Fatik Chowdhury vs The State Of West Bengal
2023 Latest Caselaw 2230 Cal

03.04. 2023 item No.19 Ali ct. no. 551 CRA 65 of 1990

Fatik Chowdhury Vs.

The State of West Bengal

Mr. Ranadeb Sengupta ............ for the Appellant.

This is an appeal against an order of conviction under

Section 7(i)(a)(ii) of Essential Commodities Act, 1955 passed by

learned Judge, Special Court (Essential Commodities Act), Hooghly

in Special Court Case No. 91 of 1987 thereby sentencing the

accused of rigorous imprisonment for one year and to pay fine of

Rs. 2,000/- in default of suffer further rigorous imprisonment for 3

months.

The brief fact of the case is that the P.W.-1 Shri Ranjit

Kumar Roy being Sub-Inspector of police (EB) West Bengal on the

basis of a source information alongwith his force in between 8.05

hours and 14.00 hours on 16.05.1987 had conducted raid to an

unauthorized coal godown of the appellant in presence of witness at

Kantapukur, P.S.-Magra, District-Hooghly at present of Jhampa,

P.S. Polba, District-Hooghly. On reached there, he issued notice to

the accused for production of licence, stock accounts, cash memo,

sale accounts etc. On physical verification as well as after preparing

weighment chart a huge quantity coal being in the godown, he

found that total 124.40 quintals of different type of coal was

present in the godown and the accused/appellant was selling the

coals to other two persons. As no proper documents were shown by

the appellant the P.W.-1 seized the huge amount of coal alongwith

other materials and the by-cycle of the purchaser by a proper

seizure list. He arrested the present appellant and produced him to

the P.S.

On the basis of the said FIR, the Special case was initiated

against the appellant and after completion of investigation charge-

sheet/final report was submitted and the present appellant was

sent-up for trial. During trial 8 witness were examined on behalf of

the prosecution but defence had adduced no witness. The accused

was examined by the learned Special Judge under Section 313 of

the Criminal Procedure Code.

After hearing the learned P.P. as well as the defence the

impugned order of conviction and sentence was passed. Hence this

appeal.

Learned advocate for the appellant submitted that the

impugned order of conviction passed by the learned Special Judge

is erroneous and in appropriate.

He further argued that the learned Special Judge has

misread and mis-appreciated the facts and circumstances of the

case and came to an erroneous findings. He again argued that the

investigation conducted against the present appellant is without

basis, the evidences as advanced on behalf of the prosecution were

actually not supported the prosecution case.

Learned advocate for the appellant pointed out that P.W.-

2, P.W.-3 and P.W.4 and the police personnel, who were the part of

the raiding party. P.W.-5 is an independent seizure witness, who

identified his signature but actually not supported the prosecution

case. P.W. 6 and P.W.-7 are cited as purchaser at the time of raid

but they were declared hostile by the prosecution. He further

argued the evidences of P.W.8 has no legs to stands upon as he had

no knowledge regarding the location of the alleged godown.

State is not represented during the argument of this case.

However, from the impugned order of conviction, it appears that the

learned Special Judge is of the view that as the raid was conducted

and seizure has been effected from the possession of the present

accused; thus, the offences established against the present

appellant. It is the view of the learned Special Judge that the

opportunity was given to the appellant to adduce evidence; as he

did not adduce the single evidence, thus, he actually admitted his

guilt.

Heard the learned advocate appearing for appellant.

Perused the impugned judgment and order of sentences passed by

the learned Special Judge. It appears that the order of conviction

was also recorded against the appellant for the violation of para 3(2)

of the West Bengal Declaration of Stocks and Prices of Essential

Commodities Order, 1977. From the entire seizure list it appears

that no document was seized regarding the licence of the present

appellant. The prosecution has miserably failed to prove that the

present appellant was actually any point of time hold any licence

for selling of coal or not. Furthermore, during the examination of

the appellant under Section 313 of the Criminal Procedure Code he

specially averted that he was a manager of nearby Chowdhury

Hotel beside the Delhi Road at Jhapa. He never engaged in a

business of selling coal. The prosecution and his witness also did

not stated before this court that any document was seized or

collected by them during the course of investigation that the

appellant had any point of time was engaged in a business of coal.

The evidence of P.W.-5, P.W.-6 and P.W.-7 during their cross

objection discloses that the appellant was a manager of Chowdhury

Hotel. Considering the same, without having any licence of dealer

or stockist in the name of appellant, the violation of para 3(2) of the

West Bengal Declaration of Stocks and Prices of Essential

Commodities Order, 1977 does not arise. No Stock Board was

seized or produce at the time of trial before the court or material

exhibited. Considering the same, I find that the observation of

learned Special Judge regarding the violation of para 3(2) of such

Govt. Order is actually erroneous.

Some police witnesses examined before this court who

supported the prosecution case partially. The seizure regarding

quantity and allied material to deal with the coal have seized but

that it is not proved that the present appellant was actually deal

with the coal business. No single witnesses adduced by the

prosecution that any Cash Memo or no receipt was obtained from

the intending purchaser i.e. P.W.6 and P.W. 7.

Considering the same it appears that the prosecution has

miserably failed to prove the charge sheet against the present

appellant beyond reasonable doubt. In the result thereof the

impugned order of conviction of sentence passed by the learned

Special Judge appears to be not corrected in the present facts and

circumstances of this case.

The instant appeal is appeared to have a merit to

entertain.

The impugned order passed by the learned Special Judge

for conviction of the appellant under the provision of Section

7(1)(a)(ii) of E.C. Act is hereby set aside. The appellant is hereby

acquitted from this case. The sureties standing in his favour of the

appellant are also released. The appellant is on bail. He be set at

liberty.

Accordingly, CRA 65 of 1990 is allowed and disposed of.

Any order of stay passed by this Court during the

continuation of the instant criminal revisional application is also

vacated.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

( Subhendu Samanta, J.)