IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Prasenjit Biswas CRA 428 Of 1990 Gopal Chandra Das -Versus- The State of West Bengal For the Appellant : Mr. Subham Bhakat (Amicus Curiae) For the State : Ms. S. Das Mr. Sharequl Haque Hearing concluded on : 29.04.2025 Delivered on : 19.05.2025 Prasenjit Biswas, J:- 1. The instant appeal has been preferred challenging the impugned judgment and order dated 6th September, 1990 passed by the learned Judge, Special Court (E.C. Act), Hoogly finding this appellant guilty for commission of offence under Section 7(1) (a) (II) of the Essential Commodities Act, 1955 for violation of paragraph 3 of the West Bengal Imported Vegetables Oils (Prohibition of 2 Unauthorized Sale) Order, 1984 and sentenced him to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo further rigorous imprisonment for 1 month further. 2. In short campus the story of the prosecution is that – “On 31.05.1988 S.I. R.N. Mondal of DEB Hoogly accompanied by force conducted a raid to Begumpur Station Bazar Road and found that this appellant convict near at railway level crossing with 6 tins of S.T.C Brand edible grade Refind Rapeseed Oil. On being asked this appellant failed to show any document for possession of those tins of Rapeseed Oil. As the appellant failed to show any document, the said tins were seized by the raiding team under a seizure list in presence of the witnesses. Thereafter this accused was taken to police station with seized tins of Rapeseed Oil and a written complaint was lodged to that effect. On the basis of the said written complaint a case was started by the concerned police station. After completion of investigation charge sheet was submitted against this appellant convict under Section 7(1)(a)(ii) of E.C. Act X/55 for violation of para 3 of the West Bengal Imported Vegetable Oils (Prohibition of Unauthorised Sale) Order, 1984. Accused pleaded not guilty and claimed to be tried.” 3. In this case 6 witnesses were examined by the side of the prosecution and documents were marked as exhibits on behalf of the prosecution. 4. Mr. Subham Bhakat, learned Amicus Curiae said that there are apparent contradictions in the statements of the witnesses. It is said by the learned 3 Advocate that the place of occurrence was more or less populated and there were shops and stalls nearby. The attention of this Court is drawn to the deposition of PW 6 who investigated the case and deposed that he had not received any local man for purpose of witness. As per submission of the learned Advocate the seizure list prepared by the police personnel was not witnessed by any local person and there was no independent person to support the factum of seizure. So, the seizure list as prepared by the police personnel creates doubt and the same cannot be relied upon. 5. It is further said by the learned Advocate that although it was a case of the prosecution that the seized tins contained Rapeseed Oil or imported vegetable oil within the meaning of the West Bengal Imported Vegetable Oils (Prohibition of Unauthorised Sale) Order but in the absence of any authenticated test report no conclusion can be drawn that the seized tins allegedly contained Rapeseed Oil or imported vegetable oil. It is further assailed by the learned Advocate that in this case 6 witnesses were examined by the side of the prosecution but their evidences are contradictory to each other in material particulars and no independent witness was examined to establish the prosecution case beyond all reasonable doubt. So, it is said by the learned Advocate that the impugned judgment and order of conviction is not sustainable under the provision of law and it may be set aside. 6. Ms. S. Das learned Advocate for the State said that there is no illegality or material irregularity in the impugned judgment and order of conviction. It is said that the prosecution relied upon the testimony of PW 1, PW 2 and PW 3 regarding possession of imported vegetable oil by the appellant. It is said that at the time of conducting raid the appellant was found standing near a bus stop with 6 sealed 4 tins containing Rapeseed Oil with S.T.C. brand and this appellant failed to show any paper or document for the possession of tins containing Rapeseed Oil and as such those tins were seized under the seizure list. All the witnesses particularly witnesses No(s) PW2, PW 3 and PW 4 more or less supported the version of the prosecution. The attention of this Court is drawn to the testimony of PW 2 wherein this witness stated that this appellant was found sitting on one tin of Rapeseed Oil with 5 other tins containing Rapeseed Oil lying on the road near the level crossing of a Bus stop. It is assailed by the learned Advocate that the evidences of witnesses are cited on behalf of the prosecution are overwhelming to conclude that the imported tins of Rapeseed Oil were recovered from the possession of the accused on the relevant point of time and date. As per submission of the learned Advocate although there are variation of the statements of PW 2, PW 3 with PW 1 which was happened due to lapse of memory with the passage of time and as such omission cannot be treated as a lacuna in the investigating process. So, it is said by the learned Advocate that there is no illegality in the impugned judgment and order of conviction and as such it may not be interfered with. 7. I have considered the rival submission advanced by both the parties. Perused all the materials gathered in the record. 8. PW1 S.I. Rabindra Nath Mondal in his examination in chief narrated the entire incident as made out in the written complaint. In cross examination this witness stated that many people were there near the bazaar at which this appellant was found with the seized tins of Rapeseed Oil. Although, this witness admitted that the place of occurrence is at near the bazaar and there were some passersby and some people were engaged in selling their goods but none of them 5 was cited as witness in this case. PW 2 Arun Kr. Misra stated that at the date of incident he was attached to D.E.B Hoogly as watcher constable. This witness also stated in the same line of PW 1 that this appellant at the time of raid was found sitting on one tin of Rapeseed Oil with 5 other tins of oil lying on the road near the level crossing of a bus stop. This witness is a witness to the seizure. PW 3 another watcher constable namely Vivekananda Mukherjee is also witness to the seizure. PW2 said that Darogababu seized tins of Rapeseed Oil in presence of accused and by preparing a seizure list on which he signed. Like other two witnesses as referred above PW3 also said that many a people had assembled at the time of apprehension of the accused with tins of Rapeseed Oil but none of them agreed to be the witness to the search. 9. PW 5 S.I. Maniklal Das stated in cross examination that he found tins of Rapeseed Oil lying on the road near the level crossing by the side of which the appellant was standing but PW2 in his examination in chief stated that this appellant was sitting on one tin of Rapeseed Oil. So, it is evident that this witness and PW2 were not sure as to whether this appellant was sitting or standing at the place of occurrence. This PW 5 stated in cross examination that there is a bazaar near the place of occurrence and there is no other persons at the bust stop where this appellant was standing with tines of Rapeseed Oil keeping on the road which is contrary to the statement of PW3. PW3 stated in cross examination that many a people had assembled at the time of apprehension of the accused with the tins of Rapeseed Oil. The statement of this PW 5 is also contrary to the statement of PW 1 wherein the said PW 1 admitted that many a people were there near the bazaar and some of them were passersby and some were engaged in selling their goods 6 but Pw5 stated that there was no other person at the bus stop. So, there is apparent contradiction in the statements of these witnesses regarding presence of persons at the bus stop where this appellant was found standing or sitting with tins of Rapeseed Oil. PW 6 is the investigating officer who investigated the case and submitted charge sheet against this appellant. In cross examination this witness stated that he did not send the seized tins containing Rapeseed Oil for chemical examination. This witness stated the he did not think to open the seal of any of the tins during investigation. If there is no chemical analyzing report then how can it be ascertained that the seized tins containing Rapeseed Oil are the imported Rapeseed Oil and this appellant violated the provision of the relevant Act and Order. Like other witnesses it is said by this witness that place of occurrence is more or less populated and there are shops and stalls nearby. It is said by this witness that he found people there but he did not receive any local man for the purpose of witness. This statement of the witness is contrary to the statement of PW 5 wherein this PW 5 stated that there is no other person at the bus stop where this appellant was standing with tins of Rapeseed Oil keeping on the road. So, it is apparent from the evidence of the witnesses cited by the prosecution that there was no independent witness who witnessed the seizure made by the prosecution although; the place of occurrence was more or less populated. As per statement of PW 6 there are shops and stalls nearby. Prosecution took plea that people were called on but none of them ventured to come forward. The prosecution witnesses stated that there were many persons present near the alleged place of occurrence but in fact none of them was cited as a witness to the prosecution to prove its case. So, an adverse presumption can be drawn against the prosecution for non 7 citing of the independent persons as witnesses who were present at the place of occurrence to prove the seizure made by the prosecution from this appellant. It further appears that the sized tins of Rapeseed Oil were not produced before the learned Judge and no explanation is given by the side of the prosecution to that effect. Moreover, the seized tins of Rapeseed Oil were not sent for chemical examination to authenticate whether these tins actually contained imported Rapeseed Oil or not. 10. So, it is evident from the materials as well as from the evidences of the witnesses that there are apparent contradictions in the statements of the cited witnesses. All the witnesses are the police personnel and not a single independent witness was cited to prove the story of the prosecution despite the presence of many persons at the place of occurrence which casted doubt about the truthfulness of the case of the prosecution. There is variation of the statements of PW 2 and PW 3 with PW 5 which create doubts about the factum of seizure of tins of Rapeseed Oil from this appellant. 11. In view of above facts and circumstances and discussions made above, I am of the opinion that the impugned judgment and order of conviction passed by the learned Special Court is not sustainable under the provision of law and it is liable to be set aside. 12. Accordingly, the instant appeal being No. CRA 428 of 1990 is hereby allowed. 13. The judgment and order of conviction passed by the learned Judge, Special Court (E.C. Act), Hoogly finding this appellant guilty for commission of offence under Section 7(1) (a) (II) of the Essential Commodities Act, 1955 for the violation 8 of paragraph 3 of the West Bengal Imported Vegetables Oils (Prohibition of Unauthorised Sale) order, 1984 is hereby set aside. 14. This appellant is acquitted from the charges framed by the Trial Court. 15. He is on bail. He is discharged from bail bonds and be set at liberty if not wanted in connection with any other case. 16. Let the copy of this order along with TCR be sent down to the learned Trial Court immediately. 17. Urgent Photostat certified copy of this order, if applied for be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)