Dhirendra Nath Jana And Another vs The State
2021 Latest Caselaw 4809 Cal

AD. 9.

September 14, 2021.

MNS.

C. R. A. No. 438 of 1989

(Via Video Conference)

Dhirendra Nath Jana and another Vs.

The State

Mr. Dipankar Dandapath

...Amicus Curiae.

Mr. Saswata Gopal Mukherjee, Ms. Faria Hossain

...for the State.

Learned Amicus Curiae contends that there are patent and

inherent discrepancies between the prosecution witnesses not only as

regards the time, when the alleged seizure was made, but also as

regards the quantity seized, as well as whether actually any display

board was found from the shop-in-question.

It is contended that although the complaint indicated that 56

bags of Gur (cattle products) weighing about 50 kgs. each and 24

packets of 'Nishadal" weighing 25 kgs. each were recovered and

there was no board displaying the particulars, as required in law, was

found in the shop premises and the PW1 more or less corroborated

such evidence, it is categorically denied by PW2, the alleged

Zimmadar, in whose custody the seized goods were allegedly kept,

that any such article was kept with the Zimmadar, although he

admitted signing on the Zimmanama.

That apart, two of the local independent witnesses were

declared hostile, who categorically denied the allegations levelled

against the accused persons, specifically stating that a board actually

existed in the shop, on which the particulars of the cattle fodder were

written.

PW4, the other police personnel who was a party to the raid,

on the other hand, stated that 20 basta (gunny bag) of Gur was

seized. That apart, PW6, one of the other constables who was a

party to the raid, stated that Gur (cattle fodder) was kept in some tins.

As such, it is contended that there is gross contradiction in the

prosecution evidence itself.

That apart, PW6, the constable referred to above, also

admitted that a board was actually taken from the grocery shop, but

merely denies that it contained the details and particulars as required

in law. However, it is submitted that such board was never exhibited

by the prosecution.

By placing reliance on the impugned judgment of conviction,

learned counsel further contends that there was no objective

satisfaction recorded by the trial court regarding the commission of

the alleged offences by the accused persons specifically.

Learned counsel appearing for the State contends that there is

nothing on record to show any enmity between the police personnel

and the accused persons, which could have induced the police to

conduct the raid with any mala fide intention.

Moreover, learned counsel submits that there is substantive

corroboration between the evidences of PW1, PW4 and PW6. The

minor discrepancy among the depositions of the other witnesses is

within the normal margin of error due to the lapse of about one year

between the date of the raid and the date of deposition. As such

discrepancies are only natural, it is argued, those only prove the

veracity and truth of the depositions.

It is further contended by learned counsel for the State that

even the witnesses who were declared hostile admitted that the

accused persons were carrying on business of cattle fodder, which

corroborates the prosecution case.

Upon hearing counsel, a mere glance at the deposition of the

prosecution witnesses makes it clear that there was evident inherent

contradiction within such deposition. Not only the number of

containers recovered, but also the quantum of the articles was

recovered and/or even the nature of containers, as stated by the

prosecution witnesses, did not tally with each other. Varied versions

of the same event have come out from different prosecution

witnesses.

While one of the witnesses mentioned bags, another

mentioned tin containers, while others differed on the count of bags

recovered.

That apart, PW6, a part and parcel of the raiding party, clearly

admitted in his cross-examination that a board was actually recovered

from the shop, but sought to explain away such admission on the

count that the board did not contain any particulars as required under

law. However, not only was such evidence squarely contradictory to

the evidence of the other police officers who were produced as

prosecution witnesses, regarding non-existence of any rate board at

the locale, it is clear from the allegations made by the different

prosecution witnesses that there were discrepancies in the description

of the containers containing such articles, which vitiate the veracity of

the prosecution witnesses to the root.

That apart, the judgment of the court below, unfortunately,

does not record a single sentence of satisfaction regarding the

commission of the offences actually alleged against the accused

persons, that is, under Section 7(1)(a)(ii) of the Essential

Commodities Act, 1955. From the materials on record, there is no

corroboration and/or sufficient evidence to incriminate the accused

persons on the charges levelled against them. Although it is doubtful

whether the appellant no. 1, who would be near about a century old

now, if at all alive, and the appellant no. 2, being a septuagenarian at

present, even if posthumously, the conviction and sentence ought to

be decided, if not for any other reasons, but to remove the stigma on

such accused persons.

In view of the above discussions, the conviction and sentence

of the accused persons was patently de hors the law and without

jurisdiction and have to be set aside.

Accordingly, C.R.A. No. 438 of 1989 is allowed, thereby setting

aside the conviction and sentence awarded by the impugned

judgment and order dated September 19, 1989 passed by the Judge,

Special Court (E. C. Act), Hooghly, acquitting the appellants of all the

allegations made against them.

Although the accused persons might have undergone the

sentence awarded long back, in the event they are enlarged on bail at

present, the appellants are discharged from all conditions and bonds

furnished by them, if any, in connection with such bail.

The pro bono assistance provided by the learned Amicus

Curiae is appreciated by this Court.

(Sabyasachi Bhattacharyya, J.)