Sri Raj Kumar Agarwal vs The State Of West Bengal
2023 Latest Caselaw 2483 Cal

                                    1


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


                       C.R.A. No. - 77 of 1987

                       IN THE MATTER OF

                      Sri Raj Kumar Agarwal.
                                Vs.
                     The State of West Bengal.


     For the appellant           :           Ms. Manasi Roy, Adv.,




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

                                            Mr. Pratick Bose Adv.




     Judgment on                        :      12.04.2023



     Subhendu Samanta, J.

The instant appeal has been preferred against the order of

conviction passed by Learned Judge, Special Court, (EC Act)

Hooghly on 9th day of January 1987 in special case no. 158 of

1985 u/s 7(1) a (ii) of the Essential Commodities Act for alleged

contravention of the Para 3(2) of the West Bengal Declaration of

Stock and Prices of Essential Commodities Order 1977 and

sentence the appellant to suffer rigorous imprisonment for a

period of 6 months and also to pay a fine of Rs. 2000/- in

default to suffer further rigorous imprisonment for one month.

The brief fact of the prosecution case is that on the basis

of source information P.W. 1, District Enforcement Officer

along with some force visited and conducted raid at the Mill of

the present appellant under the name and style of Paul Pure

Oil Mill on 05.07.1985.

During the inspection it reveals that the stock of both

Mustered Seeds and Mustered Oil was actually excess than it

was written in the stock board. Appellant was not present, his

employee namely Naren Biswas was present there who did not

give any satisfactory explanation for such excess. Thereafter

PW 1 has seized the Mustered Seeds and Mustered Oil with the

proper seizure list in presence of witness and lodged the

written complaint with the police. On the basis of the

complaint the investigation was conducted and it was ended in

charge sheet. Present appellant was sent up for trial. During

'plea' u/s 251 Cr.P.C. the appellant pleaded innocence.

During trial prosecution has produced 07 witnesses and

exhibited seizure list, stock board, zimmanama, weighment

chart e.t.c. From the defence side only one witness was

examined as DW 1. After completion of trial and after hearing

Learned Public Prosecutor and the Defence Advocate the

impugned order of conviction and sentence was passed by the

Learned Sessions Judge.

Hence this appeal.

Learned Advocate for the appellant submitted before this

court that the impugned order of conviction and sentence

passed by the Learned Special Judge is illegal and improper.

The Learned Special Judge has failed to appreciate the facts

and circumstances of this case and came to an erroneous

finding. Learned Special Judge, should have held that the

stock board usually maintained at the end of the business but

as the raid was conducted during the business hours the stock

was not appeared correctly.

He further pointed out that Learned court below is

misread and misdirected himself in passing the impugned

order for not considering the evidences of DW 1. He further

pointed out that the independent seizure witnesses cannot be

believed as he deposed just opposite to the prosecution case.

He pointed out that the order of conviction on the basis of the

materials available on the record is illegal and liable to be set

aside.

Learned Advocate appearing on behalf of the state

submitted that the PW 1 is the complainant himself who proves

the factum of raid; seizure affected on the date of occurrence.

PW 2 is the independent seizure witnesses who supported the

prosecution case and proved his signature over the seizure list.

PW 3 is the salesmen, PW 4 is the local seizure witness and

other PWs are official witnesses. He pointed out that the case of

the prosecution was successfully proved by the cogent oral and

documentary evidences. The findings of the Learned Special

judge cannot be set aside on the ground that the every pros

and cons of this case was specifically verified and explained by

the Learned Special Judge himself. He further pointed out the

impugned order of conviction and sentence is a speaking order,

so it cannot be set aside.

Heard, the Learned Advocate perused the materials on

record also perused the statement of witnesses. In this

particular case the PW 1 with his party conducted raid at the

business placed of the appellant between 10:00 Hrs. to 13:30

Hrs. Obviously, the time of raid is a business time. During the

raid, PW 1 found that the actual stock in the godown is excess

to that written in the board. During the evidences of PW 2, PW

7 and DWs also from the statement of appellant recorded u/s

313 Cr.P.C. the defence intended to prove the fact that the

rate-cum-stock-board was usually prepared at the end of the

day of the business. It is the positive fact of the defence that

some excess quantity of Mustered Seeds and Mustered Oil had

reached the godown which shall appear written at the board

after the days business is over. It is the submission of the

Learned Advocate for the appellant that the Learned Special

Judge did not consider the said plea of the defence.

I have perused the impugned order. It appears that

Learned Special Judge in passing the impugned order is of view

that no documentary evidence was proved or placed to show

that the rate-cum-stock-board was prepared after the days

business is over. I find no logic in such explanation of Learned

Special Judge. Para 3(2) of the impugned order of 1977 makes

it clear that the board has to be written regarding the "opening

balance".

It is well perceived that if board is written at the opening

of the business, during the entire business hours there may

have some purchase or sale of the commodities by the said

Mill; at the time if one inspect the godwon during the business

hour, the physical stock and the board should not be tallied.

It further appears that during the examination of the

appellant u/s 313Cr.P.C. he submitted some stock of Mustered

Seeds and Mustered Oil has reached to the Mill during the

course of the day. Thus logically discrepancy appeared in the

rate-cum-stock-board have some justification.

It appears from the FIR as well as the evidence of PW1

that during the raid the essential commodities were measured

and weighted by an employee namely Provu Tanti. The said

weighment chart was produced and was exhibited on behalf of

the PW 1. No independent witness or other police witnesses

proved the wighment chart and the prosecution also not

produced the said employee who weighted the essential

commodities the Mustered Seeds and Mustered Oil at the time

of raid.

The independent seizure witness PW3 was tendered by

the prosecution. His signature over the seizure list was not

shown for corroboration or verification. During the cross-

examination he deposed that accounting of the said Mill/Shop

was held at night.

Considering the entire circumstances of this particular

case there exists a strong defence case. The discrepancy

appeared in the rate-cum- stock-board has some justification.

It is a fact that in a case under the Essential Commodities Act

a heavy burden lies upon the accused/appellant to prove the

fact pleaded by him. In this case the appellant has successfully

raised his defence case that the raid was conducted during the

business hours of the Mill for which the physical stock and the

stock written in the board appears to be some discrepancies.

Considering the entire circumstances it appears that in

this case two explanations are available; firstly, that the

prosecution has successfully proved the fact that there are

discrepancies in the rate-cum-stock-board with the actual

stock and; secondly the raid was conducted during the

business hours of the Mill, thus the actual stock is excess to

that of the written in the board.

According to the criminal jurisprudence if any

explanation is favouring the defence, that explanation should

have to be considered to be more weighty.

Considering the facts of this case and considering the

materials on record I find there are merits to entertain the

criminal appeal. The prosecution had not proved the case

against the accused/appellant beyond reasonable doubt.

In result thereof the appeal succeeds; the impugned

order of conviction and sentences passed by the Learned

Special Judge is hereby set aside.

The appellant is hereby acquitted from this case.

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

The sureties standing in his favour are also discharged.

CRA along with connected CRAN applications if any, are

disposed of.

Any order of stay passed by this court during the

continuation of this appeal is hereby also vacated.

(Subhendu Samanta, J.)