IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Prasenjit Biswas C.R.A. 66 of 1990 Shri Swapan Kumar Dutta -Versus- The State of West Bengal For the Appellant : Ms. Pallavi Priyadarshee For the State : Mrs. Faria Hossain Mrs. Atulya Sinha Hearing concluded on : 26.03.2025 Judgment On : 02.04.2025 Prasenjit Biswas, J:- 1. The instant appeal has preferred against the judgment and order of conviction dated 20.01.1990 passed by the learned Judge, Special Court (E.C.) Act, Barasat in connection with Special Case No. 30/1989 arising out of Khardha P.S. Case No. 37(12)87 under Section 7(1)(a)(ii) of Act X of 2 1955 violating the provision of Para-5 of the licence of Baby food Licensing Order, 1966 and Para-3 of the West Bengal Declaration of Stock and Prices Essential Commodities Order, 1977 and sentenced the appellant to suffer rigorous imprisonment for four months and to pay a fine of Rs. 1000/- (One hundred) and in default to undergo rigorous imprisonment for three months and directed to forfeit the seized baby food and documents after expiry of period of appeal. 2. In short campus the story of the prosecution is that- One written complaint was lodged before the O.C. Khardha P.S. on 18.12.1987 by S.I of Police Ajit Kumar Biswas (DEO), Commercial Cell, 24 Parganas (North) to that effect that on that date in between 10.50 to 11.00 Hrs. he along with S.I., Dilip Kumar Chanda, W/C Tapan Kumar Chakraborty held a check in the stationary shop of the accused Swapan Kumar Dutta which is named and styled as “Dutta Varieties Stores” situated at Usumpore, Battala and found that the shop keeper had kept three tins of baby food (Amul Spray) along with other articles in the show- case for sell. On demand one Kalyan Dutta, brother of the accused who was present at that time in the shop failed to produce stock book for transaction in respect of baby food. Stock-cum-Rate Board showed Amul Spray baby food as “Nil”. The brother of the accused produced receipt for renewal of baby food licence, a cash memo book and challan of showing purchase of Amul Spray but he failed to produce any document showing transaction of 21 pieces of Amul Spray. As it was suspected that the accused disposed of those tins of baby food illegality and as such, the 3 accused violated the provision of Para 5 of the licence by not issuing cash memo to the customers as contained in the Baby Food Licencing Order, 1966 and para 3 of the West Bengal Declaration of Stock and Prices of Essential Commodities Order, 1977 for not displaying the stock board properly. The de-facto complainant seized those three tins of baby food containing 500 gms. each, cash memo, book and purchase challan etc. by preparing a seizure list in presence of the witnesses and those seized food and stock board was given custody to the brother of the accused on jimbanama. 3. On the basis of the complaint concerned P.S. started case being no. 37 dated 18.12.1987 against the accused Swapan Kumar Dutta, under Section 7(1)(a)(ii) of Act X, 1955. Thus, the criminal law was said in motion. Police investigated the case and submitted charge-sheet against the accused for offence punishable under Section 7(1)(a)(ii) of the Act X of 1955. 4. In this case, prosecution cited five witnesses including the I.O. of the case. Documents were marked as Exhibits 1 to 7 in the case. Rate-cum-Stock Board and three seized tins of lactose each containing 500 gms were marked as material exhibits I and II respectively. 5. Mrs. Pallavi Priyadarshee, learned Amicus Curiae on behalf of the appellant contended that the stock-cum-rate board was properly written but the writing was indistinct and the police officer could not read it or notice it and for such reason the case was started by the police falsely against the accused. From the stock-cum-rate board which was produced 4 before the Court, it would be found that in the columns of baby food (Amul Spray) 12 tins of 1000 gms and 12 tins of 500 gms were shown in stock on that relevant date. Although, there were 21 other tins of baby food stored in the shop but the police officer did not take notice of it. It is further said by the learned Advocate that the proprietor of the shop i.e. the accused was not present on the date of check and at that point of time his brother was present and it was his duty to display the actual stock board during the period of opening the shop is concerned. Although, it is claimed by the prosecution that the stock-cum-rate board was written as “Nil” but it would appear from the evidences of PW3 Dilip Ghosh and PW4 Kalyan Dutta that the stock board was written but not properly read out. PW4 Kalyan Dutta specifically stated in his evidence that the jimanama written on a white paper and he was in dark about the writing of the concerned officer during his period of inspection. 6. It is further said by the learned Advocate that the First Information Report was lodged at 15.50 PM but the alleged check in respect of the shop room was done in between 10.50 PM to 11.10 AM on 10.12.1987 which signifies that the complaint was not lodged immediate to the lodging of FIR and no plausible explanation was given by the side of the prosecution in this respect. The attention of this Court is drawn to the exhibit-5 from which it would be appeared that the accused filed an application before the Sub- Divisional Controller of F & S, Barrackpore for renewal of his baby food dealer licence. So, on the relevant point of time this appellant had valid 5 licence. It is said by the learned Advocate that the impugned judgment and order of conviction may be set aside. 7. Mrs. Atulya Sinha, learned Advocate appearing for the State submitted that there is no illegality or irregularity in the impugned judgment and as such, there is nothing to interfere with it. I.O. of this case gave zimanama of stock-cum-rate board and three tins of baby food in the custody of the brother of the accused and he took advantage of it and produced the said stock-cum-rate board in Court on the second day of trial showing that in the columns the Amul Spray baby food 12 tin of 500gms. were shown as stock on that relevant date. PW4, Kalyan Dutta although tried to establish that fact but the learned trial Court disbelieved the same. It is further contended by the learned Advocate that PW1 and PW2 supports the case of the prosecution. It would appear from the evidences brought on record that the accused has committed the offence punishable under Section 7(1)(a)(ii) of the Act X of 1955. The accused is a retail seller of baby food and as such, this case has come in the purview of Para 3 and 2 of the West Bengal Declaration of Stock and Prices of Essential Commodities order. So, it is said by the learned Advocate that the learned Trial Court correctly passed the judgment and order of conviction. 8. I have considered the rival submissions as advanced by both the parties and perused the materials on record. 9. PW1, Ajit Kumar Biswas stated that at the time of their visit the owner of the shop was found absent but PW4, Kalyan Dutta brother of the owner of the shop was present. It is said by the said witness that on that day stock- 6 cum-rate board was written as “Nil” but PW3, Dilip Ghosh stated in his cross-examination by the side of the prosecution that he did not say to the I.O. that a stock-cum-rate board was not properly written. PW4, Kalyan Dutta also echoed the same voice of PW3 and stated in cross-examination by the side of the prosecution that he also did not state to the I.O. that the stock board was shown as “Nil” so far as baby food is concerned. PW4 in his cross-examination stated that in the stock board 12 tins of Amul Spray baby food of 500 gms and 12 tins of baby food of 1000 gms each were written in the stock board. The writing was not distinct but the police officers did not take any notice of it. 10. PW5, Dilip Kumar Chanda, SI of Police specifically stated that at the time of their visit the owner of the shop was not present but his brother PW4 was present. Although, it is stated by this witness that at the time of the inspection nothing was written to the stock-cum-rate board as regards the Amul Spray is concerned but the said statement of this witness was not corroborated by PW3 and PW4. 11. The First Information Report in connection with this case was lodged at 15.15 Hours but the alleged check in the shop room was done by the police in between 10.50 AM to 11.10 AM on the relevant date, i.e. 18.12.1987. So, undoubtedly, the prosecution has failed to lodge complaint immediately. It would appear from the evidence of PW4 that the police officer did not seize and take anything from the shop. Although it is said that the seized articles were given zimma to PW4 but in his evidence he stated that the police officers did not keep anything in his custody and 7 thereafter he said that the police officer left in his zimma three baby food tins and the stock-cum-rate board of their shop which he produced in the Court. So, regarding zimma of the seized article this PW4 prevaricated his stand. 12. Para 3 of the West Bengal Declaration of Stock Prices of Essential Commodities Order, 1977 is quoted hereinbelow. “3. Display of stock and price list. 1. Every producer and importer shall display conspicuously at a place as near to the entrance of his place of business as possible a list in form A indicating the opening stock of each essential commodity held by him on each day. 2. Every wholesaler and every retailer shall display conspicuously at a place as near to the entrance of his place of business as possible a list in Form B indicating the opening stock and the wholesale and retail price, as the case may be of each essential commodity held by him on each day. 3. The wholesale price and the retail price to be displaced under Sub-paragraph (2) shall respectively be exclusive of all local taxes.” 13. So, as per provision of Para 3 of the said order every retailer shall display conspicuously at a place as near to the entrance of his place of business as possible a list in Form B indicating the opening stock and the wholesale 8 and retail price, as the case may be of each essential commodity held by him on each day. In this case, accused Swapan Dutta is a retail seller of baby food. It is the case of the prosecution that the stock-cum-rate board in the shop room of the accused was written as “Nil”. It appears from the evidences adduced by PW3 and PW4 that the stock board was written but it was not properly read out by the police officers. Moreover, a stock-cum- rate board is produced in the Court showing that in the columns 12 tins of Amul Spray baby food of 500 gms and 12 tins of baby food of 1000 gms was written. It is the specific defence of the appellant that although there were twenty-one (21) other tins of baby food store in the shop but the police officer did not take notice of it. The stock-cum-rate board was produced on the second day of trial but no explanation was given by the side of the prosecution regarding its genuineness or fakeness. PW3 and PW4 were declared hostile by the side of the prosecution and they cross- examined but nothing has been elicited from such cross-examination which may help the prosecution to prove its case. Rather, those witnesses denied that on the relevant date at the time of checking the stock-cum- rate board was found “Nil”. PW1, PW2 and PW5 are the police personnel and the private witnesses who are cited by the side of the prosecution did not support the story of the prosecution. PW4, Kalyan Dutta stated in his evidence that the Zimma was written in the white paper and he was dark about the writing of the concerned officer during the period of his inspection. 9 14. It is revealed that except the police personnel all witnesses to the incident have said that the stock cum rate board was written but not properly read out. It is pertinent to mention that on the date of checking the owner of the shop being the appellant of this case was absent and, in his absence, the entire checking was done. In my considered opinion the evidence of the witnesses in respect of this case does not inspire confidence so much so that the same can be the sole basis of conviction of the appellant. 15. Considering the entire circumstances, I find that the instant appeal has got a merit and it is liable to be allowed. 16. The impugned judgment and order of conviction passed under Section 7(1)(a)(ii) of the Act X of 1955 is hereby set aside. 17. The present appellant is acquitted from this case. The appellant is on bail, he set at liberty at once. The sureties standing in his favour are also being released. 18. CRA 66 of 1990 is disposed of. 19. Let a copy of this judgment allowed with the Trial Court record be sent down to the Trial Court immediately. 20. Urgent photostat certified of this judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities. (Prasenjit Biswas, J.)