Budhadeb Mondal And Anr vs The State Of West Bengal
2022 Latest Caselaw 7304 Cal

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                    IN THE HIGH COURT AT CALCUTTA

                     (Criminal Appellate Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                               CRA 464 of 1989

                          Budhadeb Mondal and Anr.

                                      Vs.

                          The State of West Bengal.




For the Appellant             : Ms. Pranati Goswami.



For the State                 : Mr. Subham Bhakat.



Heard on                      : 25.08.2022

Judgment on                   : 01.11.2022




Shampa Dutt (Paul), J.:

     This appeal is against an order of conviction under Section 7(1) (a) (ii) of

the Essential Commodities Act for violation of para 3(1) (2) of West Bengal
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Imported Vegetable Oils (Prohibition of unauthorized sale) order 1984 and

sentence to suffer rigorous imprisonment for 3 months and to pay a fine of Rs.

500/- each in default to suffer further rigorous imprisonment for 15 days

passed by the learned Judge, Special Court (E.C. Act), Midnapore by judgment

and order dated the 17th November, 1989 in D.E.B.G.R. Case No. 44 of 1987.


        The prosecution case in short is that on 15.10.1987 at 13.45 hour the

complainant A.D. Bhuniya, S.I. of Police and his party had been to the grocery

shop of the appellant and seized three tins of rapeseed oil from front of the

shop. One Kanchan Chowdhury and others reported that the accuseds were

selling rapeseed oil without licence. The complainant then filed a complaint

with Debra Police Station for offence punishable under Secton 7 (1) (a) (ii) of

Essential Commodities Act 10 of 1955 for violating the provision of para 13 (a)

(b) of the West Bengal Pulses Edible Oil Seeds (Edible Oils) Licensing Order,

1978.


        Vide order no. 23 dated 14.06.1989, accused persons were examined

under Section 251 Cr.P.C. for having committed offence punishable under

Section 7(1) (a) (ii) of Essential Commodities Act of 1955 for violating the

provision of para 3 of the West Bengal Imported Vegetable Oil (Prohibition of

unauthorized sale) Order, 1984 to which the accuseds pleaded 'not guilty' and

were put on trial and convicted and sentenced as above.


             Ms. Pranati Goswami, learned Advocate for the appellant has

submitted that the conviction is bad in law. It is further argued that the
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learned Judge was wrong to find that the appellants were in possession of the

seized tins of rapeseed oil, contrary to the evidence on record.


      The learned Judge failed to consider that the evidence on record shows

that the three tins of oil were not seized by the Police from the shop of the

appellants but they were seized from the shop of Krishnagopal Das.


      The learned Judge failed to consider that the evidence of P.Ws. 2 and 3 to

the effect that "our men again brought back those three tins of rapeseed oil on

the Verandah of the shop of the accused from the shop of Krishnagopal Das

and thereafter Police came there and seized those tins. When the Police came

on the shop, shop of the accused was closed".


      The learned Judge failed to consider the evidence of PW 10 to the effect

that "Police seized those three tins from the shop of Krishnagopal Das.


      The learned Judge failed to consider the evidence of PW 11, the

Investigating Officer to the effect that "during investigation I did not find any oil

in the shop of the accused".


      That the judgment and order under appeal thus being not in accordance

with law, is liable to be set aside.


      Mr. Subham Bhakat, learned Counsel for the State has submitted that

the appellants were examined under Section 251 of the Cr.P.C. under

appropriate Acts and also committed in accordance with law and as such the

appeal is liable to be dismissed.
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      It is seen that though the complaint was filed under Section 7(1) (a) (ii) of

the Essential Commodities Act, 1955 for violation of para 13 (a) (b) of the West

Bengal Pulses Edible Oil Seeds (Edible Oils) Licensing Order, 1978, the plea

(u/s 251 Cr.P.C.) and conviction is under Section 7(1) (a) (ii) of the Essential

Commodities Act, 1955 for violation of para 3 (1) (2) of the West Bengal

Imported Vegetable Oils (Prohibition of unauthorized sale Order, 1984) and

conviction was also under the said Acts.


Evidence on record


      Prosecution witness no. 1 Sub-Inspector Amulladhan Bhunia is the

complainant on 15.10.1987. He went to the grocery shop of the accused on

receiving information and found 3 tins of rapeseed oil in sealed condition

on the Verandah attached to the shop of the accused. This witness had

stated that the tins were intercepted by Kanchan Chowdhury, Madhab and

others. They stated to him that the accuseds were selling rapeseed oil and

were caught red handed by them. It is argued that the three tins were

produced by the accused on the asking of Kanchan Chowdhury and others.


      This witness did not find the accuseds in the shop. He then seized the

three oil tins from the Verandah of the shop of the accuseds, which were kept

by Kanchan and others.


      Prosecution witness no. 2 Gouranga Das has deposed that on

14.10.1987

at 6.30 p.m. when he was sitting in a tea stall near the shop of the

accuseds, he saw some Maity going with one tin of rapeseed oil from the shop

of the accuseds. Madhab Bhunia, Panchayet Member came and allegedly

brought two tins of rapeseed oil from inside the shop of the accused. They kept

the three tins of rapeseed oil in the shop of one Krishnagopal Das as it was

night (6 p.m.) (Police Station was only 4kms. away) and informed Police on next

date. Next day Police (PW 1) came and seized the tins. This witness has stated

that he, Kanchan, Madhab are supporters of the then ruling political party and

the accuseds are of the rival party. He has stated in his cross examination that

"before Police came on the spot, we kept those three tins of rapeseed oils

in the shop of Krishnagopal Das. Our men again brought back those three

tins of rapeseed oil on the Verandah of the shop of the accuseds from the

shop of Krishnagopal Das and thereafter Police came there and seized

those tins. When Police came on the spot, shop of the accuseds was

closed".

Prosecution witness no. 3 Pradip Sen has corroborated the evidence of

PW 2.

Prosecution witness no. 4 Krishnagopal Das has also corroborated the

statements of PW 2 and 3 and has admitted that on the day Police came, he

took the three tins of rapeseed oil, kept with him by Kanchan, Madhab and

others and they placed them on the Verandah of the shop of the accuseds

when Police came next day.

Independent witness Prosecution witness no. 5 Jaydeb Dolai and

Prosecution witness no. 6 Bijoy Krishna Maity have not supported the

prosecution case.

Prosecution witness no. 7 Badal Kr. Mandal has deposed that "on

15.11(?).1987 when Police came in the shop of the accuseds, I was present

there. Sahadeb Mandal is the brother of the accused Bhudhadeb Mandal. On

15.11(?).1987 when I was in the shop of the accuseds, Sahadeb Mandal was

also there. At that time Police Officers searched the shop of the accuseds in

presence of myself and Sahadeb Mandal. During search Sahadeb Mandal

produced one food licence of that shop before the Police Officer. Thereafter

Police Officer seized that licence and prepared one list on which I signed".

No such seizure list or licence was produced before the Court by the

prosecution. The date of incident is 15.10.1987 and no seizure list has been

proved by this witness.

Prosecution witness no. 8 Narayan Ch. Maity is the person, who

allegedly took a tin of refined oil after purchasing from the shop of the accused,

when it was intercepted by Gouranga Das and Pradip Das. On being cross

examined he has admitted that before that date he had never purchased any

article from that shop and that his house is 3 kms away from the shop.

The learned Trial Judge thus did not believe this witness considering his

evidence and also did not rely on his statement.

Prosecution witness no. 9 Madhab Bhunia and Prosecution witness

no. 10 Kanchan Chowdhury have both corroborated the evidence of the other

witnesses.

Prosecution witness no. 11 Ganesh Chandra Mazumdar is

Investigating Officer. He has deposed that he had submitted a prayer for

confiscation of the seized property.

But notice as required to be served under Section 6 D of the Essential

Commodities Act, 1955 has not been proved. This witness has stated that

during investigation, he did not find any oil in the shop of the accuseds.

Exhibit 6 is the Chemical Examination Report showing positive results

for refined rapeseed oil as per specification in PFA Rules.

Analysis of evidence

Section 5 of the West Bengal Imported Vegetable Oils (Prohibition of

unauthorized sale) Order, 1984 lays down the provision for initiation of a

proceeding under this Act.

"5. Powers of entry, search, seizure etc.

(1) Any officer of the department of Food and Supplies of the Government of West Bengal not below in the rank of Sub-Inspector or any police officer not below in the Sub-Inspector may, with a view to securing compliance with the provisions of this order, enter, inspect and search any premises, places, vehicles or vessels and seize any stock of imported vegetable oils along with the packages,

covering or receptacles in which such stock is found and the animals, vehicles, vessels, or other conveyances used in carrying such stocks if he has reasons to believe that any provisions of this order has been, is being or is about to be contravened, in respect of such stock or any part thereof.

(2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to search and seizure under this paragraph."

Section 100 of the Code of Criminal Procedure, 1973 lays down:-

"100. Persons in charge of closed place to allow search.

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub- section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall

call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-

section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 )."

From the said provisions relating to search and seizure in these case, it

is seen that Exhibit 1 series (Seizure list) shows the place of seizure as "Radha

Mohanpur Bajar" and from whom seized as "Grocery shop of Basudeb Mondal".

Though all the witnesses including the complainant have deposed that the tins

were seized from the Verandah of the shop of the accuseds and the three tins

were brought by the witnesses to the seizure, from the shop of Krishnagopal

Das (PW 4). The tins were allegedly taken by the witnesses to the seizure from

the shop of the accused the previous day (14.10.1987). They informed the

Police, who came next day (15.10.1987) and seized the tins from the

Verandah of the shop of the accused, where it was kept by bringing them

from the shop of PW 4, where it was kept the previous day. The shop of the

accuseds was admittedly closed and the accused persons were not present. The

Police Officer also did not attempt to enter the shop of the accused persons. No

independent witnesses have been made witness to the seizure. The witnesses

in this case the persons, who allegedly had collected the tins of rapeseed oil

from the shop of the accused person and informed the Police are the seizure

witnesses and considering their action in this case, they cannot be called

Independent witnesses (Section 100 (4) Cr.P.C.). It is these witnesses who have

initiated this case by collecting the tins of oil. From the said provisions as to

powers of entry, search and seizure, it is clear that the Police (complainant) did

not act as per the said provisions.

It is clear from the evidence on record that the officer conducting

the inspection, search and seizure did not do so as per the said

provisions. The complainant came, did not enter any premises, found the

tins of rapeseed oil being brought from the shop of the Krishnagopal Das

(PW 4) by the seizure witnesses, Kanchan and Madhab and seized the

same saying that seizure was made from the shop of the accused. Whereas

it is admitted that the shop was closed, accuseds were not present and the

three tins were kept in the Verandah of the shop of the accuseds, where it was

brought by seizure witnesses (Kanchan & Madhab) from the shop of

Krishnagopal Das (PW 4) which Kanchan and Madhab had kept, allegedly

taking from the shop of the accuseds. So the seizure in this case is clearly not

in accordance with the relevant provisions of law. There was no entry in any

premises, nor any search. Only seizure as stated above. The written complaint

was also filed for offence under the Wrong Act - under West Bengal Pulses,

Edible Oil Seeds and Edible Oils (Dealers licensing) Order, 1978 and not under

West Bengal Imported Vegetable Oils (Prohibition of unauthorized sale) Order,

1984, the relevant Act by plea and conviction was under the appropriate Act.

Conclusion

The initiation of the proceedings in this case is in clear violation of the

relevant provisions of law as discussed and no seizure has been made from the

accused persons as per the relevant provisions of law. The evidence as to entry,

search and seizure being completely against the relevant provisions of law, the

findings of the Trial Court being erroneous and not in accordance with law is

thus liable to be set aside as there has been serious miscarriage of justice.

The appeal is thus allowed.

The appellants are accordingly acquitted of all charge and

discharged/released from their 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.)