IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Prasenjit Biswas CRA 283 Of 1989 Suren Sadhukhan -Versus- The State of West Bengal For the Appellant : Mr. Sibojyoti Chakraborty, Ms. Indrani Lahiri. For the State : Mr. Subhasree Patel. Hearing concluded on : 27.03.2025 Delivered on : 02.04.2025 Prasenjit Biswas, J:- 1. The instant appeal has been preferred against the judgment and order of conviction dated 14.06.1989 passed by the learned Judge, Spl. Court, Hoogly (under Essential Commodities Act) in connection with case no. 26/87 finding the present appellant guilty of offence punishable under Section 7(1)(a)(ii) of the E.C. Act (Act X/1955) and sentencing the appellant to suffer rigorous imprisonment for 2 a period of three months and to pay a fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment for 15 days. 2. In short campus the story of the prosecution is as follows: On 13.01.1987 the officer of D.E.B. Hoogly along with Watcher Constable and D.A.P. forces received secret information and held a raid at the grocery shop of the accused situated at village Akri, P.S. Pursurah, Dist. Hoogly (at present Champadanga Naskarpara, P.S. Tarakeswar, Distric- Hooghly). Huge quantities of grocery articles were found available in the shop of the accused. But the accused failed to produce any receipt, stock register, sale register, stock and price board etc on demand by the raiding authority. The officer seized some essential commodities from the shop of the accused under a seizure list and kept those seized articles in zimma of the accused. The accused was arrested and the case was filed against him. 3. The accused pleaded not guilty and it is his specific defense that during inspection he showed the stock price board to the officer and the officer quoted the quantities of commodities seized in this case from that writings of stock and price board. 4. In this case five witnesses were examined by the side of the prosecution and some documents were marked as exhibits in connection with the case. The accused himself was examined as DW 1 and proved one stock board which was marked as Mat. Exhibit A. 5. Mr. Sibojyoti Chakrabarti, learned Advocate appearing for the appellant submits that the impugned judgment and order suffers from irregularity and illegality and cannot stand under the eye of law. There are sharp discrepancies in 3 between the evidences of the witnesses as adduced by the prosecution. PW1 stated in his deposition that at the time of conducting raid 15/20 persons assembled at the shop of the accused but those persons were not cited as witnesses in the present case. Wherein PW 2 W/C. Sk. Samser Ali stated in his cross examination that only 4/5 persons assembled on the spot at the time of conducting raid by the police personnel. So, there is clear contradiction in respect of number of persons present at the spot on the date of incident. Learned counsel further said that it would appear from evidence of PW 1 that he left the seized commodities in the custody of the accused after preparation of the seizure list. The said circumstances runs counter to the allegations of the prosecution and it violated the provisions of the relevant order of 1977. The attention of this Court is drawn by the learned Advocate to the cross examination of DW 1/ the appellant Surendra Nath Sadhukhan wherein he stated that the board was correctly written as per physical stock and the police declared that the board would not be required and as such they did not take it. Subsequently, he came to know that for non availability of board in the case shop, the instant case was filed against him. Although, DW 1 in his evidence stated that the stock cum price board was properly displayed and maintained by him but the learned Trial Court held in its judgment that there is no stock cum written board which is improper and unreasonable. The attention of this Court is further drawn by the learned Advocate to the evidence of PW2 wherein he stated that he could not say either the name of the driver and jeep number by which they went to the case shop. This witness also failed to say the names of the owner of the adjoining shop. 4 6. Lastly, it is submitted by the learned Advocate that PW4, the investigating officer clearly stated in his cross examination that except case diary he has no other document to show that he went to the place of occurrence and he did not mention the specific names of the local witnesses which might prove that he went to the spot. As per submission of the learned Advocate this witness candidly admitted that he did not note in the case diary that he enquired and ascertained about existence of any board in the case shop on the date of occurrence. So, the learned Advocate submitted that the impugned judgment and order of conviction is not fair as the learned Trial Court did not take into account the above mentioned facts and as such the impugned judgment and order of conviction may be set aside. 7. Ms. Subhasree Patel, learned Advocate appearing for the State submits that there is no illegality or irregularity in the impugned judgment and order of conviction passed by this Court. The learned Trial Court correctly appreciated the evidences brought on record by the side of the prosecution and after scanning the entire evidences he found that this appellant is guilty for committing the offence as provided in the E.C. Act (Act X of 1955). It is further said that PW 1, PW 2 and PW 4 vividly narrated the incident as made in the written complaint. Huge quantities of grocery articles were found available in the shop of the accused but on demand by the raiding authority he failed to produce relevant documents like stock register, sale register, stock price board etc. and the appellant produced one trade license which was valid up to 31.03.1986. So, at the time of raid this accused had no valid trade license. So, the guilt of the appellant is proved by the prosecution 5 and as such the impugned judgment and order of conviction of the appellant may not be interfered with. 8. I have heard the rival submission advanced by both the parties and perused the evidences and other materials available on record. 9. Admittedly, this accused is the owner of the shop on which raid was held on 13.01.1987. Save and except PW 3, all the witnesses cited on behalf of the prosecution are police personnel. PW 1, B.B. Roy, S.I. of police who conducted raid at the shop of the accused in his deposition narrated the entire incident as made in the written complaint. In cross examination he stated that during inspection 15/20 persons were assembled at the spot whereas PW 2 W/C Sk. Samser Ali who accompanied with PW 1 stated in his cross examination that 4/5 persons were assembled at the spot on that date. So, there is a sharp discrepancy about the number of persons who assembled at this spot. Save and except PW3 Keshab Chandra Mandal no other persons who were present at the spot on the relevant date was cited as witness. PW1 stated in his cross examination that he did not seize any weights nor prepared any weighment chart. 10. PW 2 failed to state the name of the driver and the jeep number by which they went to the case shop. This witness also failed to say the names of owners of other shops which were situated in the vicinity of the case shop. 11. PW3 Keshab Chandra Mandal is only the private witness who was cited as a witness by the side of the prosecution. He stated in his examination in chief that Daroga Babu saw physical stock and asked about the quantities from the accused. Save and except this witness did not see anything else. PW3 further stated that Darogababu wrote in a pepper and asked him to sign on it. At the time of cross- 6 examination he admitted the suggestion that once he purchased ‘Chanachur’ from the shop of the appellant and paid Rs. 1,000/- but this appellant refused to pay the balance to him and he did not get that balance amount till the date of his giving deposition before the Court. This witness admitted that he had quarrel with the accused and has no talking terms and he was not interrogated by the investigating officer. So, it appears that this witness had enmity with the appellant and as such his statement involving the appellant with the alleged offence cannot be said to be trustworthy. 12. PW4 Dipak Mitra, S.I. of police and investigating officer stated in his cross examination that except case diary he has no other documents to show that he went to the place of occurrence. This witness admitted in cross-examination that he did not mention specific name of local witnesses to prove that he conducted raid at the case shop. It is further said by this witness in the cross examination that he did not note in the case diary that he enquired and ascertained about existence of any board in the case shop on the date of occurrence. The evidence of this witness shows that no attempt was made by him to unearth the truth. 13. I have already stated hereinabove that there are discrepancies in the evidences adduced by PW 1 and PW 2. PW 2 could not say anything which may support the case of the prosecution. If there is any discrepancy between the evidences of the police witness and the public witness then the accused is entitled to the benefit of reasonable doubt. PW1 stated in his evidence that he left the commodities in the custody of the appellant after preparation of the seizure list which violated the provisions of the order of 1977. In this case the accused Suren Sadhukhan was cited as a defense witness. At the time of cross examination this 7 witness (DW1) stated that the board was correctly written depicting physical stock but the police said that board would not be required and as such they did not take it. The said board was marked as material exhibit A in the case. This DW1 said that on that board he wrote by chalk about the stock of 13.01.1987 by his own hand writing. PW1 stated in his cross examination that he did not seize any weights nor prepare any weighment chart. DW 1 also said in the same line that police did not weigh any commodity but quoted the quantities as written on board. PW3 is the only private witness as cited by the prosecution and in his deposition he stated that Daroga Babu wrote in a paper and asked this witness to sign on that document and accordingly, he signed on it. 14. After scanning of the entire evidence brought on record and after separating chaff from the grains I am of the opinion that the learned Spl. Judge has failed to appreciate all the evidences of the witnesses as well as exhibited documents and as such the judgment and order of conviction cannot be sustained under the law and it is liable to be set aside. 15. Accordingly, the instant criminal appeal being no. CRA 283 of 1989 is hereby allowed. 16. Consequently, the impugned order of conviction dated 14.06.1989 passed by the learned Judge, Spl. Court, Hoogly is hereby set aside. 17. The present appellant Suren Sadhukhan is found not guilty under Section 7(1)(a)(ii) of the E.C. Act X/1955 in connection with case no. 26/87. He is thus acquitted from the said case. 18. The appellant is discharged from his bail bond and be set at liberty at once, if not wanted in connection with any other case. 8 19. With the aforementioned observations, the instant appeal being no. CRA 283 of 1989 is disposed of. 20. Department is directed to send down the copy of the judgment along with Trial Court record to the Trial Court at once. 21. Urgent Photostat certified copy of this order, if applied for be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)