Sunil Kumar Raut. vs State Of West Bengal.

Subhendu Samanta, J

The instant appeal is preferred against a judgment and order dated December 8th 1990 passed by Judge Special Court, Essential Commodities Act, Contai convicting the present appellant u/s 7 (1) (a) (ii) of the Essential Commodities Act 1955 for violation of the provisions of Clause 4 and 35 (a) of the Fertiliser (Control) Order 1985 and sentencing the appellant to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 3000/- in default to suffer further rigorous imprisonment for three months and also directed confiscation of the seized article.

The brief fact of the prosecution case is that on March 18 1989 pursuant to a secret information PW 1, Ashok Kumar Sinha, an inspector of Police, DEB, Medinipur at about 09:45 a.m. along with other police officers, held an inspection at the shop-cum-godown of the appellant. On checking stock-cum-sell-register, the same tallied with the stock written, in the stock board on production of one road challan by the appellant it revealed that 240 bags of ‘Sona’ fertilisers were received by the appellant on March 15, 1989 and on physical verification of stock, 78 bags and 10 Kg of ‘DAP’ fertilisers, 16 and 20 Kg of ‘Super phosphate’, 6 bags and 20 Kg of ‘Groomer’ fertilisers, 13 bags of ‘Potash’ fertilisers, 5 bags and 10 Kg ‘Sulphate’ and 93 bags of ‘Sona’ fertilisers were found short.

The PW 1 seized the entire stocks and kept the same at the custody of one Tapan Kumar Maity. The appellant was arrested and PW 1 lodged FIR to the Contai Police Station. PW 7 took up investigation and it was ended in charge sheet arising of out of Contai Police Station Case no. 86 of 1989 dated March 18, 1989 u/s 7(1)(a)(ii) of the Essential Commodities Act. Police submitted charge sheet for the violation of provisions of Para 4, 7 and 35 (a), (b) of the Fertiliser Control Order 1985.

The appellants were sent up for trial. During the trial 07 witnesses were examined on behalf of the prosecution and 08 witnesses were examined for the defence. The defence of the appellant was one of innocence and that on the material date and time, he sold fertilisers to the customers and due to heavy rash and inspection held by the police cash memo could not issued to the witnesses and there was no shortage as alleged. After recording the depositions and after hearing the argument of both sides, the Learned Special Judge, has convicted the present appellant and by passing of impugned order of sentence.

Hence this appeal.

Learned Advocate for the appellant submitted before this court that the impugned order of conviction passed by the Learned Special Judge, is completely erroneous and illegal in the attending facts and circumstances of this case. The Learned Special Judge has erroneously believed the interested PW witnesses while he did not disbelieved the evidences of DWs. It is the further argument of the appellant that the PW 2 and PW 3 of this case has corroborated to the defence case but still then the order of conviction was passed by the Learned Special Judge. He further argued that the Learned Special Judge has failed to appreciate the probative value of the defence witnesses thus there is a miscarriage of justice. He further pointed out that at the day of inspection there was a ‘Hat- bar’ consequently a heavy rash was there for purchasing fertilisers. At that time the appellant could not give the purchasers proper Cash-memos. The purchasers appeared before the Learned Special Judge, as Dws and they filed affidavits in support of their statement to the effect that on the day of inspection, they have purchased the fertilisers but no Cash- memos was handed over to them. The evidence of defence witnesses become uncontroverted by the prosecution but the Learned Court has disbelieved the statement. On the basis of above argument Learned Advocate, for the appellant submitted that the impugned order of conviction and sentence passed by the Learned Special Judge, liable to be set aside.

Learned Advocate appearing on behalf of the state submitted before this court that the impugned order passed by the Learned Special Judge is very much maintainable. During the course of inspection the DEB officers found shortage in the stocks thus the offence was committed by the appellant under Para 4 and Para 35 of the Fertiliser (Control) Order 1985. He further argued that the order of conviction and sentence passed by the Learned Special Judge is on the basis of appreciation of evidences. The Learned Special Judge, has meticulously discussed each and every evidence of prosecution and defence. After scanning the evidences the impugned order of conviction was passed; it is a speaking order, so the appeal is liable to be dismissed.

Heard the Learned Advocate perused the materials on record. I have also perused the Para 4 and 35 (i) of the fertiliser control Order 1985. It appears that though the charge sheet was submitted against the appellant for violation of Para 4 and Para 7, Para 35(a) and (b) of the Fertiliser Control Order 1985 but the special Judge has convicted the appellant for violation of Para 4 and Para 35 (a) of the Fertiliser Control Order 1985.

The whole crux of the prosecution case is that during the inspection some shortage of fertiliser is found in the stocks; to justify the shortage, the defence is pleaded that on the auspicious day there was ‘Hat- bar’ in the locality and huge quantity of fertiliser was sold to the defence witnesses without cash memo.

Let me consider whether the evidence of prosecution is justified to prove the acquisition of the appellant in the alleged offence or whether the appellant was successfully to prove his defence plea before the Learned Special Judge.

To prove the prosecution case the prosecution produced 7 witnesses including the de- facto- complainant PW 1 and I.O. that is PW 7. PW 1 being the de- facto- complainant prove the factum of seizure and FIR. It is uncontroverted that the seizure was made and FIR was filed by the PW 1, PW 2 is the local seizure witness who also identified his signature over the seizure list as well as the seized document. During the examination of the PW 2 he stated that on the day of raid there was ‘Hat bar’ and many customers were there at the time of raid. He also stated that several cash memos were issued to the customers just before arrival of the police party, the purchase bags of fertilisers were taken towards the canal to carry the same through the small boat. PW 2 also stated that he personally did not count the seized bags of fertilisers. PW 3 is a local seizure witness to prove his LTI over the seizure memo and seized documents. PW 3 also stated that there were several customers waiting outside the shop room to receive their cash memos but the police did not allow them to enter into the shop. He voluntarily stated himself purchased and carry the bag of fertilisers to the boat without cash memo.

In considering the fact of seizure in this case, seizure was made by the PW 1 in presence of other 04 witnesses; but it become uncertain whether the seized articles were at all measured or not. Learned special judge, has noticed the same but it is the observation that the bags of fertiliser were intact so their weight can be easily assessed as 50 K.G., thus there is no discrepancy. But on physical verification of the seizure list and the FIR it appears that some measurement of some KGs of fertilisers were also mentioned in the seizure list. How such KGs weigh was mentioned in the seizure list without actual measuring the same. No witness either PW 1 or PW 2 or PW 3 in even the PW 7, I.O stated that seized items were at all measured in any point of investigation, inquiry or inspection.

To prove the offence enumerated under Para 4 and 35 (a) of the Fertiliser Control Order 1985, the prosecution is to prove that there was discrepancies in display of stock position and price lists of the fertilisers. Para 4 (a) Fertiliser Control Order 1985 is read as follows:

“Display of stock position and price list of fertilisers.

Every dealer, who makes or offers to make a retail sale of any fertilisers, shall prominently display in his place of business,---

(a) The quantities of opening stock of different fertilisers held by him on each day; Explanation – The actual stocks at any point of time during the day may be different from that of the displayed opening stocks to the extent of sale and receipt of such fertilisers up to the time of inspection during the day”.

The Control Order itself mentioned that the actual stock at any point of time during the day may different from that of the displayed opening stocks to the extent of sale and receipt of such fertilisers up to the time of inspection during the day.

Thus it is clear, the order itself indicates a fact that at the time of inspection on the business day the stock and displayed him vary. In this particular case the defence has specifically pointed out that on the auspicious day there was ‘Hat- bar’ thus several fertilisers were sold out without cash memo due to rash hour. The inspection was conducted on the business house that is on 09: 45 A.M. the DWs not only appeared before the special judge but they made an affidavit to prove the fact that they have received the fertilisers but without cash memo.

Considering the circumstances the Learned Special Judge has noticed the situation but did not believe the evidence of DWs on the ground that they may be interested the witnesses.

Considering the entire circumstances it is observed that the evidence of prosecution that is PW 2, PW 3 actually supports the defence case. It is a fact of the case that there was shortage in the actual stock of fertiliser shop of the appellant but the explanation to that cause was successfully proved by defence witnesses. The learned Special Judge has committed error for not believing the statement of DWs when they appear with an affidavit before the Learned Court.

The weighment of seized fertiliser was never made by the PW 1 or by the PW 7 thus the seizure appears to me not believable.

In the attending facts and circumstances of this case it appears to me that prosecution had no explanation to disbelieve the veracity of defence witnesses. Hence, prosecution failed to bring home the charge against the Accused / appellant in this case beyond reasonable doubt.

Considering the situations and considering the materials on record I am of a view the impugned judgment and sentence passed by the Learned Special Judge is erroneous.

The prosecution had failed to prove the case beyond reasonable doubt on the attending facts and circumstances of this case. I find probative value in the evidences adduced by the defence. Thus I find to entertain the instant appeal.

CRA is allowed.

The impugned Order of conviction and sentence passed by the Learned Special Judge in ECA case no. 1989 dated December 08, 1990 is hereby set aside.

The appellant is acquitted from the case. The appellant is on bail, he be set at liberty at once.

The sureties standing in his favour are also discharge.

Connected CRAN Applications if any are also disposed of. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.