer, had tried to offer an answer, but in my view he has not been able to give any satisfactory answer to this. It is argued that on September 26, 1956, goods arrived at the P.T.R. siding and on the 28th the wagon was unloaded when delivery was taken by T.D. Kumar and Brothers. Therefore according to Mr. Roy the disposal was on those two dates. As regards the date November 17, 1956, mentioned in the prosecution report the learned trying Magistrate says that nothing was shown by the defence that the stock was with Jyotish Chandra Kundu from the date of receipt on September 25, 1956, till November 17, 1956. The learned Advocate for the Petitioners points out that the trying Magistrate had entirely forgotten the existence of Ext. C, a document which he accepted and on which he acquitted Petitioners of another charge. In my view the learned Magistrate was entirely wrong in his remark in this connection. Mr. Roy the learned Deputy Legal Remembrancer for the State has argued that the charge framed in the case was for illegal disposal between September 26, 1956 and November 17, 1956. By widening the period covered by the charge the prosecution did not really deviate from what was stated in the prosecution report. According to Mr. Roy, November 17, 1956, was simply the date of the bill to cover a disposal that had already been made. In my view this argument of Mr. Roy is a little strained and it will not be a fair to convict a person when the prosecution did not know for certain what its case was. It seems to me that the prosecution came to court with a vacillating mind. The trying Magistrate was entirely oblivious of the fact that he had unhesitatingly accepted, as did the learned Public Prosecutor, that Ext. C was a genuine document. Even after having done so, towards the end of his judgment he remarked that there was nothing to show that the stock was with Jyotish Chandra Kundu from September 26, 1956 to November 30, 1956. In my view no satisfactory explanation has been given by the prosecution to explain that if the stock was held on September 30, 1956, how they could have been disposed of either on September 26 or 28, 1956. One cannot but note with dissatisfaction the remarkable, careless displayed by those in charge of the prosecution of the case and the equally slipshod way in which the courts below dealt with the matter. I am not at all satisfied with the findings arrived at by the courts below as to the date of disposal of the goods.

The learned Judge of the Court of appeal below has commented on the consignment being despatched to T.D. Kumar and Brothers. According to him this would prima facie show that T.D. Kumar and Brothers were the owners of the goods and that the Petitioners disposed of the goods to T.D. Kumar and Brothers completely. This view of the learned Judge, according to me, does not stand to reason. So far back as on September 21, 1954, Ext. 3 was addressed to the Iron and Steel Controller with the instructions "ship to P. T. R. siding No. 16 Salimar Coal Depot. Send railway receipt to. ourselves at 1/D Lake View Road, Calcutta-29". Again Ext. 5 which is a letter from T. D. Kumar & Brothers to the Sales Manager, Tata Iron and Steel Company, Ltd., dated November 9, 1954, states as follows: "A/c Messrs. Jyotish Chandra Kundu. With reference to the above we beg to inform you that we have no objection if the materials against the above are despatched to our P.T.R. siding No. 16 which please note and thereby oblige." The learned Advocate for the Petitioners submits that without the permission of T.D. Kumar and Brothers the goods could not have been despatched to a private siding. It is also argued that if the reasoning of the learned Judge of the Court of appeal below be correct then the goods should be deemed to have been disposed of even in 1954. I am not prepared to take the view that by sending the goods to the P. T. R. siding there was any disposal to T.D. Kumar and Brothers. It cannot be said that simply by instructing the goods to be sent to a private siding the Petitioners had disposed of the same. It will also be seen from Ext. 3 that the instruction on that was "the railway receipt was to be sent to Jyotish Chandra Kundu".

The other points need only be noticed in passing. I have referred to the points not in the order in which they were argued but according to the importance which I attach to them. Both the courts below have referred to the question of onus in Section 14 of the Act. It seems to me that both the courts below have misapplied the basic principle. It must be remembered that the main burden of proof never shifts in spite of any statutory presumption.

The law was lucidly stated in the case of Woolmington v. The Director of Public Prosecutions (1935) A.C. 462. It is only after this initial onus of proof is discharged that the question of it being shifted to the accused arises. It seems to me that both the Courts below proceeded on the wrong assumption that immediately a charge of contravention of an Order is brought, the presumption of u/s 14 would at once arise. Lastly it was argued that the learned Magistrate had no territorial jurisdiction over the offences charged. The courts below have repelled the argument and according to them Sections 177 and 182 of the Code of Criminal Procedure afford a complete answer. On behalf of the Petitioners it is pointed out to me that this argument was advanced at the time when the learned Public Prosecutor in course of his argument gave up the other two charges and contended that the goods had been disposed of at the P.T.R. siding No. 16 beyond the territorial jurisdiction of the trying Magistrate. On this point it must be observed that if initially that Court had jurisdiction to try the offences, it cannot be said that for the simple reason that some of the charges had failed the whole trial would be without jurisdiction. However, it is not necessary to probe into the merits or demerits of the arguments advanced on the point inasmuch as the prosecution has foundered on the charge on which the Petitioners have been convicted. I have stated above in details my reasons for thinking that the prosecution has failed to prove when and how the goods had been disposed of. I am not satisfied that the charge has been brought home to the Petitioners.

In this view the order of conviction and sentences passed on the Petitioners must be set aside and the Rule made absolute. Fines, if paid, will be refunded.

Let the records be sent down to Court below as expeditiously as possible as prayed for by the learned Deputy Legal Remembrancer.