Raj Kumar Ram vs The State of West Bengal

Ishan Chandra Das, J.—1. Assailing the judgment and order of conviction dated 29.12.1990 passed by learned Judge, Special Court (under the E.C. Act) Malda in D.G.R. Case No. 20/1988 (Special Court Case No. 17/1988), the present appeal has been preferred where learned trial Court found the appellant guilty of the offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act (Act X of 1955) 1955 for violation of the Rule 18 of West Bengal Rice and Paddy (Licensing and Control) order, 1967 and sentenced him to suffer Rigorous Imprisonment for 3 months and to pay a fine of Rs. 250/- in default to suffer Rigorous Imprisonment for one month more.

Briefly stated, the case of the prosecution was that on 14.07.1988 at 11.30 a.m. following a secret information about the illegal storage of huge quantity of paddy at the godown of the appellant at Tulsihatta, S.I. P.T. Bhutia, D.E.O. Harishchandrapur P.S. Camp being accompanied by some police officers and members of the force, held raid in the said godown and recovered 88 bags of paddy weighing 66 quintals from the godown. The appellant who was found in the godown on their demand produced certain blank documents including a blank letter of authority of M/s. Puratanhat Rice Mill, Nibujinagar (Burdwan), signed by one Nagarmal Sarma, proprietor of the said Rice Mill and stated that he had purchased and stored paddy being employed by the said Rice Mill for the Rice Mill at Burdwan. The appellant failed to produce any license or authority for storing the paddy at his godown, though stock or price board was displayed at the godown. The appellant was allegedly found to have contravened the Rule 18 of West Bengal Rice and Paddy (Licensing and Control) order, 1967, being punishable under Section 7(1)(a)(ii) of the Act X of 1955. The police officer (S.I. P.T. Bhutia) holding such raid instantly seized such paddy and documents produced before him on preparation of a Seizure List in presence of the local witnesses, apprehended the appellant therefrom, lodged the written complaint before the police station against the appellant as well as the Proprietor Nagarmal Sarma and he himself took up investigation of this case, prayed before the competent authority for confiscation of the property and on completion of investigation he submitted charge-sheet against the appellant only, though he prayed for discharge of other accused persons including said Nagarmal Sarma. Ultimately the charge-sheet was accepted, cognizance was taken against the appellant for allegedly committing the offence and after conclusion of trial, on examination of 8 witnesses (6 witnesses for the prosecution and 2 for the defence) learned trial Court found the appellant guilty of the offence of violation of paragraph 18 of the West Bengal Rice and Paddy (Licensing and Control) order, 1967 and sentenced him to suffer Rigorous Imprisonment for 3 months and to pay a fine of Rs. 250/- in default to suffer Rigorous Imprisonment for one month (for one count of offence), punishable under Section 7(1)(a)(ii) of the Essential Commodities Act of 1955, as noted earlier.

Questing the legality and Propriety of the order of conviction, the present appeal has been preferred mainly on the following grounds:--

"(1) The appellant was seriously prejudiced as the PW-5 who was the F.I.R. maker investigated the case and cognizance was taken on the basis of charge-sheet submitted by him.

(2) Learned trial Court failed to appreciate that the appellant having the letter issued by Nagarmal Sharma, Proprietor of M/S. Puratanhat Rice Mill (in his possession) for the purpose of mobile purchase of paddy from different places of the district (Malda) on behalf of the said Rice Mill for despatching the same to the said Mill at Burdwan.

(3) Learned trial Court was erroneous in holding that the appellant was dealing in purchase and storage of paddy as a dealer or a registered dealer so as to bring him within the ambit of paragraph 18 of the West Bengal Rice & Paddy (Licensing & Control) order, 1967 where he was required to maintain accounts of purchase and storage of paddy.

(4) Since the appellant did not act independently as a dealer, learned trial Judge should not have found the appellant guilty of the offence punishable under Section 7(1)(a)(ii) of the E.C. Act for the alleged violation of Paragraph 18 of the order of 1967.

(5) The finding of learned trial Court being based on erroneous concept of l aw, the same is bad, illegal and the order of conviction is liable to be set aside."

Learned Counsel for the state of West Bengal, at the very outset, while supporting the findings of learned Court below pointed out that the appellant being the agent of a dealer of a Rice Mill contravened the Provision of paragraph 18(1) of the West Bengal Rice and Paddy (Licensing and Control) order, 1967 and learned trial Court was justified in convicting the appellant herein and sentencing him to suffer imprisonment and fine, in terms of the impugned judgment dated 29.12.1990. In this context, the Provisions of paragraph 18 of the West Bengal Rice and Paddy (Licensing and Control) order, 1967 is quoted below for Critical analysis of the same:--

"18. Accounts & Returns

(1) Every licensed or registered dealer shall unless exempted by the licensing authority, mainly separately for each place of his business or godown correct and true accounts of purchase, sale and storage of rice or paddy or both to be written up at the end of each day, showing-

(a) the opening stock of the day,

(b) the quantities received during the day,

(c) the quantities delivered or otherwise disposed of during the day,

(d) the closing stock of the day, and

(e) such other particulars as the licensing authority may, by order in writing, specify.

(2) Every licensee shall submit to the licensing authority a return in Form C for every month so as to reach it within seven days of the close of each month."

Learned trial Court in the impugned judgment held that the appellant herein violated the Provisions of paragraph 18 of the Licensing and Control Order of 1967 as he did not maintain any account of his purchase and stock as required in the order itself. It has been submitted on behalf of the prosecution that the appellant was a locally authorized agent of the Mill for mobile purchase of paddy and despatched to the Mill. The appellant was neither a ''licencee'' nor ''a registered dealer'' as provided by paragraph 18 of the said order. Mere fact that the appellant was working as a local agent of the Rice Mill cannot be held liable for the alleged offence. Learned trial Court in the concluding part of the judgment could not ignore the probability of vicarious liability against the Proprietor of the Puratanhat Rice Mill i.e. as an employee of Nagarmal Sarma, the Proprietor of the said Mill. Surprisingly the prosecution instead of accusing said proprietor exonerated him from the liability and implicated his employee with the alleged offence, the reason best known to the authority concerned.

Another important feature of the instant case, as pointed out by learned Counsel for the appellant, was that S.I. P.T. Bhutia (PW-5) who had been to the godown of the appellant, seized paddy therefrom on preparation of a Seizure List, arrested the accused/appellant, lodged the written complaint, took up investigation, examined witnesses and submitted charge-sheet against the appellant. Criticizing the findings of learned Court below in this regard learned Counsel for the appellant further urged that learned trial Court though aware of such defects in investigation but he registered conviction against his client ignoring the fundamental principles of fair and impartial investigation. To fortify his argument in this respect learned Counsel for the appellant relied on a decision of the Hon''ble Apex Court in Megha Singh v. State of Haryana reported in , A.I.R. 1995 SC 2339 where the Hon''ble Apex Court in a similar circumstances held:--

"We have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr. P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."

Learned Counsel for the appellant placing reliance on the said decision in Megha Singh (supra) opined that his client deserves an order of acquittal on that score alone and on careful consideration of the facts and circumstances of the case, I find substance in his argument and I set aside the order of conviction and sentence passed against the appellant. The appeal thus stands allowed. The appellant is acquitted, discharged from his bail bond and he is set at liberty at once. However considering a line of defence as adopted by the appellant herein, I do not like to pass any order reversing the trial Court''s verdict with regard to confiscation of the seized paddy, rather it stands unaltered, since after a lapse of 28 years, it lost its relevance.

Let a copy of this judgment be sent to the learned Court below along with the LCR at once, for information and necessary compliance.

Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the Advocates for the parties upon compliance with all formalities.