Narayan Chandra Saha vs State Of West Bengal
2021 Latest Caselaw 3132 Cal

               IN THE HIGH COURT AT CALCUTTA
              CRIMINAL APPELLATE JURISDICTION
                       APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

                           CRA 352 of 1987
                         (Via Video Conference)

                        Narayan Chandra Saha
                                  -vs.-
                         State of West Bengal

For the Appellant              :      Mr. Satadru Lahiri,
                                      (Appointed by the Calcutta High Court
                                      Legal Aid Services Authority)

For the State of West Bengal   :      Mr. Swapan Banerjee
                                      Ms. Purnima Ghosh

Heard on                       : 02.06.2021 & 03.06.2021

Judgment on                    :   4th June, 2021.


Tirthankar Ghosh, J:-

      The present appeal has been preferred against the judgment and order

of conviction and sentence dated 30.07.1987 passed by the Learned Judge,

Special Court, (under E.C. Act), Malda in D.E.B.G.R. Case No. 3 of 1986

(corresponding to T.R. No. 2 of 1986) wherein the learned trial Court was

pleased to hold the appellant guilty for contravention of para 5(2) of West

Bengal Licensing of Dealers of Cement and Distribution of Levy Cement

Order 1982 and para 3(2) of the West Bengal Declaration of Stocks and

Prices of the Essential Commodities Order, 1977 and convicted him for the
                                        2


offence punishable under Section 7(1)(a)(ii) of the Essential Commodities

Act, 1955.


        The learned trial Court, thereafter, proceeded to sentence the accused

for 6 (six) months and to pay a fine of Rs. 2,000/- i.d. to suffer R.I. for a

further period of 3 (three) months for the contravention of para 5(2) of West

Bengal Licensing of Dealers of Cement and Distribution of Levy Cement

Order 1982 and also R.I. for 3 (three) months for para 3(2) of the West

Bengal Declaration of Stocks and Prices of the Essential Commodities Order,

1977.


        The genesis of the prosecution case is that on receipt of information

relating to one Narayan Chandra Saha of Bibigram P.s. E.B. Dist Malda who

was storing huge quantity of cement in his godown for clandestine business

in cement without keeping proper account of the same, a raid was

conducted to work out over such information. On 19.03.1986 at about

17.00 hours at the time of raid it was found that huge quantity of cement

was stored for sale. It was alleged that seeing the police/raiding team the

accused Narayan Chandra Saha fled away and did not return. The raiding

party served a notice upon Smt. Bhakti Lata Saha wife of said Narayan

Chandra Saha who received the same but the accused failed to produce any

books of accounts from where it was reflected that the accused had the

authority to deal with cement at the said godown. It was further alleged that

no stock price board was displayed in the godown in respect of the same

which was stored. As such it was alleged that the accused violated the

provisions of para 9 of the West Bengal Licensing of Dealers of Cement and
                                        3


Distribution of Levy Cement Order, 1982 and Para 3 of West Bengal

Declaration of Stocks and Prices and Prices of Essential Commodities Order,

1977 and thus, rendered himself liable for prosecution under Section

7(1)(a)(ii) of the Essential Commodities Act, 1955. As a result of raid 450

bags of cement were seized from two godown in presence of two persons

namely, Monoj Kumar Das and Adhir Kumar Saha who duly attested the

same. Pursuant to such information English Bazar P.S. case no. 14 dated

19.03.1986

was registered for investigation under Section 7(1)(a)(ii) of the

Essential Commodities Act, 1955. On completion of investigation charge-

sheet was filed under Section 7(1)(a)(ii) of the Essential Commodities Act,

1955 for contravention of para 5(2) of West Bengal Licensing of Dealers of

Cement and Distribution of Levy Cement Order, 1982 (hereinafter, referred

to as "Cement Control Order") and for para 3(2) of the West Bengal

Declaration of Stocks and Prices of the Essential Commodities Order, 1977

(hereinafter, referred to as "Declaration of Stock and Prices Order").

The record of the case reflected that the accused pleaded not guilty to

the charges and the prosecution examined 7 witnesses in support of the

case while the defence examined 2 witnesses to rebut the prosecution

evidence. Records also reflect that the accused was examined under Section

313 of the Code of Criminal Procedure prior to the defence evidence being

examined and the learned trial Court on assessment of the evidence of the

case arrived at the aforesaid finding of guilt and sentenced the accused

accordingly (as stated above).

The prosecution in order to proved its case relied on the evidence of

A.K. Som Choudhury (PW1) Sub-inspector of Police; Dwijendra Nath Pandey

(PW2), Assistant Sub-inspector of police attached to English Bazar Police

Station; Monoj Kumar Das (PW3), seizure list witness; Adhir Chandra Saha

(PW4), seizure list witness; Biswajit Bagchi (PW5) Chief Inspector of Food &

Supplies, Malda; K.B. Sarkar (PW6), Sub-inspector of Police and Bhupendra

Chandra Das (PW7), Sub-inspector of Police attached D.E.B. Malda and the

Investigating Officer of the case.

The witness of the defence were one Asit Kumar Sarkar (DW1),

witness who claimed to be the owner of 480 bags of cement for the purpose

of construction of his godown, and Madhususan Poddar an employee of H.K

Roy who deals with non levy cement from whom DW1 purchased 480 bags

of cement.

PW 1 Asit Kumar Som Choudhury is a Sub-inspector of Police

attached to the District Enforcement Office, Malda. He deposed before the

court that on 19.03.1986 he along with D.E.B. Inspector K.K Chakarvorty,

S.I. Bhupendra Das, police Constable Deokant Jha, Sachin Das, A.S.I. D

Pandey went to Bibigram within English Bazar police station at about 5/5-

15 p.m. at the two godowns of the accused Narayan Chandra Saha. Seeing

the raiding team the accused fled away but his wife was present throughout

the search. On search 400 bags of cement were recovered from the eastern

godown and 50 bags of cement from the western godown. According to the

witness there were no stock and price board in the godown or the office and

the wife of the accused failed to produce any document or account books in

respect of the said stock of cement in spite of notice being served upon her.

The said 450 bags of cement were then seized under a seizure list which was

attested by two independent witnesses. On cross-examination the witness

stated that the raid was conducted for about 1-1½ hours and around 7.00

p.m. they left the godown. The witness also denied that there was no seizure

of 450 bags of cement and same did not belong to the accused.

PW2, Dwijendra Nath Pandey, is a Sub-inspector of police attached to

Malda Police Line. He deposed before the court that on 19.03.1986 he along

with D.E.B. Inspector K.K Chakarvorty, S.I. Bhupendra Das, police

Constable Deokant Jha, Sachin Das, Asit Kumar Som Choudhury, Sub-

inspector of Police, Malda went to Bibigram within English Bazar police

station at about 5/5-15 p.m. at the two godowns of the accused Narayan

Chandra Saha. Seeing the raiding team the accused fled away but his wife

was present throughout the search. On search 400 bags of cement were

recovered from the eastern godown and 50 bags of cement from the western

godown. According to the witness there were no stock and price board in the

godown or the office and the wife of the accused failed to show any

document or account books in respect of the said stock of cement in spite of

notice being served upon her. The witness stated that the western godown

had no entrance through the shop and they had to enter the eastern godown

through the shop and the entrance of the shop was south facing. On cross-

examination he stated that no cement was seized from the shop room and

on enquiry from the wife of the accused he came to learn that the accused

fled away on seeing the raiding party. The witness also stated that the

seizure of 450 bags of cement were carried out in the presence of two

independent witnesses.

PW3, Monoj Kumar Das, is a cement dealer having his place of

business at Bibigram within English Bazar town. The witness stated that on

19.03.1986 at about 5.30 p.m. police seized 450 bags of cement in his

presence from the house of the accused Narayan Chandra Saha and at that

time Adhir Chandra Saha and another shop keeper were present. According

to him from the two rooms 450 bags of cement were recovered by the police

and notice was served upon the wife of the accused Narayan Saha who was

not present in the house. The wife of the accused could not produce any

document or books of account. The witness stated that he signed the seizure

list which was marked as Exbt.1/1. The witness Adhir Saha signed in his

presence which was marked as Exbt.1/2. The wife of the accused also

signed in his presence which was marked as Exbt.1/3. The witness also

proved his signature in the zimmanama along with the signatures of Adhir

Saha and the wife of the accused which were marked as Exbt.2/1, Exbt. 2/2

and Exbt. 2/3 respectively. In cross-examination the witness narrated that

the wife of the accused told him that 400 bags of cement found in the

godown belong to Asit Sarkar. There was a board containing entries in front

of the godown wherefrom 50 bags of cement were recovered. The

prosecution was permitted to re-examine the witness wherein he admitted

that neither Asit Sarkar nor any of his family members were present at the

time of seizure of 400 bags of cement. The witness further stated that he did

not see any document to indicate that the 400 bags of cement belonged to

Asit Sarkar.

PW4, Adhir Ch. Saha is a dealer of cement and he claimed that in his

presence 450 bags of cement were seized from the house of the accused

Narayan Chandra Saha on 19.03.1986 at about 6.30 p.m.. He identified his

signature in the seizure list which was marked as Exbt. 1/2. He also proved

his signature in the jimmanama, which was marked as Exbt. 2/2. In his

cross-examination, he stated that he was called by a constable namely

Sachin and these bags were in two different godowns, in one godown there

were 50 bags and in the other godown there were 400 bags.

PW5, Khiti Bhusan Sarkar, is Sub-inspector of Police, who was

attached with English Bazar Police Station on 19.03.1986. He stated that on

19.03.1986 he received a written complaint from S.I. Bhupendra Chandra

Das of D.E.B., Sadar against the accused Narayan Chandra Saha U/s

7(1)(a)(ii) of the E.C. Act and on receipt of the complaint he started E.B.P.S

case No. 14 dated 19.03.1986 and drew up the formal FIR. He identified the

formal FIR along with his signature and endorsement, which was marked as

Exbt.3. He also identified the complaint, which was signed by Bhupendra

Chandra Das, which was marked as Exbt. 4, as also his signed

endorsement, which was marked as Exbt.4/1. In cross-examination, he

stated that he drew up the formal FIR and neither seizure lists were

prepared by him nor any seized articles were produced before him.

PW6, Biswajit Bagchi, was the Chief Inspector of Food and Supplies at

the relevant period of time on 19.03.1986. He deposed that on 04.04.1986

he received a letter from one S.I. B.C. Das seeking certain information,

which information was furnished in the reverse of the said letter. He

identified his signature below the information furnished. The information

and the signature was collectively marked as Exbt.5/1. The contents of the

information was that Narayan Chandra Saha is a licensed dealer of non-levy

cement and his place of business is Bibigram, Word No. XIV, holding No.

94/97, English Bazar Municipality. The information also stated that license

No. CMLD/DM3176 dated 17.11.1984 was valid upto 31.03.1986 and the

said license was obtained in normal course of official business which was

issued from the Office of the District Magistrate. The said license was

marked as Exbt.6. In cross-examination, he stated that he never went to the

godown of accused for any enquiry either before or after the occurrence.

PW7, Bhupendra Chandra Das is D.E.O. Malda. He stated that

on 19.03.1986 he along with S.I. A.K. Som Choudhury, Constable Deokanta

Jha and Constable 258 Sachin Das checked the cement godown of the

accused Narayan Chandra Saha at Bibigram (Ghosh para) within the

jurisdiction of English Bazar Police Station. Seeing the police party the

accused fled away and they found many bags of cement stored in the

godown. The wife of the accused was served with a notice, who signed the

same, which was marked as Exbt.7. The wife of the accused namely, Bhakti

Lata Saha could not produce the license and books of the accounts of the

business and there was no stock and price board in either of the godown.

Two local witnesses namely Monoj Kumar Saha and Adhir Saha were called

and in their presence and in presence of the wife of the accused the godown

was searched when 400 bags of cement was recovered from the eastern

godown and 50 bags of cement from the western godown. Seizure list,

accordingly, was produced by him, which was marked as Exbt.1 and the

signatures which were made in his presence were marked as Exbt. 1/1,

Exbt.1/2 and Exbt.1/3. The said cement was handed over to one Rajendra

Prosad and the jimmanama was also prepared by him, which was marked

as Exbt.2. The witnesses also signed in the said jimmanama which was

marked as Exbt. 2/1, Exbt. 2/2 and Exbt. 2/3. He thereafter lodged FIR

with English Bazar Police Station, the written complaint which contained his

signature was identified by him and was marked as Exbt. 4. On 20.03.1986

the case was endorsed to him by S.P., D.E.B for investigation. He also

applied to the Collector on 21.03.1986 for confiscation of the cement. The

total value of the said cement was assessed as Rs. 31,500/-. The letter

dated 04.04.1986 addressed to the Controller Food and Supplies, was

marked as Exbt. 5. The information which was received by him as

communicated, was marked as Exbt. 5/1. The witness also submitted that

he examined witnesses in connection with the case on 04.04.1986. After

completion of investigation he submitted charge-sheet under Section 7

(1)(a)(ii) of the E.C. Act. In cross-examination, he stated that he had no idea

regarding brand and variety of the cement which was seized or the brand

and variety of the cement which was seized from the two godowns were

same or not. He also denied that the witness Monoj Kumar Das during his

examination stated regarding the presence of the stock and prices board or

that 400 bags of cement which were recovered belonged to one Asit Sarkar.

The witness also expressed his ignorance regarding the fact that Asit Kumar

Sarkar got back 400 bags of cement after the hearing of the confiscation

proceedings as per the order passed by the Additional District Magistrate.

In this Case, we find that the DW1, namely Asit Kumar Sarkar stated

before the Court that he purchased 400 bags of cement and stored them in

holding No. 93/95, Word No. 14, English Bazar Municipality in a godown at

(Ghosh para) Bibigram. He also stated that he purchased the said cement

from H.K. Roy of Hyderpur. He is a dealer of non-levy cement and the said

purchase was made on two dates i.e. 13.03.1986 and 19.03.1986 for 280

bags and 200 bags respectively. According to him, 80 bags of cement were

already used for reconstruction of godown which carried on business of

wheat and wheat products. He produced two cash memos for purchase of

cement on 13.03.1986 and 19.03.1986. He also stated that after the

confiscation proceeding was initiated, he appeared before the collector for

return of cement to him and by his order Additional District Magistrate,

Malda returned the cement to him. As such those 400 bags of cement

belong to him and not to the accused, Narayan Chandra Saha. In cross-

examination, this witness stated that holding No. 93/95 was owned by

Parimal Kr. Saha, who is his business partner. On 19.03.1986 he used to

reside with his wife, parents and children in the house which is at a

distance of about 50 yards from the Holding No. 93/95.

DW2, Madhusudan Poddar is an employee of H.K. Roy who deals in

non-levy cement at Hyderpur, P.S. English Bazar. This witness proved the

writings and signatures in the cash memo, which were market as Exbt. C

and Exbt. C/1. He also brought the cash memo book containing the counter

foils of Exbt. C and Exbt. C/1. The counter foils are carbon copies and they

were marked as Exbt. D and Exbt. D/1. In the cross-examination, he stated

that he is an employee of H.K. Roy for the past 5 years and he denied that

480 bags of cement never supplied to Asit Kumar Sarkar.

I have considered the entire evidence relied upon by the prosecution

and the defence and also considered the examination of the accused under

Section 313 of the Code of Criminal Procedure wherein specific plea has

been taken by the accused that 400 bags of cement which were seized in

connection with the instant case did not belong to him and belonged to one

Asit Kumar Sarkar. The accused categorically also stated that only 50 bags

of cement belong to him. The witness also stated that he was not there in

the house and his wife had no idea regarding the business which was

carried on by him.

On an appreciation of the totality of the facts of the instant case

I find that the fact of 450 bags of cement which were seized from two

godowns were corroborated by the prosecution witness No. 1, 2 and 7, as

such the factum of seizure has been proved, although, the prosecution

witness No. 3 and 4 (who were independent seizure list witnesses) very

weakly supported the prosecution case. In this case the subject matter is

regarding the contravention of the "Cement Control Order" and "Declaration

of Stock and Prices Order". In order to prove such contravention, the

prosecution was duty bound to prove that the 450 bags of cement belonged

to the accused Narayan Chandra Saha. The evidence of the Investigating

Officer reflects that he initiated confiscation proceedings before the Collector

but gave an evasive reply in the cross-examination regarding 400 bags of

cement which were returned to one Asit Kumar Sarkar by the Additional

District Magistrate, Malda who presided over the confiscation proceedings.

The Lower Court record reveals that the certified copy of the order passed by

the Collector has been relied upon wherein the contention of the witness has

been verified and 400 bags of cement were released in favour of Asit Sarkar

on a bond of double amount of the price of cement i.e. Rs. 56,000/-. The

said Asit Sarkar was examined as DW1 who produced relevant memos by

which he purchased the said 400 bags of cement for the purpose of

construction of his warehouse/godown. The factum of claim of Asit Sarkar

regarding the ownership of 400 bags of cement were endorsed by the

Learned Additional District Magistrate and the said ownership was never

challenged before any forum thereafter. The denial and evasive reply of the

Investigating Officer at whose instance the confiscation proceedings were

initiated, therefore, demolishes the claim of the prosecution that all the bags

of cement which were seized belonged to the accused Narayan Chandra

Saha.

Taking into account, the evidentiary value of the witnesses who

supported the prosecution case for the purpose of establishing

contravention of the control orders, I am of the view that it would be unsafe

to rely on their testimony for arriving at a conclusion of guilt so far as the

present accused/appellant is concerned. As such the order of conviction and

sentence dated 30.07.1987 passed by the Learned Judge Special Court

(under E.C. Act), Malda in D.E.B.G.R. Case No. 3 of 1986 (corresponding to

T.R. No. 2 of 1986) arising out of English Bazar Police Station Case No. 14

dated 19.03.1986, under Section 7(1)(a)(ii) of the Essential Commodities Act,

1955 is hereby set aside.

The appellant is thus, acquitted of the charges, if he is on bail he shall

be discharged from the bail bonds.

Accordingly, CRA 352 of 1987 is allowed.

Department is directed to communicate this order to the Ld. Trial

Court and send the LCR forthwith to the Court below.

All parties shall act on the server copies of this judgment duly

downloaded from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)