DILIP KUMAR GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 7th August, 1987 passed by the learned Judge, Special Court (E.C. Act), Hooghly, convicting the appellant for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act as amended up to date for violation of Para 3(2) of West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (hereinafter referred to as 'Order of 1977') and Para 5 of Fertilizer Control Order, 1957 (hereinafter referred to as 'Control Order of 1957') and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for one month.

(2.) The prosecution case as alleged against the appellant is to the effect that on 19th February, 1986 the Officer of D.E.B., S.I. B.B. Roy along with W/C Prem Kumar Magar and Samser Ali inspected the fertiliser shop of the appellant situated at Gajarmore, P.S. Haripal and found different kinds of fertilisers exposed for sale in the said shop. On demand, the appellant could not produce the stock-cum-rate board in the shop. He produced the stock and sale registers as well as the cash memo book. The officer found that the stock register was written up to 10th February, 1986 showing opening balance of urea 5000 kgs. in 100 bags and growmore 2000 kgs. in 40 bags. Stock register was written upto 16th December, 1986. On physical verification of the stock of fertiliser, the officer found 20 kgs. of urea were available in the shop. Hence, there was a shortage of 4080 kgs. in case of urea. In case of growmore, there was a shortage of 1960 kgs. In case of potash, although the stock register reflected 3050 kgs. in 51 bags, no stock was found. Accordingly, the available stock was seized and FIR was registered against the appellant. In conclusion of investigation, charge-sheet was filed against the appellant. Substance of accusation was read over and explained to him. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined three witnesses and exhibited a number of documents. The defence examined one witness to probabilise its case. In conclusion of trial, the trial Judge by the impugned judgement and order convicted the appellant for commission of offence under Section 7(1)(a)(ii) of the Essential Commodities Act and sentenced him, as aforesaid.

(3.) Mr. Anirban Dutta, learned Amicus Curiae, submitted that evidence as to weighment of the stock of fertiliser found at the shop room was not proved beyond reasonable doubt. He further submitted that the prosecution was launched under the provisions of the Control Order of 1957 although the said order had been repealed and the new control order namely, Fertiliser Control Order, 1985 had been promulgated at the time of inspection. In view of the aforesaid repeal, police officers did not have jurisdiction to raid and inspect any violation under the new control order. Hence, the appeal ought to be allowed.