TARAK NATH KESHARI vs STATE OF WEST BENGAL

Judgment and order dated 29.07.1986 passed by Learned Judge, Special Court, Barasat, North 24 Parganas under Essential Commodities Act, in Special Case No. 93 of 1985 convicting the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of the provisions of Paragraphs 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealers Licenccing) Order, 1978(hereinafter referred to as Orders of 1978) and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rupees Rs.1000/- in default to suffer further rigorous imprisonment for three months more has been assailed.

The prosecution case as levelled against the appellant is to the effect that on 20.08.1985at about 11 A.M. P.W.6, D.K. Dutta, S.I. of police attached to D.E.B. Naihati Zone inspected the grocery shop of the accused along with P.W.3, Inspector of police attached to D.E.B. North 24 Parganas and two constables, P.W.4 & P.W.5 respectively. Upon inspection they found mustard oil weighing 605 kg. and vegetable oil 195 kg. in the shop of the appellant. The appellant was present in the shop but failed to produce any licence or permit for carrying on trade in mustard oil or vegetable oil. Upon weighment of the seized oil by P.W.6, he took sample of mustard oil in a bottle. The mustard oil and vegetable oil were also seized under a seizure list (Ext.2/3). It was further alleged that there was no proper display of stock board and price list in the shop. P.W.6 also seized a stock register and trade licence of the shop. F.I.R. was registered at Naihtati P.S. by P.W.6 and P.W.1 A.K. Saha, A.S.I. of police drew up the formal F.I.R and started Naihati P.S. Case No.24 dated 20.08.1985 against the appellant. The appellant was arrested in the course of investigation and on completion of investigation, charge sheet was filed against the appellant. Substance of accusation was read over to the appellant for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(1) of Order 1978 and paragraph 3(2) of West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter referred to as Order of 1977) who pleaded not guilty and claimed to be tried.

In course of trial, prosecution examined 6 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication.

In conclusion of trial, the Trial Court by the impugned judgment and order convicted and sentenced the appellant, as aforesaid.

The appellant was, however, found not guilty for violating of paragraph 3(2) of the Order of 1977.

Nobody appears in support of the appeal, when the matter is called on.

Ms. Anasuya Sinha, learned advocate, is requested to appear in this matter as amicus curiae and assist this court.

Ms. Sinha submits that the independent witness, that is, the prosecution witness no. 2 has not supported the prosecution case. She submits that no chemical examination of the seized sample was made to prove that the same was mustard oil. That apart, it was the clear defence of the appellant that the mustard oil had not been seized from his premises and his signature on the stock register had been forcibly procured at the behest of the police. She also disputed the weighment of the goods. She, therefore, prays for acquittal of the appellant.

On the other hand, Mr. Saryati Dutta, learned advocate for the State, submits that the evidence of official witnesses unequivocally show that the seizure of mustard oil and/or the vegetable oil was above the permissible limit and the same was made from the shop room of the appellant. He further submits that the stock register showed transaction in mustard oil/vegetable oil and the plea that the signature of the appellant was procured under duress is clearly an after thought. He, therefore, prays for dismissal of the appeal.

Let me now consider the evidence on record.

Prosecution witness no. 6 is the leader of the raiding party. He deposed that on August 20, 1985 at about 11-00 a.m., he inspected the grocery shop of the appellant and recovered 800 kilograms of mustard oil and vegetable oil. There were 605 kilograms of mustard oil and 195 kilograms of vegetable oil in the shop. The appellant could not produce any paper or licence in support of possession of such oil. The stock of oil was seized under a seizure list being Exhibit 2/3. He took sample of the seized oil and the remainder of the seized oil was kept in the custody of one Behari Lal Keshari upon execution of a bond being Exhibit 3. He lodged the first information report being Exhibit 1/2. He investigated the offence and submitted charge sheet. He further deposed that as per order of the Sub Divisional Officer, Barrackpore, seized oils were sold and the sale proceeds were deposited. He identified the bottle of sample oil being material exhibit I, which was duly labeled and signed by him. He also identified the seized stock register being material exhibit II containing signature of the appellant. He also identified the seized trade licence in the name of the appellant as Material Exhibit II.

In cross examination, the prosecution witness no. 6 admitted that no weighment chart was prepared. He stated that the weighment was made with the help of scales and weights in the shop. He further stated that the sample of oil was taken from three drums.

The version of the prosecution witness no. 6 has been corroborated by other members of the raiding party, namely, prosecution witnesses no. 3, 4 and 5.

Prosecution witnesses no. 2, namely, Bejoy Talukdar, is an independent witness. He deposed that he has a shop beside the shop of the appellant and seeing the crowd he came to the shop of the appellant. He put his signature on the seizure list being Exhibit 2. He further deposed that he did not read the seizure list at the time of putting his signature.

In cross examination, the prosecution witness no. 2 stated that no weighment of the seized oils had taken place in his presence.

Prosecution witnesses no. 1 received the written complaint from the prosecution witness no. 6 and drew the formal first information report being Exhibit 1/1.

From the evidence on record, it appears that at the time of inspection a large quantity of mustard oil and vegetable oil had been seized from the shop of the appellant. The defence of the appellant is that the said seizure was made in front of his shop and not from his shop room. The appellant has not probabilised such defence by leading evidence. Even the prosecution witness no. 2, the independent witness has not supported the plea of the appellant that the seizure was made in front of his shop room. On the other hand, the cogent evidence of prosecution witness no. 6 and other members of the raiding party is to the effect that the seizure had been effected from the shop room of the appellant. Such version of the official witnesses was corroborated by the entries in the stock register, which contains signatures of the appellant and was exhibited in the instant case. The stock register shows that the appellant was dealing in mustard oil and vegetable oil. Plea of the appellant that his signatures in the stock register were procured under duress is an afterthought raised belatedly in the course of his examination under Section 313 of the Code of Criminal Procedure and does not inspire confidence. There is also evidence on record that weighment of the seized mustard oil and vegetable oil was duly made. The records of the confiscation proceeding also establish that the volume of seized mustard/vegetable oil was much more than the permissible limit.

Hence, I am of the opinion that prosecution has been able to prove its case beyond reasonable doubt and the learned trial judge rightly recorded an order of conviction of the appellant under Section 7(1) (a) (ii) of the Essential Commodities Act for violation of paragraph 3(1) of the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealers'' Licensing) Order, 1978. The conviction recorded against the appellant is, therefore, upheld.

Now, coming to the issue of sentence imposed upon the appellant, I find that the appellant does not have any criminal antecedent and the incident occurred three decades ago.

Accordingly, I modify the sentence imposed upon the appellant and direct that the appellant shall suffer rigorous imprisonment for three (3) months and pay a fine of Rs. 500/- (Rupees five hundred) only in default to suffer rigorous imprisonment for one (1) month more.

The bail bond executed by the appellant stands cancelled. The appellant is directed to surrender before the trial court forthwith and serve out the sentence and pay the fine, as aforesaid, failing which the trial court shall take appropriate steps for execution of sentence and realization of fine in accordance with law.

The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.

With the aforesaid modification, the appeal stands disposed of.

I record my appreciation for the able assistance rendered by Ms. Anasuya Sinha, learned advocate, as amicus curiae in disposing of the appeal.

Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.