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1993 DAILYLAW 534 (CAL)

BHOLANATH MONDAL & ORS v. STATE OF WEST BENGAL

CRA/120/1993 · 2026-09-16

Prasenjit Biswas

body1993

Judgment text

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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Prasenjit Biswas C.R.A. 120 of 1993 Bholanath Mondal & Ors. -Versus- State of West Bengal For the Appellants : Ms. Tuli Sinha. For the State : Mr. Lokesh Sharma, Mr. Narattam Acharyya. Hearing concluded on : 16.09.2026 Judgment On : 16.09.2026 (In Court:-) Prasenjit Biswas, J:- 1. The instant appeal has been filed on behalf of the appellants challenging the impugned judgment and order dated 16.04.1993 passed by the learned Special Court, Essential Commodities Act, Malda in connection with Special Court Case No. 48 of 1990. 2 2. By passing the impugned judgment the present appellants were found guilty for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act. 3. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction passed by the learned Trial Court, the present appeal has been preferred at the instance of the appellants, calling in question the legality and correctness of the findings recorded against them. 4. The case of the prosecution, in brief, may be delineated as follows: “The prosecution case was set in motion on the basis of a written complaint lodged by the defacto complainant, namely, S.I. Karuna Sindhu Das of D.E.B., Gazole, District Malda. It was alleged in the complaint that on 25.10.1990, at about 4.30 p.m., the complainant, in course of inspection at Rathbari, Malda, under English Bazar Police Station, intercepted and inspected a mini truck bearing registration No. WB/65/0355. The said vehicle was proceeding towards the Kaliachak area and was being driven by the present appellant, Bikash Ghosh. According to the prosecution, upon inspection of the vehicle, 27 bags of boiled rice were found therein. On being 3 questioned, the present appellant, Bikash Ghosh, allegedly stated that appellant Nos. 1 and 2, namely, Bholanath Mondal and Saidul Rahaman, had booked the truck and were the owners of the said rice. It was further alleged that both appellant Nos. 1 and 2 were travelling in the cabin of the mini truck. When they were asked to come out of the vehicle, they allegedly disclosed that they were the owners of the 27 bags of boiled rice. However, despite being called upon to do so, they allegedly failed to produce any document, permit or licence authorising the possession or transportation of the said quantity of boiled rice in the vehicle. The prosecution further alleged that the accused persons had thereby violated the provisions of paragraph 3 of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967, and that such violation constituted an offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. The 27 bags of boiled rice were accordingly seized by the complainant under a seizure list. Thereafter, all the accused persons were arrested and taken to English Bazar Police Station, Malda, and the 4 written complaint was submitted before the Officer-in-Charge of the said Police Station. On the basis of the said complaint, English Bazar P.S. Case No. 357 of 1990 dated 25.10.1990 was registered and the criminal proceeding was set in motion.” 5. During pendency of the present appeal, appellant No. 1, Bholanath Mondal, and appellant No. 2, Saidul Rahaman, expired. Consequently, the appeal stood abated insofar as those two appellants were concerned, and the present appeal survives only in respect of the surviving appellant, Bikash Ghosh. 6. In support of its case, the prosecution examined three witnesses and produced certain documentary evidence, which were duly marked as exhibits. The evidence of the prosecution was directed principally towards establishing the interception of the mini truck, the recovery and seizure of 27 bags of boiled rice there from, and the alleged violation of the provisions of the relevant Control Order. 7. On the other hand, the appellants sought to rebut the prosecution case by adducing the evidence of five defence witnesses. Certain documents were also produced on behalf of the appellants and were admitted into evidence and marked as exhibits. The defence case, inter-alia, was 5 intended to explain the source and ownership of the seized rice and to dispute the prosecution allegation regarding the unlawful transportation of the commodity. 8. Thus, the principal question which arises for consideration in the present appeal is whether, on an overall and cumulative appreciation of the oral and documentary evidence brought on record by both sides, the prosecution has been able to establish the alleged violation of the relevant provisions of the Essential Commodities Act and the Control Order against the surviving appellant, Bikash Ghosh, beyond reasonable doubt. 9. Ms. Tuli Sinha, learned Advocate appearing for the appellants, submitted that the prosecution case suffers from material omissions, contradictions and inconsistencies in the depositions of the witnesses examined on its behalf. According to her, such discrepancies are not merely peripheral or insignificant in nature, but materially affect the credibility of the prosecution version and, therefore, the finding of guilt recorded by the learned Trial Court cannot be sustained in law. 10. It was further contended that the witnesses examined on behalf of the defence have, in substance, corroborated the case of the appellants with regard to the seized rice. The defence witnesses stated that the rice which was allegedly 6 seized by the police was the produce of agricultural lands owned by the two deceased appellants. Thus, according to the learned Advocate, the explanation furnished by the appellants regarding the source and possession of the seized rice finds support from the evidence available on record. 11. Learned Advocate for the appellants particularly drew the attention of this Court to the depositions of PW2 and PW3. It was submitted that the appellant Bikash Ghosh was admittedly the driver of the truck in question. From the deposition of PW2, it would appear that the truck was hired in his presence and that the hiring charge was fixed at Rs.200/-. Thereafter, the seized rice was loaded into the truck at the relevant place. The learned Advocate submitted that the evidence of PW2 further indicates that the police arrived at the spot only after completion of the loading of the truck. It was also stated by PW2 that the complainant came to the spot alone and was not accompanied by any constable or home guard at that time. According to the learned Advocate, these aspects of the evidence create serious doubt regarding the prosecution version as to the manner in which the alleged seizure and the subsequent proceedings took place. 12. It was argued that the material contradictions, inconsistencies and omissions appearing in the depositions 7 of the prosecution witnesses go to the very root of the prosecution case. Such discrepancies, particularly where the prosecution case substantially rests upon the testimony of those witnesses, cannot be brushed aside by treating them as minor or natural variations. According to the learned Advocate, the cumulative effect of such infirmities is sufficient to cast a reasonable doubt upon the prosecution version. 13. Learned Advocate further submitted that the alleged search and seizure was not conducted in accordance with the procedure prescribed by law. It was contended that the appellant Bikash Ghosh was merely a hired truck driver and there is no cogent evidence on record to establish either his connection with the alleged offence or his knowledge that any unlawful activity was being carried out through the vehicle. The mere fact that the appellant was driving the truck from which the alleged commodity was recovered, according to the learned Advocate, cannot by itself establish his participation in the commission of the offence. In the absence of any further incriminating circumstance connecting him with the alleged unlawful transportation or possession of the commodity, no criminal liability can automatically be fastened upon him merely on account of his being the driver of the vehicle. 8 14. The learned Advocate also took this Court through the relevant portions of the depositions of the other prosecution witnesses and submitted that, when the evidence adduced by the prosecution is considered as a whole and in its proper perspective, the prosecution version is found to suffer from substantial infirmities. According to her, the evidence does not possess the degree of consistency and reliability required for sustaining a finding of guilt beyond reasonable doubt. 15. It was, therefore, argued that the learned Trial Court failed to properly appreciate the material contradictions and omissions appearing in the prosecution evidence and did not consider their cumulative effect upon the credibility of the prosecution case. According to the learned Advocate, the Trial Court proceeded to record the finding of guilt without adequately addressing the doubts arising from the evidence on record and, consequently, the impugned judgment and order of conviction is unsustainable in law. 16. On such grounds, learned Advocate for the appellants prayed that the impugned judgment and order of conviction passed by the learned Trial Court be set aside and that the appeal preferred by the appellants be allowed. 17. Lastly, learned Advocate submitted that the alleged incident dates back to the year 1990 and that, from the examination of the appellant under Section 313 of the Code of Criminal 9 Procedure, it appears that he was about 26 years of age in the year 1991. It was pointed out that the appellant has now crossed the age of sixty years. Learned Advocate, therefore, submitted that, while considering the appeal, this Court may also take into account the considerable passage of time since the occurrence and the present age of the appellant, particularly in the event of any consideration relating to sentence. 18. Per contra, Mr. Lokesh Sharma, learned Advocate appearing for the State, strongly opposed the appeal and supported the impugned judgment and order of conviction passed by the learned Trial Court. It was submitted that the provisions contained in Sections 3 and 14 of the Essential Commodities Act, read with the relevant Control Order governing the possession, storage and transportation of the commodity in question, are squarely attracted to the facts and circumstances of the present case. According to the learned Advocate, the prosecution has been able to establish, by adducing cogent oral evidence, the recovery of 27 bags of boiled rice from the mini truck in question. 19. Mr. Sharma further contended that the appellants/convicts failed to produce any cogent, reliable or legally acceptable documentary evidence in support of their plea that the seized 27 bags of boiled rice were the produce or usufruct of 10 agricultural land allegedly owned or possessed by them. According to the learned Advocate, a mere assertion that the seized rice was produced from agricultural land, without producing any supporting material regarding the existence, extent, cultivation or yield of such land, cannot by itself constitute a satisfactory explanation for possession and transportation of such a substantial quantity of rice. 20. It was further submitted that there is no material on record, either in the form of oral evidence or documentary evidence, to demonstrate that the accused persons possessed or cultivated sufficient agricultural land from which 27 bags of boiled rice could reasonably have been produced. In the absence of any such supporting material, the explanation advanced by the defence, according to the learned Advocate, remains wholly unsubstantiated and was rightly not accepted by the learned Trial Court. 21. So far as the appellant Bikash Ghosh is concerned, learned Advocate for the State submitted that he was admittedly the driver of the mini truck from which the 27 bags of boiled rice were recovered. It was argued that the circumstance of the appellant being in control of and driving the vehicle at the relevant time is a material circumstance which cannot be completely disregarded while appreciating the prosecution case. According to the State, his role has to be examined in 11 conjunction with the other evidence relating to the loading, transportation and recovery of the seized commodity. 22. Learned Advocate further submitted that the search and seizure were duly conducted and that the seizure materials establish the factum of recovery of 27 bags of boiled rice from the mini truck. It was contended that the appellant, being the driver of the vehicle, did not furnish any probable, convincing or otherwise credible explanation to demonstrate his lack of knowledge or involvement in the alleged transportation. The mere assertion that he was only a driver, according to the learned Advocate, cannot by itself absolve him of liability when the prosecution evidence, taken as a whole, indicates his connection with the vehicle and the recovered commodity. 23. The learned Advocate for the State also drew the attention of this Court to the evidence of PW1 and PW2, particularly the portions elicited during their cross-examination. It was submitted that the evidence of these witnesses ought to be appreciated cumulatively and in its entirety rather than by isolating individual statements or minor discrepancies from the context in which they were made. According to the learned Advocate, such an overall assessment of the evidence would demonstrate that the prosecution has satisfactorily established the circumstances culminating in the search, 12 recovery and seizure of the 27 bags of boiled rice from the truck being driven by the present appellant. 24. It was further argued that the discrepancies, if any, appearing in the evidence of the prosecution witnesses do not affect the core of the prosecution case, particularly when the principal factum of recovery remains established through the evidence adduced by the prosecution. According to the learned Advocate, the defence has not been able to demonstrate any material contradiction of such a nature as would render the prosecution evidence inherently unreliable or create a reasonable doubt regarding the recovery. 25. Lastly, learned Advocate for the State submitted that the evidence available on record, when considered in its entirety, establishes the involvement of the present appellant, who was admittedly driving the mini truck at the relevant time, in the alleged offence. It was contended that the learned Trial Court carefully considered the oral and documentary evidence and, upon proper appreciation thereof, arrived at a reasoned conclusion regarding the guilt of the appellant. The findings recorded by the learned Trial Court, according to the learned Advocate, are based upon the evidence available on record and do not call for interference in appeal. 26. Accordingly, Mr. Sharma submitted that the grounds urged by the appellants do not disclose any perversity, illegality or 13 material error in the appreciation of evidence by the learned Trial Court. He therefore prayed that the appeal, being devoid of merit, be dismissed and that the impugned judgment and order of conviction passed by the learned Trial Court be affirmed. 27. Having considered the rival submissions advanced on behalf of the parties and having carefully gone through the entire materials available on record, this Court proceeds to examine whether the prosecution has been able to establish the charge against the present appellant beyond reasonable doubt. 28. Admittedly, the incident in question took place on 25.10.1990. On the said date, the defacto complainant lodged a complaint alleging, inter alia, that a mini truck bearing registration No. WB/65/0355 was intercepted and 27 bags of boiled rice were recovered from the said vehicle. It was alleged that, upon being questioned, appellant Nos. 1 and 2 disclosed themselves to be the owners of the seized rice. They were asked to produce the necessary documents, permit or licence authorising the possession and transportation of the said commodity in the mini truck. As the said appellants failed to produce any such document, the rice was seized and the complaint was lodged. The present 14 appellant, Bikash Ghosh, admittedly was the driver of the said mini truck. 29. Upon appreciation of the evidence adduced by both the prosecution and the defence, the learned Trial Court found the appellants guilty of the offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act. The present appeal was preferred in the year 1993 challenging the said judgment and order of conviction and has remained pending for a considerable period thereafter. 30. It is an admitted position that appellant Nos. 1 and 2, who had claimed ownership of the 27 bags of boiled rice, expired during the pendency of the present appeal. It is also not in dispute that the present appellant, Bikash Ghosh, was the driver of the mini truck from which the seized rice was recovered. The question, therefore, which requires consideration is whether the prosecution evidence establishes, beyond reasonable doubt, the conscious involvement or knowledge of the present appellant in the alleged illegal possession or transportation of the seized commodity. 31. PW2, Babul Rishi, is a seizure witness and his evidence assumes considerable significance in this regard. In his cross-examination, PW2 stated that there was a mini truck near his stall on the relevant date and that the 27 bags of 15 boiled rice were unloaded by the side of his stall. Significantly, he further stated that the truck had been hired from near to his premises and that the hiring charge was fixed at Rs.200/-. According to his evidence, after the truck had been hired and the hiring charge had been settled, the seized rice was loaded into the said truck in his presence. 32. The evidence of PW2 further discloses that the complainant arrived at the spot only after the rice had been loaded into the mini truck and that he came alone. PW2 specifically stated that no police constable or home guard accompanied the complainant at that time. The witness also stated that the traffic island was situated at a distance of about 10 to 12 cubits from his stall. These circumstances assume importance in assessing the prosecution version concerning the manner in which the interception, search and seizure were allegedly effected. 33. More importantly, PW2 stated during cross-examination that the appellants wanted to produce papers relating to their agricultural lands, but they were not afforded an opportunity to produce such documents in support of their claim regarding the ownership or source of the seized rice. This part of the evidence cannot be ignored, particularly when the defence case was that the seized rice was the produce of 16 agricultural lands owned or possessed by appellant nos. 1 and 2. 34. PW2 also stated that several other shops and stalls were situated at the relevant place and that it was a busy locality. Despite the availability of other persons at the spot, no other independent person from the locality was examined as a witness to the alleged search and seizure. Though the absence of an independent witness, by itself, may not invariably render a seizure doubtful, in the facts of the present case, the same assumes significance when considered along with the other infirmities appearing in the prosecution evidence. 35. PW2 further stated that the other two appellants, namely Saidur Rahaman and Bhola Nath Mondal, had informed the police officer that they possessed agricultural land in the Gazole area and that the seized rice was the produce of such land. Thus, the evidence of PW2 itself lends some support to the explanation advanced on behalf of appellant Nos. 1 and 2 regarding the source of the seized rice. 36. PW3, S.I. Nitya Ranjan Das, was the Investigating Officer of the case. After completion of the investigation, he submitted the charge-sheet against the accused persons. However, during cross-examination, PW3 admitted that he did not visit Bichitra Market in connection with the investigation of the 17 case. He further stated that the witnesses Jugal Das and Babul Rishi were examined on 03.12.1990 and not at the place of occurrence. The Investigating Officer also admitted that the exact place where those witnesses were examined had been noted by him during investigation. These admissions require careful consideration while assessing the prosecution case and the manner in which the statements of the material witnesses were recorded and relied upon. 37. It is true that appellant nos. 1 and 2 had examined witnesses in support of their plea that the seized 27 bags of boiled rice were the produce of agricultural lands owned or possessed by them. Certain documents were also produced on their behalf and were marked as exhibits. However, those appellants are no longer before this Court, having expired during the pendency of the appeal. The case of the present appellant stands on a materially different footing. 38. The evidence of PW2 indicates that the mini truck was hired at the place of occurrence itself, that the hiring charge was fixed at Rs.200/-, and that only thereafter the rice was loaded into the vehicle. There is no evidence to show that the present appellant was the owner of the seized rice or that he had any proprietary or possessory interest in the commodity. There is also no satisfactory evidence establishing that he 18 participated in the procurement, storage or transportation of the rice in violation of the relevant Control Order. 39. The evidence of PW2 is particularly relevant because, according to the said witness, the hiring of the truck and the loading of the 27 bags of boiled rice took place in his presence. The complainant allegedly arrived only after the loading had been completed and thereafter intercepted the vehicle. Thus, the prosecution evidence itself suggests that the present appellant came into the transaction in the capacity of a hired driver. Mere physical control over the vehicle, in such circumstances, cannot by itself establish conscious participation in the alleged offence. 40. It is also significant that, although the place of occurrence was admittedly a busy locality with several stalls and shops in its vicinity, no independent witness other than PW2 was cited to prove the alleged search and seizure. This circumstance, when considered together with the other inconsistencies and omissions in the prosecution evidence, assumes relevance in determining whether the prosecution has established its case against the present appellant with the requisite degree of certainty. 41. If the prosecution case is accepted to the extent that appellant nos. 1 and 2 were the persons claiming ownership of the seized 27 bags of boiled rice, their alleged role cannot 19 automatically be attributed to the present appellant merely because he happened to be driving the vehicle. The distinction between the alleged owners of the commodity and a person engaged as a driver of the vehicle is material. There must be some evidence indicating that the driver had knowledge of the unlawful nature of the consignment or had consciously participated in the alleged offence. 42. In the present case, there is no convincing evidence to establish that the appellant Bikash Ghosh had any connection with the alleged illegal possession or transportation of the seized rice, or that he had knowledge that the commodity was being carried in violation of any statutory or regulatory provision. No independent circumstance has been brought on record which would establish his conscious involvement beyond the mere fact that he was driving the vehicle. The mere presence of the appellant as the driver of the mini truck from which the commodity was subsequently recovered cannot, in the absence of further incriminating circumstances, automatically give rise to an inference of his guilt. 43. Upon a cumulative assessment of the entire evidence, both oral and documentary, this Court finds that the prosecution case regarding the involvement of the present appellant suffers from material infirmities. The evidence does not 20 inspire the requisite degree of confidence so as to sustain a finding of guilt against him beyond reasonable doubt. The contradictions, omissions and circumstances emerging from the evidence of PW2 and PW3, particularly when considered alongside the admitted fact that the appellant was a hired driver, materially weaken the prosecution case against him. 44. In the considered view of this Court, the learned Trial Court did not properly appreciate the aforesaid aspects of the evidence and proceeded to attribute criminal liability to the present appellant principally on the basis of his being the driver of the vehicle from which the seized rice was recovered. Such an approach, in the absence of cogent evidence establishing his conscious knowledge or participation in the alleged offence, cannot be sustained. 45. It is a settled principle of criminal jurisprudence that the burden remains upon the prosecution to establish the guilt of the accused beyond reasonable doubt. The accused is not required to prove his innocence by establishing his defence beyond all doubt. Where the evidence on record reasonably admits of a view consistent with the innocence of the accused, the benefit of such doubt must necessarily go in his favour. In the present case, the evidence regarding the role of the appellant as a hired driver, coupled with the material 21 infirmities noticed above, creates a reasonable doubt as to his conscious involvement in the alleged offence. 46. For the reasons discussed hereinbefore and upon careful consideration of the entire materials brought on record by both the prosecution and the defence, this Court is of the considered view that the impugned judgment and order of conviction, insofar as it relates to the present appellant Bikash Ghosh, is not sustainable in law and is liable to be set aside. 47. Accordingly, the present appeal is allowed. 48. The impugned judgment and order of conviction passed by the learned Trial Court, insofar as the present appellant is concerned, is hereby set aside. The appellant is acquitted of the charge for which he was convicted. 49. The appellant is on bail, his bail bond shall stand discharged, subject to compliance with the provisions of Section 437A of the Code of Criminal Procedure, as applicable. 50. Let a copy of this judgment allowed with the Trial Court Records be sent down to the Trial Court immediately. 51. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)