Prakash Chandra Poddar vs The State Of West Bengal
2022 Latest Caselaw 7481 Cal

11.11. 2022 item No.04 n.b.

ct. no. 551             CRA 183 of 1989

                         Prakash Chandra Poddar
                                 Vs.
                         The State of West Bengal

                 Sk. Hasan Salahauddin Ahmed
                              .....for the appellant.

                 Mr. Narayan Prasad Agarwal,.
                 Mr. Pratick Bose
                                  ... for the State.

This is an appeal under Section 374(2) of the Code of

Criminal Procedure read with Section 12AA of the Essential

Commodities Act, 1955, against an order conviction under

Section 7(1)(a)(ii) of Act X of 1955 for violation of para 3(1) and

(2) of the West Bengal Imported Vegetable Oils (Prohibition of

unauthorized Sale) Order 1984 to suffer R.I. for one year and

to pay a fine of Rs.1000/- i.d. to suffer six months R.I., passed

by the Learned Special Court(E.C. Act) Barasat, North 24-

Parganas on 21.3.1989 in Special Case No. 19 of 1987 arising

out of Barasat P.S. Case No.23(2)/87.

The prosecution case in a nutshell was on 8.2.1987

at about 10.30 a.m. one police personal D. K. Dutta, D.E.O.

Naihati, Santanue Chatterjee S.I. of police Barasat P.S., D.B.

Das S.I. D.E.B, North 24- Parganas raided the grocery shop of

the appellant at Champadali More, Barasat and seized 10

sealed tines of imported refined rapeseed oil and the appellant

fail to produce any licence or permit. Accordingly, police seized

the rapeseed oil by preparing a proper seizure list in presence

of witnesses. Thereafter, arrested the appellant and placed

them in the Thana.

Mr. D. B. Das, S. I. Police conducted the investigation

of this case and after completion of investigation, he submitted

charge sheet against the appellant. The trial was conducted

before the Learned Court below. Prosecution has examined

eight witnesses to bring whom the charge against the

appellant. The defence has examined none: after examination

of the PWs, the appellant was examined under Section 313 of

the Code of Criminal Procedure.

After hearing both the parties learned Special Judge

passed the impugned order convicting the present appellant on

the above mentioned sentences. Being aggrieved by and

dissatisfied with the impugned judgment and sentences the

instant appeal has been preferred.

Learned advocate for the appellant submitted before

this Court that the impugned order passed by the learned

Court below suffers illegality and the judgment and sentence

is without basis. He further argued that the order of sentence

passed by the learned Court below is not on the basis of proper

appreciation of evidences. He argued that the prosecution has

examination eight witnesses among them the PW 2, PW 3 and

PW 6 are the seizure witnesses who specifically stated before

the learned Court below that the Rapeseed tins were seized

near a Culvert. The place of occurrence is a crowded place

and a bus stand; many persons get down from Bus to proceed

Bongaon/Basirhat. The seizure witnesses i.e. PW 2, PW 3 and

PW 6 never stated that the tins were seized from the shop room

of the appellant. But the learned Court below has disbelieved

their statement. He further pointed that the appellant during

his statement recorded under Section 313 of the Code of

Criminal Procedure specifically stated that the seized tins were

recovered from the Culvert near Champadali More. He again

pointed that the learned Court below has not gone through the

evidences properly and come to an erroneous finding. He

again argued that there are miscarriage of justice as the

evidence of seizure witnesses were not believed by the learned

Court below. The admissibility of evidence of police witnesses

cannot be basis of a conviction. He prayed the acquittal of the

appellant.

Learned advocate appearing on behalf of the State

raised strong objection and submitted before this Court that

the learned Court below has scanned all the evidences before

him and his finding as mentioned in the impugned judgment is

proper. He again argued that the learned Court blow has

nothing to disbelieve police witnesses, thus the order and

judgment of learned Court below suffers from illegality. He

again pointed out at his usual fairness that the evidence of

seizure witnesses were need be looked into at the stage. He

also argued that the appellant is suffering mental agony since

last 35 years during the pendency of the instant appeal.

Heard learned advocates perused the impugned order

also perused the seizure list and other connected exhibits in

the LCR. I have also perused the FIR, it appears that the

seizure witnesses i.e. PW 2. P.W. 3 and PW.6 admitted their

presence at the time of seizure, their signature over the seizure

list prove that they were at the place of occurrence at the time

of seizure. They corroborates each other and unequivocally

stated that the rapeseed tins were seized from Calvert not from

the shop room of the appellant. The prosecution did not

declare them hostile and no such cross-examination advanced,

so that the statement of the seizure witnesses cannot be

believe. In the circumstance, the place of seizure appears to

me doubtful. It is true that the seizure has been made and

chemical examination has done to prove the seizure of

rapeseed oil but it is doubtful whether the tins of rapeseed oil

are seized from the shop room of the appellant or near a

Calvart of Champadali More.

The offences under Section 7(1)(a)(ii) of the Essential

Commodities Act is only based upon the seizure and the place

of seizure. In this particular case, the place of seizure is

doubtful. The evidences seizure witnesses not support the

prosecution case. The police witnesses stated in support of the

prosecution case to which they were duty bound.

Considering the circumstance, I am of clear view that

the prosecution has failed to proof the seizure before the

learned below. In this circumstances, as the doubt has been

raised so principally the benefit of doubt goes in favour of the

appellant. I am of the view, the prosecution has filed to prove

the case against the appellant and bring home the charge

against the present appellant beyond reasonable doubt. Thus,

the order of conviction passed by the learned Court below

cannot be sustained at this stage.

The appeal got merit, accordingly, it is liable to

allowed.

In result thereof the instant appeal is allowed. The

order of conviction passed by the learned court below against

the appellant in special case no.19 of 1987 arising out of

Barasat P. S. Case No. 23(2) of 1987 is hereby set aside.

The appellant is acquitted from this case.

The appellant is on bail, he be set at liberty at once.

The appellant is hereby also released from his bail

bonds. The sureties are also released.

The copy of this order be forwarded to the learned

Court below in his information and necessary action.

The appeal is disposed of.

Any order of stay by this Court is also hereby vacated.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

( Subhendu Samanta, J.)