Mrinal Kanti Biswas & Anr vs State Of West Bengal
2021 Latest Caselaw 3411 Cal

               IN THE HIGH COURT AT CALCUTTA
              CRIMINAL APPELLATE JURISDICTION
                       APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

CRA 368 of 1988 (Via Video Conference)

Mrinal Kanti Biswas & Anr.

-vs.-

                        State of West Bengal

For the Appellants             :     Mr. Navanil De,
                                     (Appointed by the Calcutta High Court
                                     Legal Aid Services Authority)


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

Heard on                       :     03.06.2021


Judgment on                    :     25th June, 2021.



Tirthankar Ghosh, J:-

The present revisional application has been preferred against the

judgment and order dated 18.07.1988 passed by the Learned Judge, Special

Court (E.C, Act), Nadia, in connection with E.C. Case No. 14/1988

(corresponding to T.R. No. 30/1988) wherein the Learned Trial Court was

pleased to hold the appellant guilty for commission of offence punishable

under Section 7 (i) (a) (ii) of the Essential Commodities Act for violating the

provisions of para 3(3) of the West Bengal Pulses, Edible Oil Seeds Order,

1978 and sentenced the petitioner to suffer rigorous imprisonment for one

year and to pay fine of Rs. 500/- i.d. to suffer R.I for 3 months.

The prosecution case in brief is that on or about 20.04.1988 in

between 11.30 am to 12.30 pm the complainant, D.E.O, Santipur along with

other officers and witnesses inspected the godown of the appellant No.1

when it was found that the appellant No. 2 was dealing with business in the

shop and on query the appellant No. 2 failed to produce any licence or

permit for the business of the said articles. It has been alleged that the

Chhola and Arahar in huge quantity beyond permissible limit were stored in

the godown of the appellant No.1 and no stock register, sale register or cash

memo book in support of the same were available or could be produced by

the appellant. Further, the rate-cum-stock board was not maintained in the

said shop. Accordingly, the articles found in the shop were seized under a

proper seizure list and was kept in the jimma of a third person and the case

was started for violation of the Government Orders.

On completion of investigation, Police Authority filed a report under

Section 173 of the Code of Criminal Procedure. The Learned Special Court

after taking cognizance of the offence was pleased to examine appellants

under Section 251 of the Code of Criminal Procedure to which they pleaded

not guilty and claimed to be tried.

The prosecution in order to prove its case relied upon PW1, Dhirendra

Nath Raha; PW2, Manaranjan Roy; PW3, Dilip Majumdar; PW4, Kartik

Chandra Sen and PW5, Amit Kumar Choudhury. The prosecution also relied

upon four documents which were marked as Exhibits being the two seizure

list, complaint and the formal FIR. The appellants were thereafter, examined

under Section 313 of the Code of Criminal Procedure and the Learned Trial

Court thereafter, called upon the defence to produce its witnesses.

PW1, Dhirendra Nath Raha, in his examination-in-chief deposed that

he is a Sub-inspector of police and on 20.04.1988 he along with other

officers and personnel of D.E.O. had been to Tangra Bazar and inspected the

grocery shop of accused Manaranjan Biswas (to be read as Mrinal Kanti

Biswas). At that time the other accused was present in the shop dealing with

business. According to him on demand by the D.E.B Officer the accused

failed to produce any register or licence relating to his business and no rate-

cum-stock board was found displayed in the shop of the accused. Lastly, he

submitted that the D.E.O Officer seized the articles found in the shop of the

accused and the seized articles were kept in the Jimma of a third person.

In cross-examination, the witness denied of having not accompanying

the raiding party or that the appellant No. 2 was at his owngrocery shop.

PW2, Manaranjan Roy, deposed that he is a resident of Tangra Bazar,

P.S. Hanskhali. The witness was declared hostile. The witness identified his

signature in the seizure list which was marked as Exbt.1 and he also

deposed that he signed the seizure list after the seizure of the articles in the

shop after preparation of the seizure list.

In Cross-examination, he stated that the appellant and his father

owns 25/30 bighas of land and the articles which were seized was from the

residential quarter of the appellant No. 1 and the same were never weighed.

He added that the appellant No. 2 is the cousin of the appellant No. 1 and

used to stay at the appellant No. 1's house.

PW3, Dilip Majumdar; is also resident of Tangra Bazar within P.S

Hanskhali. He also identified his signature as a witness in the seizure list

which was marked as Exbt.1/1. This witness also stated that he signed on

the seizure list after preparation of the same and recovery of articles at the

shop of the appellant No. 1.

In cross-examination, he stated that the seizure list was not signed by

him after perusing the same and reiterated the facts in the same manner as

PW2.

PW4, Kartick Chandra Sen, was Sub-inspector of Police attached to

D.E.B, Nadia. He deposed that on 20.04.1988 he along with other officials

inspected the grocery shop of the appellant Mrinal Biswas and stated that

Subhas Adya (appellant No. 2) was the employee of the appellant No. 1 and

was present at the shop. On query the appellant No. 2 failed to produce any

licence, permit or any document or any register in support of running his

business. He also stated that the rate-cum-stock board was not displayed at

the shop and as such the articles found in the shop were seized by

preparing seizure list. The witness further stated that he prepared the

seizure list and the same was also signed by him which was marked as

Exbt. 1/ 2 and the signature was marked as Exbt. 1/3. He added that

weighment of the articles were made but no weighment chart was prepared.

Quantities in the bags contained full in capacity. The witness also signed

the seizure list and the appellant No. 2 received a copy of the seizure list by

signing the same which was marked as Exbt. 1/ 4. The articles, which were

seized, were kept in the custody (Jimma) of one Manaranjan Roy. The said

jimma was marked as Exbt. 2 and the signature was marked as Exbt. 2/1.

The written complaint was lodged at the police station after arresting the

appellant No. 2 which was marked as Exbt.3 and the signature as Exbt.

3/1. On completion of investigation, the witness submitted charge-sheet

before the Court against the present appellant. The witness thereafter,

described the manner in which he examined the different witnesses in

connection with the instant case.

In cross-examination, the witness denied of not weighing the raw-

materials. The witness denied of not having seen the appellant No. 2 in the

shop. The witness expressed his ignorance regarding the quantity of land

which was owned by the appellant No. 1 or his family member.

PW5, Amit kumar Choudhury, is a Sub-inspector of Police attached to

Hanskhali Police Station; who deposed that he was a Duty Officer of the

police station at the relevant point of the time and as such he prepared the

formal FIR with his own handwriting and signed the same. The formal FIR

was marked as Exbt. 4 and the signature of the witness was marked as

Exbt. 4/1. He stated that after the same was prepared Hanskhali Police

Station Case No. 7 dated 20.04.1988 was registered for investigation.

Mr. Navanil De, Learned Advocate, appearing for the appellant stated

that the violation complained of by the prosecution has not been proved and

the materials are wanting for convicting the appellants. Learned Advocate

submits that the subject matter being recovery of pulses were not a part of a

commercial transaction but were agricultural produce and the Investigating

Authority vindictively implicated the petitioner in the instant case. He

emphasized that in order to convict, the Court must have materials at least

to hold the appellants guilty of the offence and thereafter, sentence them.

Learned Advocate criticizes the order of the Trial Court and submitted that

the Trial Court arrived at a perverse finding which was bereft of any material

particulars.

Mr. Swapan Banerjee, Learned Advocate appearing for the State of

West Bengal, supports the judgment and order of conviction and sentence

passed by the Learned Trial Court and submitted that the Essential

Commodities Act has repercussions so far as the availability of necessary

goods in the market are concerned and it is related with the society at large.

He adds that the evidence so collected by the prosecution would go to show

that the appellants were operating business without any valid licence and

were storing goods in violation of control order. Further, documents relating

to regular transaction were not available which shows that the appellants

have no respect for law and were not lawfully carrying on the business and

as such are liable to be punished.

In this case, the prosecution has relied upon 5 witnesses out of the

said 5 witnesses, the prosecution witness No. 2 and 3 were seizure list

witnesses who did not support the prosecution case and in fact diluted

search and seizure by stating that the goods were seized from the residential

quarter and not from any shop and the same were never weighed. PW5 is a

formal witness who has simply filled up the formal part of the F.I.R as he

was the Duty Officer at the relevant point of time, the said witnesses has

candidly stated before the Court that he did not witness the search and

seizure and has no personal knowledge regarding the case. Thus, the two

witnesses whose evidence are to be considered are PW1 and PW 4 and the 4

documents which were relied upon by the prosecution in evidence. The 4

documents so relied upon are the 2 seizure list, the complaint and the

formal F.I.R. Complaint and formal F.I.R would be of evidentiary value only

when the said seizure list can be accepted to be sacrosanct. In this case, the

2 seizure list witnesses were declared hostile. It is a settled principle of law

that the evidence of a hostile witness can be relied upon. However, in this

case, the part of the evidence where the seizure list was marked as exhibit in

the cross-examination by the prosecution, it is seen that the witness has

stated the seizure list was signed after the same was prepared by the

Investigation Officer and in cross-examination by the defence he has said

that the articles were recovered from the residential quarter of the accused

and the accused and his father possessed about 25/30 bighas of land.

Similarly, PW3 while proving his signature in the seizure list stated that

pulses of different types were recovered from the residential quarter of the

accused and the family had 25/30 bighas of land. The PW3 emphasized that

the land belonging to the accused and his father were adjacent to his land.

In this case, we do not find that the prosecution in evidence has been

able to prove the place of seizure as to whether the same happens to be a

shop or a place where the agricultural products are kept. No evidence has

been taken from the responsible officials of the Government as to whether

there was any Trade Licence for carrying out any shop or from the

concerned department of the Government regarding the place of ownership

of the shop premises or if the same was rented a statement of the landlord.

The person on whose Jimma the goods were kept was also not examined,

neither any customer was examined to show that any commercial activity

was carried on at the premises where the raid was conducted.

I have considered the evidence and appreciated the same in its totality

and having regard to the materials which have been relied upon by the

prosecution, I am of the view that both the oral evidence as well as

documentary so relied upon are insufficient to arrive at a finding regarding

the seizure as well as the business being carried out at the shop premises so

alleged. Having regard to the same I am further of the view that it would be

unsafe to rely upon such evidence and come to a finding of guilt.

As such the judgment and order dated 18.07.1988 passed by the

Learned Judge, Special Court (E.C. Act), Nadia, in connection with E.C.

Case No. 14/1988 (corresponding to T.R. No. 30/1988) calls for interference

by this Court and the same as such is set aside.

Accordingly, the petitioners are acquitted from the charges, if they are

on bail and they should be discharged from their bail bonds.

Accordingly, CRA 368 of 1988 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.)