Birendra Prasad Shaw vs The State Of West Bengal
2022 Latest Caselaw 5294 Cal

                                     1


                    IN THE HIGH COURT AT CALCUTTA

                     (Criminal Appellate Jurisdiction)

                            APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                            CRA 227 of 1990

                          Birendra Prasad Shaw

                                    Vs.

                        The State of West Bengal.



For the Appellant            : Mr. Biplab Mitra,

                              Mr. Swapan Mallick.

                              Ms. Sudeshna Das.



For the State                : Mr. Narayan Prasad Agarwal,

                               Ms. Manisha Sharma.



Heard on                     : 30.06.2022

Judgment on                   : 11.08.2022
                                          2


Shampa Dutt (Paul), J.:

      This appeal has been preferred against judgment and order dated

12.04.1990

passed by Sri S. Raha the Learned Judge, Special Court (E.C. Act),

Alipore, South 24 Parganas in Special Case No. 7 (7) 87 convicting thereby the

appellant under Section 7(1)(a)(ii) of the Essential Commodities, 1955 for

violation of para 3 of the West Bengal Sugar Dealer Licensing Order, 1980 and

sentencing him to suffer imprisonment for three (3) months and to pay fine of

Rupees Five Hundred and in default to suffer imprisonment for a month and

further directed that the articles seized be confiscated to the State.

The prosecution case is that on 07.07.1987 the grocery shop of the

accused Jagannath Shaw was inspected by the D.E.B. staff in order to work

out a source information. At that time accused Jagannath Shaw was not

present but his son appellant/accused Birendra Prasad Shaw was in charge of

the shop. On inspection 10 quintals 73 kgs of sugar in 13 bags were found in

the shop for which no license or authority or document could be produced by

the accused Birendra Prasad Shaw. The stock and rate board was also found

blank in respect of stock and rate. Accordingly charge u/s 7(1)(a)(ii) of Act X/55

for violating paragraph 3 of West Bengal Sugar Dealer Licensing Order, 1980

and para 3(2) of West Bengal Declaration of Stock and Prices of Essential

Commodities Order, 1977 was leveled against the accused persons who

pleaded not guilty.

The prosecution examined seven witnesses.

The defence case was of false implication and innocence.

On conclusion of trial the appellant was convicted as referred above.

Mr. Biplab Mitra, Ld. Lawyer for the appellant has argued that the

complainant (PW 7) in this case also investigated the case and submitted

chargesheet and the said Act is against the principle of natural justice and

caused prejudice to the appellant. He has further submitted that PW 1 did not

know the quantity of the articles seized and also has stated that the articles

seized were not weighed in his presence. It is further submitted that PW 2,

(seizure witness) has stated that seizure was complete before he arrived and he

put his signature as per direction of the D.E.B. Officer. No seizure or

weighment of the sugar was done in his presence and as such neither the

seizure list nor the quantum of sugar seized was proved by the prosecution.

Measuring scale and weights were also not seized. The seized articles were not

produced before the court by the prosecution. The independent witnesses being

PW 1, 2 and 3 have not supported the prosecution case. That the Trial Judge

erroneously did not take into consideration the provisions of West Bengal

Sugar (temporary provisions regarding price control and restriction on sale)

Order, 1980 which indicates that in a business of grocery as in the present

case, no license is necessary for purchase/store of sugar under the West

Bengal Sugar Dealer Licensing Order, 1980. It is further submitted that storage

of food grains is not an offence under Section 7(1)(a)(ii) of the Essential

Commodities Act, as in the present control order there is no provision for

raising a statutory presumption that storage beyond limit would mean that the

same was for the purpose of sale. The Ld. Trial Judge wrongly assessed the

evidence and came to an erroneous finding and convicted the appellant. As

such the order of judgment and conviction should be set aside and the

appellant should be acquitted of all charge as framed.

Mr. Narayan Prasad Agarwal, Ld. Additional Public Prosecutor has

submitted that there is absolutely no reason to disbelieve the prosecution

witnesses. It has been further submitted that the Ld. Trial Judge rightly held

that sugar found in the godown of the grocery shop of Jagannath Shaw was 10

quintals 73 kgs on 07.07.1987. The stock and rate board though has not been

produced before the court but there has been a violation of para 3 of West

Bengal Sugar Dealer Licensing Order, 1980. It is stated that the Ld. Trial Court

rightly held that the appellant was found present in the shop and was

conducting the business and as such he was found guilty of violating the

provisions of para 3 of the West Bengal Sugar Dealer Licensing Order, 1980

and was rightly found guilty and convicted under Section 7(1)(a)(ii) of the Act of

1955 and sentenced accordingly. The appeal is thus liable to be dismissed.

Evidence on record

Prosecution witness no. 1 Sukumar Prosad Shaw on oath has stated

that he is a person who was given the Zimma of the seized articles. His

signature has been marked Exhibit 1. But he could not tell the exact quantum

of sugar seized and on being cross examined has stated that the articles were

not weighed in his presence and has stated that only 13 bags of sugar was in

his Zimma. But he has not brought the articles to court.

Prosecution witness no. 2 Mojammel Haque is a seizure witness, his

signature has been marked Exhibit 2, his signature on the weighment chart

(Exhibit 3). Extract of rate and stock board (Exhibit 4). This witness also does

not remember the quantum of seized sugar and on being cross examined has

stated that he put his signature as per the asking of the D.E.B. Officer.

Prosecution witness no. 4 Paresh Nath Giri is watcher constable

bearing no. 5479 of D.E.B., South 24 Parganas. He accompanied S.I.

S.K.Ganguly for the said raid and has stated that more than 10 quintals of

sugar was seized from the shop of the appellant. It is seen that this witness

though has stated that he was part of the raiding team. Surprisingly he is not

a seizure witness to the seizure in this case.

Prosecution witness no. 5 Shri Bimal Chandra Biswas is the Recording

Officer.

Prosecution witness no. 6 S.I. K.P.Banerjee accompanied S.I. S.K.Ganguly

and other police personnel for the raid and they found the appellant running

the shop where 10 quintals and 73 kgs of sugar was found without any valid

papers. This witness states that S.I. S.K.Ganguly conducted the inspection,

weighed the sugar and seized the articles, gave it in Zimma. Surprisingly, this

witness is also not a seizure witness to the alleged seizure as stated by him.

Prosecution witness no. 7 S.K.Ganguly was the S.I. of police attached to E.B.

West Bengal on 07.07.1987. He was posted at D.E.B., South 24 Parganas. He

led the raid on the said date.

On serving a copy of notice demanding production of books of account in

respect of the sugar (Exhibit 6) upon the appellant he found 10 quintals 73 kgs

of sugar in 13 bags inside the shop. This witness has stated that the sugar was

seized in presence of witnesses as the appellant could not produce any books of

account or license. He has further stated that the seizure was made after

weighment inside the shop with the weighing scale of the shop and preparation

of a weighment chart in presence of witnesses. He has proved the seizure list

(Exhibit 2/2), weighment chart (Exhibit 3/2). He also has stated that sugar and

trade license and one blank black, red and stock board was seized (Exhibit

4/2). This witness has proved the written complaint filed by him (Exhibit

5/2). He has categorically stated in his evidence that he took charge of the

investigation in this case and conducted the said investigation and also

submitted chargesheet against the appellant and his father Jagannath Shaw

the owner of the shop (acquitted). On being cross examined he has stated that

he examined witnesses in this case and has also admitted that the case was

not endorsed to him for investigation by any superior officer. None of the

articles or documents allegedly seized was produced before the court.

LIST OF DOCUMENTS/ARTICLES ADMITTED IN EVIDENC ON BEHALF OF

COMPLAINANT/APPLICANT/ACCUSED/OPPOSITE PARTY.

Distinguishing       Description    of          Date     of   Whether admitted     Remarks
mark or number.      documents/articl           admission     after or without
                     es.                                      objection
    Exhibit 1        Signature on the           09.02.1990     Without objection    PW 1
                     carbon copy of the
                     Jimbanama.
    Exhibit 2        Signature       on   the   09.02.1990          -Do-            PW 2
                     seizure list.
    Exhibit 3        Signature       on   the   09.02.1990          -Do-            PW 2
                     weighment chart.
    Exhibit 4        Signature       on   the   09.02.1990          -Do-            PW 2
                     extract   of      stock
                     board (copy).
   Exhibit 3/1       Signature       on   the   09.02.1990          -Do-            PW 3
                     weighment chart.
   Exhibit 2/1       Signature       on   the   09.02.1990          -Do-            PW 3
                     seizure list.
   Exhibit 4/1       Signature       on   the   09.02.1990          -Do-            PW 3
                     extract   of      stock
                     board (copy).
    Exhibit 5        F.I.R.                     12.03.1990          -Do -           PW 5
   Exhibit 5/1       Endorsement          on    12.03.1990          -Do-            PW 5
                     the             written
                     complaint.
    Exhibit 6        Notice          (carbon    22.03.1990    Without objection     PW 7
                     copy)
 Exhibit illegible   Seizure list                    -Do-           -Do-            PW 7
 (tone condition)
   Exhibit 3/2       Weighment chart                 -Do-           -Do-            PW 7
   Exhibit 4/2       Extract of        stock         -Do-           -Do-            PW 7
                     and rate board





Analysis of evidence

Ld. Lawyer for the appellant has relied upon a ruling Bhagwan Singh

Vs. The State of Rajasthan, cited in AIR 1976 Supreme Court 985,

wherein the Court held:-

"Now, ordinarily this Court does not interfere with concurrent findings of fact reached by the trial Court and the High Court on an appreciation of the evidence. But this is one of those rare and exceptional cases where we find that several important circumstances have not been taken into account by the trial Court and the High Court and that has resulted in serious miscarriage of justice calling for interference from the Court. We may first refer to a rather disturbing feature of this case. It is indeed such an unusual feature that it is quite surprising that it should have escaped the notice of the trial Court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant or complainant who lodged the first information Report for taking action against the appellant. It is difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation? In fact, Head Constable Ram Singh, being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been

offered and who lodged the First Information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case."

Admittedly Prosecution witness no. 7 S.I. S.K.Ganguly on the date of

incident (07.07.1987) was posted at D.E.B., South 24 Parganas. In his evidence

on oath before the court he has categorically stated that he conducted the raid

in the present case and on completion of the inspection, raid, seizure, he filed

the written complaint in his own handwriting and signature marked Exhibit

5/2. Thus, he is the complainant in this case. He has also further stated that

he took up the charge of the investigation in this case, conducted investigation

and submitted chargesheet without any endorsement of any superior officer

endorsing the case to him for investigation. As such it is found that the

complainant himself without any orders of his superior officer took up the

investigation of a case in which he is the complainant and the said conduct

is totally against the judgment of the Supreme Court as referred to above.

Wherein the court clearly held that "this was an infirmity which was bound

to reflect on the credibility of the prosecution case".

In the present case it is further seen that no article allegedly seized was

produced before the court.

Prosecution witness no. 1 who was given the seized article on Zimma

has deposed that the articles were not weighed in his presence and that he was

given only 13 bags of sugar in his Zimma.

Prosecution witness no. 2 though is a seizure witness. He does not

remember the quantum of the seized sugar and has admitted that he put his

signature on the seizure list as per the asking of the D.E.B. Officer (PW 7).

Prosecution witness no. 4 and Prosecution witness no. 6 have stated

that they accompanied the complainant for the raid, where sugar was seized

from the shop of the appellant but they are not seizure witnesses.

As such it is found that the seizure witnesses in this case do not

know the quantum of the sugar seized and PW 2 has signed as per

direction of the complainant PW 7. The witnesses who allegedly

accompanied the complainant during the raid and who stated about the

quantity of sugar seized are not seizure witnesses. As such the oral

evidence adduced in this case is not substantiated by documentary evidence

and the evidence adduced in court is not of any substantial value considering

the nature of the evidence as discussed above.

The prosecution could not prove the seizure of the quantity seized as

alleged nor could they prove before the court through the witnesses as to the

quantity seized because of the fact that the witnesses who stated about the

quantity seized are not seizure witnesses and the witnesses who are seizure

witnesses have stated that they did not see the quantum of the sugar seized.

As such there is absolutely no witness in support of the prosecution.

Admittedly the alleged owner was acquitted by the Trial Court. It is the

appellant who was allegedly in the shop at the time of alleged raid has been

convicted. It is seen from the judgment under appeal that the Trial Judge

found no reason to disbelieve the witnesses including the complainant-cum-

investigating officer. It is totally on the uncorroborated oral evidence of the

witnesses on which the Trial Court has relied. Though the witnesses have not

supported the seizure, the Trial Judge held the quantum as stated by the

complainant as true and without any proper analysis of the evidence on record

before the Trial Court without any proper reasoning, came to the finding that

there has been a violation of para 3 of the West Bengal Sugar Dealer Licensing

Order, 1980 by the appellant/accused. The Trial Court also came to the finding

that the acquitted accused was not actively concerned in running the business

and was thus entitled to acquittal.

Conclusion

Considering the facts and evidence as discussed above, it is found that

the investigation in this case was conducted in a biased manner with the

purpose to see that the appellant is convicted as the Investigating Officer

himself is the complainant. This has thus vitiated the trial and has also caused

serious miscarriage of justice as the principle of natural justice has not been

followed and on this ground alone the order of conviction and sentence should

be set aside and as per the lines of the Supreme Court in AIR 1976 Supreme

Court, 985, Bhagwan Singh Vs. State of Rajasthan "this was an infirmity

which was bound to reflect on the credibility of the prosecution case".

.

In addition the evidence on record also do not justify the order of

conviction as the prosecution has clearly not proved, their charge against the

appellant by way of either oral or documentary evidence before the Trial Court

and as such these facts do not justify the order of conviction and accordingly

the impugned judgment suffers from inherent illegality and is thus liable to be

set aside.

The appeal thus stands allowed. The appellant is accordingly acquitted

of all charge and discharged/released from his Bail bond.

Let a copy of this judgment along with the lower court records be sent

down to the trial court immediately.

Urgent Photostat Certified copy of this Judgment, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

(Shampa Dutt (Paul), J.)