Basudeb Saha & Anr vs The State Of West Bengal
2023 Latest Caselaw 2231 Cal

                                          1


                 IN THE HIGH COURT AT CALCUTTA
                     Criminal Revisional Jurisdiction
Present: -        Hon'ble Mr. Justice Subhendu Samanta.


                          C.R.A. No. - 376 of 1987

                             IN THE MATTER OF

                            Basudeb Saha & Anr.
                                     Vs.
                          The State of West Bengal.


      For the appellant           :            Mr. Milon Mukherjee, Sr. Adv.,

                                               Mr. Aritra Bhattacharya, Adv.,

                                               Mr. Samartajit Sarkar, Adv.




      For the State               :           Mr. Narayan Prasad Agarwal, Adv.,

                                              Mr. Pratick Bose Adv.




      Judgment on                     :          03.04.2023



Subhendu Samanta, J.

The instant appeal has been preferred against the judgment dated 14.08.1987 passed by Learned Judge Special Court, EC Act Nadia in EC Case No. 10 of 1987 corresponding to TR No. 17 of 1987 convicting the present appellants for violation of the provision of Para 3 (2) of West Bengal Declaration of Stock and Prices of Essential Commodities Order 1977 and sentencing them to suffer rigorous imprisonment for 2 years each and to pay a Fine of Rs. 1000/- each in default to suffer further rigorous imprisonment for 6 months each.

The brief fact of the prosecution case is that on 27/05/1987 at about 1800 Hrs. The DEO of offices of Krishnanagar along with force conducted raid to the grocery shop of the accused persons situated at Mezdia Bazar under P.S krishnanagar in presence of witnesses at the time the shop was opened and accused Basudeb Saha was dealing with grocery articles. Daily stock and prices board was hanged and was written up to 12.02.1994 BS. On physical verification it appeared that the opening balance of stock of 'Gur' was less to the physical quantity of 'Gur' present in the shop. It further appeared that 05 quintals and 5 K.G of 'Gur' was excess at the shop. The accused failed to produce stock book, sell register or satisfactory cash memo of such excess stock thus, they have been booked for violation under the provisions of Para 3 (2) of West Bengal Declaration of Stock and Prices of Essential commodities Order 1977 and were arrested.

After completion of investigation charge sheet has been submitted against both of the accused persons and they were sent up for trial. During trial the 5 witnesses were examined on behalf of the prosecution and two witnesses were examined on behalf of the defence.

After hearing the defence as well as the Learned Public Prosecutor, Learned Special Court convicted the present appellants for the offence punishable u/s 7(1) (a) (ii) of EC Act for violation of the provision of the aforesaid Government Order.

Hence, this appeal.

Learned Advocate for the appellant; he submitted before this court that the present appellants are the full brothers. They have separate grocery shop at Mezdia Bazar. They duly maintained the Stock-cum-prices board and also stock register. They have separate trade licence. It was the fact that the shop of appellant Kartick Saha was inspected and at the time their brother Purna Saha was present in the shop. The 'Gur' was seized from the shop of Kartick Saha and it was not weighted. The story to excess 'Gur' was entirely false. It is the further case of the appellant that the independent witness of the seizure did not support the prosecution case, on the other

hand the DWs stated the entire fact and produce the document but the Learned Special Judge, did not consider the same and passed the erroneous order.

It is the further case Learned Advocate for the appellant that the alleged provision of Para 3(2) of the West Bengal Declaration of Stock and Prices of Essential Commodities Order 1977 disclosed about the entry in the stock board regarding the "opening stock". The Learned Court below has failed to appreciate the fact that after opening stock was mentioned in the board some quantities of 'Gur' was reached through transport to the shop of the accused which was purchased from Ravindra Sarani Calcutta. The Learned Court below has failed to appreciate the receipt given by the shop where from the 'Gur' was purchased.

It further appears that the seizure was made in Mezdia Bazar; at that time there were hundreds of local people present but no one was cited as witness in this case; only two person of distant locality was cited as seizure witness.

Learned Advocate for the appellant further pointed out that PW 1 i.e the complainant stated the seizure was made at the shop of Basudeb Saha (appellant no. 1) whereas the investigating officer (PW5) in his cross examination stated the shop in question belong to accused Kartick Saha where accused Basudeb Saha was found dealing with the business in the shop. The independent witnesses stated that the alleged 'Gur' was seized from the shop of Kartick Saha. It is the further argument of the appellant that the Learned Special Judge has misconstrued the evidences of record and came to an erroneous finding thus he prayed for setting aside the conviction and sentenced.

Learned Advocate for the State submitted that the Learned Special Judge after considered the materials on record, passed the order of conviction. The impugned order suffered no illegality. The Order is a reasoned order; thus it cannot be set aside. He also argued that prosecution has successfully proved the case beyond reasonable doubt.

Heard, the Learned Advocate perused the materials on record perused the LCR and the seizure list and other documents exhibited by the Learned Special Judge, during the course of trial. It appears that PW 2 and PW 3 was cited as independent seizure witness in this case. PW 2, PW 3 when appeared before the Learned Special Judge declared hostile, i.e. they did not support the prosecution case. Surprisingly, their alleged signatures obtained in the seizure list and other papers were also not tendered to them during their examination-in-chief.

The prosecution case is only based upon PW 1 and PW 4 and PW 5. The investigating officers created a big doubt on the prosecution case when he stated that the alleged excess 'Gur' was seized from the shop of Kartick Saha. The FIR stated the Seizure was effects at the shop of Basudeb; then why the Kartick Saha appellant no. 2 was made accused in this case. If it can be presumed that both the brothers are owner of the shop then another brother of them why not made accused in this case; no document of ownership of the shop was seized.

It further appears that the independent seizure witnesses as well as the DWs stated there are two separate shop rooms of two accused person. The fact of two shop rooms was reflected from the cross examination of the PW 5. Surprisingly Learned Special Judge, did not consider the fact.

It further appears that one document i.e. the receipt of purchase of 'Gur' marked as an Exhibit C on behalf of the defence witnesses which was not considered by the Learned Special Judge. It is the observation of the Learned Special Judge, that the receipt is a created document; but no reason was assigned while Learned Special Judge, assumed doubt over the Exhibit - C.

In the case of Essential Commodities Act and Violation of Government Order, the seizure is the back bone of the case. In this case seizure list was not proved by the independent witnesses. By preparing a seizure list the criminal liability against accused persons can not be proved effectively.

Order 3(2) of the West Bengal Declaration of Stock of Prices of Essential Commodities Order 77 read as follows:-

3(2) every wholesaler and every retailer shall display conspiqously at a place as near the entries of his place of business has possible a list of Form B indicating opening Stock and the wholesale or retail. Price as the case may be for each Essential Commodity hold by him on each day.

So, from the plain reading of the order it appears that the display of stock shall mentioned only the opening stock. The opening stock in respect of particular case appears to be mentioned in the stock board. It is the evidence of DW that some 'Gur' was purchased from Calcutta and which reached on that date. Consequently the said stock of 'Gur' cannot be mentioned in the board which was written at the morning of each day. The stock of excess 'Gur' has to be listed in the board on the next day. If that be the position, in my view there are no discrepancies in the alleged stock board. It could be believed that if the seizure was affected just after opening of the business and it was found to be excess. Considering the same I find the Learned Court below as well as the investigation conducted by the police is not correctly conducted according to the provision of the Government Order.

In considering the entire facts and circumstances of this case and in considering the materials on record and also after considering the evidences adduced by the prosecution as well as the defence it appears to me that the impugned judgment of conviction and sentence passed by the Learned Special Judge, against the present appellants is erroneous. The prosecution had miserably failed to bring home the charge against the present appellants beyond reasonable doubt.

The Criminal appeal is allowed.

In result thereof the impugned order of conviction and sentence passed by the Learned Special Judge, is set aside. The appellants are hereby acquitted from this case.

The sureties standing in the name of the appellants are hereby also discharged.

CRR is disposed of.

All connected CRAN applications if pending, are disposed of.

Any order of stay passed by this court during the pendency of the instant appeal is hereby vacated.

(Subhendu Samanta, J.)