Ghanashyam Mondal & Anr vs The State Of West Bengal
2022 Latest Caselaw 3101 Cal

                IN THE HIGH COURT AT CALCUTTA
                  Criminal Appellate Jurisdiction
                          Appellate Side

Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                      C.R.A. 208 of 1993

                    Ghanashyam Mondal & Anr.
                                Vs
                     The State of West Bengal
As Amicus Curiae         :          Ms. Debadrita Mondal


For the State            :          Ms. Mamata Jana


Last Heard on            :          13.05.2022.



Delivered on            :           08.06.2022.


Moushumi Bhattacharya, J.

1. This appeal is against a judgment dated 28.6.1993 of the

Special Court (under E.C. Act) under Section 7(1)(a)(ii) of the

Essential Commodities Act, 1955 for violation of paragraph 11 of The

West Bengal Kerosene Control Order, 1968.

2. The relevant particulars of the case are as follows. The alleged

incident took place on 13.12.1990 at 11.45 hours. As per the First

Information Report of the Sub-Inspector, the appellants, namely

Ghanashyam Mondal and Biswanath Mondal were selling kerosene

oil at a high price to the local people from two drums kept in the

open veranda of their house. One drum had about 175 litres and

other of 75 litres of kerosene oil. The accused persons were produced

before the learned Court on 14.12.1990. The appellant no. 1 was

enlarged on bail on 14.12.1990 and the appellant no. 2 was enlarged

on bail on 27.12.1990. The prosecution examined five witnesses to

prove its case; none of the prosecution witnesses could prima facie

lead evidence in relation to the fact that the appellants were selling

kerosene oil to the local people. Purchasers who allegedly purchased

kerosene oil from the accused were not examined by the prosecution.

3. Upon perusal of the impugned judgment, there are several

other infirmities which are noticed. The appellants were in

possession of two drums of kerosene oil but there is no evidence as

to wherefrom the appellants came in possession of this quantity of

kerosene oil. Further, PW1 being a resident of the village within the

concerned police station in his cross-examination deposed that one

Kshitish Mondal and Satish Mondal live in the house of the appellant

with their children but were however not examined by the

prosecution under Section 311 of the Code of Criminal

Procedure,1973 to verify the factual truth of the allegations. Second,

the impugned judgment fails to take into account the contradictory

deposition given by PW1, PW2 and PW4, being the fellow villagers

and the seizure witness respectively. The cross-examination of PW5,

who proved the endorsement of the S.P, and was authorised to

investigate the case, failed to remember the crucial details including

the name of the person who was given possession of the seized

drums. PW5 could also not remember the colour of the drums and

failed to depose on the distance of the house of the Jimmadar and

the house of the appellants though he went to the house of the

appellants for investigation. It is also significant that the

complainant failed to state the name of the witness or the person

from whom he received the information on the commission of the

alleged offence by the appellants. Further, from the evidence of DW1

(Niranjan Das), it is revealed that on 12.12.1990, that is the day

before the alleged incident, an incident occurred between Achinta

Kumar Das being the brother of Pranab Kumar Das (PW4) and the

daughter of one Jiten Pramanik. On the following day, Achinta

Kumar Das came with police to the house of Jiten Pramanik where

the appellant no. 1 was present. Police arrested the appellant no. 1

from the house of Jiten Pramanik. The evidence further discloses

that there was political tension between PW4 (Jimmadar of the two

drums of kerosene oil) and an eyewitness of the incident and the

appellants.

4. Most significant is the fact that there was no chemical

examination of the seized articles for determining whether the seized

article is inflammable hydrocarbon of average specifications as

defined in paragraph 3(g) of The West Bengal Kerosene Control

Order, 1968. Paragraph 3(g) defines "kerosene" to mean any

inflammable hydrocarbons including any mixture of hydrocarbons

but excluding motor spirit which is made from petroleum and is of

average specifications as given in Schedule I to this Order. Since

there was no chemical examination of the seized articles, the

appellants could not be found guilty of an offence under Section

7(1)(a)(ii) of the Essential Commodities Act, 1955. Further, the cross-

examination of PW5, who endorsed the police case filed under the

Essential Commodities Act, reveals that PW5 did not take any

sample from the seized kerosene oil and hence did not send the

sample of kerosene oil to experts for ascertaining whether the seized

article was in fact kerosene oil or not. In the absence of any such

evidence, the learned Court could not have come to any definite

conclusion that the seized article was kerosene oil or that the

prosecution case was proved on that count. It is also significant that

the seized drums of kerosene oil were not produced in Court and

hence the doubt on the seized article remained and should have

accordingly been resolved in favour of the accused

persons/appellants. There was hence no material evidence before the

learned Court to hold that the prosecution case was proved beyond

reasonable doubt or that the accused persons/appellants acted with

either intention or knowledge.

5. The conclusion arrived at by the learned Court that PW3 (the

seizure witness) seized 250 litres of kerosene oil in two drums from

the possession of the appellants on 13.12.1990 could not have been

based on any evidence before the Court. The question of the

appellants not having any permit or license to possess 250 litres of

kerosene oil would only arise if the seized article was ascertained to

be "kerosene" as defined under The West Bengal Kerosene Control

Order, 1968. Hence, the entire finding of the appellants being in

possession of kerosene oil exceeding 10 litres without a licence and

being liable for conviction under Section 7(1)(a)(ii) of the Essential

Commodities Act for violation of paragraph 11(2) of The Kerosene

Control Order, does not arise.

6. The contentions made on behalf of the State of the FIR and the

evidence of PW3 (seizure witness) or the evidence of PW5 (the

Investigating Officer) for filling up the factual lacunae in the case is

not acceptable since the evidence of these persons did not prove that

the appellants were actually in possession of "kerosene". None of the

depositions relied on by the State point to the fact that any expert

assessment/examination was made to confirm that the seized article

was indeed kerosene as defined under the Control Order, 1968.

7. Considering the factual lacunae in the case and the infirmities

in the conclusions arrived at, this Court sees no reason to sustain

the impugned judgment. The impugned judgment and order dated

28.6.1993 is therefore set aside. The conviction of the appellants of

the same date is also set aside.

8. This court records its appreciation to the learned amicus for

her assistance in the matter.

9. CRA 208 of 1993 is accordingly allowed and disposed of in

terms of the above.

Urgent Photostat certified copies of this judgment, if applied

for, be supplied to the respective parties upon fulfillment of requisite

formalities.

(Moushumi Bhattacharya, J.)