BIKASH CHANDRA SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal arose out of a judgement and order dated 2nd April, 1985 passed by the learned Judge, Special Court, Nadia in E.C. Case No. 14 of 1984 (T.R. No. 17 of 1984) convicting the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act and sentencing him to suffer rigorous imprisonment for six months and to pay fine of Rs. 1000/-, in default to suffer rigorous imprisonment for a further period of three months and directing that the seized fertiliser be forfeited to the State.

(2.) The prosecution case in short is that on 19th March, 1984 at 5.30 p.m. the District Enforcement Officer, Kaligunj and A.D.O. Kaligunj visited the wholesale fertiliser shop of the accused Bikash Chandra Saha situated at Matiari under Kaligunj Police Station on the basis of an information that the accused was running the wholesale business of fertiliser at the same place without having any licence. When those officers went to the shop, the accused was not available and the shop was locked, so they sealed the shop. On the next day at about 1.45 p.m. District Enforcement Officer-1, Sadar, Block Development Officer, Kaligunj, Agricultural Development Officer, Kaligunj along with some police officials visited the said shop in presence of local witnesses and found the same under lock and key and the seal intact. On that day also the accused was not available. On being asked the father of the accused, Bangsi Badan Saha about his son, he failed to give the whereabouts of his son, but on demand by the officials, he produced keys of both the sealed locks. Thereafter, the locks were opened after breaking the seal in presence of witnesses and they found considerable quantity of fertilisers of different varieties kept in bags inside the shop. There was no licence or any other documents and all the articles were seized under a seizure list for violation of clause (3A), (4), (5) & (21) of the Fertilisers (Control) Order, 1957. A complaint was made on that day at 6.20 p.m. at Kaligunj Police Station, which gave rise to Kaligunj P.S. Case no.9 dated 20th March, 1984. Investigation was started by D.E.O. and on completion of investigation, charge sheet was submitted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1981 on 30th March, 1984.

(3.) Learned advocate for the appellant submitted that the appellant ran the fertiliser shop till 31st March, 1983 along with his father and thereafter, he applied for a fresh licence in his name since the earlier licence issued to his father had expired. He was waiting for the licence to be granted by the authority concerned and did not deal with fertiliser in the meantime. He has also submitted that P.W.2, Utpal Sen was public witness and in cross-examination he stated that the appellant did not deal with fertiliser from 31st March, 198 The said witness was not declared hostile. If the prosecution has not declared any witness hostile, then such evidence is binding on the prosecution. Even the evidence of local witnesses goes to show that the police officials seized the fertilisers from the godown, which was unlocked by them on 20th March, 1984 and as such, it could not be said that the prosecution proved the accusation that the appellant dealt with the business of fertiliser without having any licence. He has further submitted that since the appellant had applied for issuance of fresh licence, there was no criminal intention on the part of the appellant to deal with fertiliser unauthorisedly. He has further argued that the learned Judge erred in holding that the appellant contravened paragraph 5 of the Fertilisers (Control) Order by carrying on business of selling fertiliser and offer for sale such fertiliser by publication of price list and by exposing the fertiliser for sale. The learned Judge also erred in holding that the appellant contravened paragraphs 14 and 21 of the Fertilisers (Control) Order by not issuing any memo to the purchaser or by not maintaining any register, which was required to be done under the said Order. Lastly, he has submitted that the examination of the appellant under Section 313 of the Code of Criminal Procedure was defective and prejudicial, as it did not offer the appellant a full and complete opportunity of explaining the facts and circumstances allegedly appearing against him from the record.