Ajit Kumar Pramanik vs State Of West Bengal
2023 Latest Caselaw 4853 Cal

                                  1


              IN THE HIGH COURT AT CALCUTTA
                 Criminal Appellate Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.A. No. - 272 of 1986
                      IN THE MATTER OF

                     Ajit Kumar Pramanik.
                              Vs.
                    State of West Bengal.

For the Appellant          : Mr. Sumanta Chakraborty Adv.,


For the State               : Mr. Narayan Prasad Agarwala, Adv.,
                              Mr. Pratick Bose, Adv.




Judgment on                  :        08.08.2023



Subhendu Samanta, J.

The instant appeal is preferred against a judgment and

order of conviction dated 27.06. 1986 passed by the Learned

Special Judge Alipur convicting the appellant u/s 7(1) (a) (ii) of

the Essential Commodities Act for contravention of West

Bengal Kerosene Control Order 1968 and sentencing him to

suffer rigorous imprisonment for 06 months, further convicting

the appellant for contravention of West Bengal Pulses and

Edible Oil Seeds and Edible Oils (Dealers Licensing Order)

1976 and sentenced him to suffer rigorous imprisonment for

06 months and further convicted the appellant for

contravention of West Bengal Declaration of Stocks and Prices

of Essential Commodities Order 1977 and was sentenced him

to suffer rigorous imprisonment for 03 months, in special case

No. 5(7) of 1984 arising out of Kulpi Police Station case No. 7 of

1994 dated 13.07.1984.

The brief fact of the prosecution case is that-----

On the basis of secret information regarding clandestine

sale of kerosene, Rapseed Oil and other Essential Commodities

in black market from the shop-cum-godown of the appellant

who is a kerosene dealer and a grocer, a raid was conducted on

13.07.1984 between 10:50 and 16:45 hours by the Sub-

Inspector of Police, Enforcement Branch, West Bengal. During

inspection the stock register of kerosene revealed entries

showing 600 litres as the last closing stock of kerosene on

06.07.1984 but there were no entries regarding any sale of

kerosene in the daily sale register since 05.07.1984. On

physical verification no stock of kerosene were found. The

appellant failed to account for the shortage of 600 litres of

kerosene oil which was detected during raid. It was further

alleged that during search of the shop 20 quintals and 80

kilograms of Rapeseed Oil and 1 quintal and 20 Kilograms of

Mustard Oil were also recovered.

The appellant was sent up for trial and during the

framing of charge he pleaded not guilty and claimed to be tried.

It is the specific case of the appellant that he had been to

Calcutta during the material point of time for his illness and for

necessary treatment, due to scarcity of Kerosene in the locality,

under the supervision of Local Gram Prodhan, DW 1 sold the

600 litres of Kerosene to the Ration Card Holders.

During the course of trial the prosecution examined 09

witnesses and the defence has examined one witness. After

hearing the witnesses and after scanning the evidences on

record Learned Special Judge has passed the impugned

judgment and order of conviction against the present appellant.

Hence this appeal.

Learned Advocate submitted before this court that the

order of conviction and sentence passed by the Learned Special

Judge suffers illegality. The Learned Special Judge, has failed

to appreciate the facts and circumstances of this case and

came to an erroneous finding. The Learned Special Judge has

violated the norms of scanning the evidences preferably, the

evidence of DW 1 was not at all considered. The impugned

judgment is based on conjectures and surmises thereby not

sustainable in the eye of law. He again pointed out that the

evidence of so called seizure witnesses does not support the

prosecution case, only official police witnesses i.e. FIR maker

(PW8) and Investigation Officer (PW9) has stated their conduct

before the Learned Special Judge. The evidence of independent

seizure witnesses does not support the prosecution case. The

DW 1 has specifically disclosed the facts and circumstances to

the effect that the 600 litres of kerosene oil was distributed by

local Gram Pradhan through the DW 1, one employee of the

appellant. Thus the FIR in respect of 600 litres of missing

Kerosene Oil is not substantiated. He also argued that the

Learned Tribunal has acted illegally only believing the

statement of Police Witnesses. Thus, he prayed for the order of

acquittal.

Learned Advocate appearing on behalf of the state

submitted before this court that it is true the present appellant

was a holder of a licence. It is also true that the evidences local

witnesses including the seizure witnesses does not support the

prosecution case; but it appears that the stock-cum-rate-board

was not written or maintained properly. Subsequently, the

appellant has proved to be violated the provisions of

declaration of stocks and prices of Essential Commodities

Order 1977. The order of conviction passed by the Learned

Special Judge is not at all maintainable.

Heard the Learned Advocate perused the materials on

record and perused the paper book including the LCR. It

appears to me that the seizure witness including the Local

witnesses does not support the prosecution case. The PW 1 is a

seizure witness who stated that he put his signature over the

seizure list at the P.S. He denied that he saw the police to came

to the shop of the appellant. The PW 1 also not cross examined

or not declared hostile by the prosecution. The other local and

seizure witnesses i.e. PW 2, PW 3, PW 4 & PW 6 also did not

support the prosecution case; but it is surprising that the

prosecution did not declare them hostile or never cross-

examined them. PW 8 is the de- facato complainant who hold

the search and raid at the shop of the appellant on 13.07.1984

at about 10:45 Hrs. It is the case of the prosecution that the

huge quantity of seizure was effected and weightment was

made by preparing a proper list. The seized articles were given

to the jimma to PW 4 and thereafter the appellant was

arrested. The statement of the PW 8 has supported by

documentary evidences which were exhibited before the

Learned Special Judge but the evidence of PW 1 was never

corroborated by any one of the local or seizure witnesses.

During the cross-examination of the PW 8. It appears that he

had no specific explanation regarding the person in presence of

whom the weighment of the Essential Commodities were made.

The Learned Special Judge has appeared to believe the

statement of PW 8 and PW 9, they appears to be police witness.

It is not reasonable to disbelieve the police witnesses, subject

to the fact that their evidence must be convincing,

corroborative and trustworthy. P.W 8 had conducted raid at

the MR Dealer Shop with a police Party; in this case except the

PW 1, no other police personals deposed who accompanied the

PW 1 in such raid. The seizure can not be proved by the

evidence of the person who made the seizure. In this case there

are no witness who saw the procedure of seizure. Considering

the same it appears to me that the seizure in this case is

doubtful.

It appears to me that the prosecution has not bring

home the charge against the appellant beyond reasonable

doubt. Learned Special Judge must have scanned the

evidences of DW 1 to consider the defence case.

Hence, after perusing the materials on record and after

perusing the attending facts and circumstances of this case. I

am of a view that the impugned order of conviction and

sentence passed by the Learned Special Judge suffers illegality

and it is liable to be set aside.

CRA is allowed.

The order of conviction and sentence passed by the

Learned Special Judge, Alipur dated 27.06.1986 in Special

Case No. 5(7) of 1984 is here by set aside.

The appellant is acquitted from this case.

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

Sureties standing in his favour are also released.

Any order of stay passed by this court during the

continuation of the instant appeal is hereby vacated.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)