Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 1926

2009(1) Supreme 272
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Harendra Nath Chakraborty — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No. 2086 of 2008
[Arising out of Special Leave Petition (Criminal) No. 4697 of 2008]
Decided on : 19-12-2008

Advocates appeared:
For the Appellant :Rauf Rahim and Yadunandan Bansal, Advocates.
For the Respondent:Avijit Bhattacharjee, Saumya Kundu and Subrata Biswas, Advocates.

IMPORTANT POINT
Sentence of less than the minimum period prescribed by the Parliament may be imposed only in exceptional cases.

Headnote:Essential Commodities Act, 1955 – Section 7(1)(a)(ii) – Appellant a dealer in kerosene oil having been granted licence in terms of the provisions of the West Bengal Kerosene Control Order, 1968 was convicted for non display of stock of kerosene on display board – Appeal – High Court reduced sentence imposed on appellant from rigorous imprisonment for six months and fine of Rs. 2,000/- to R.I. for three months and fine of Rs.2000/- – Appeal – No evidence adduced by Appellant in defence – No dispute that seized kerosene oil had been put in custody of, son of appellant – The fact that only 450 liters of kerosene oil was found in the shop had, thus, been proved – Evidence on record that all the material evidences brought on record by prosecution had been brought to notice of appellant – Nothing to show as to how appellant was prejudiced, particularly when his son was examined as a witness – Appellant’s son could have given his side of the story which, could have proved his defence, on the basis of material brought on record-Contention of appellant that judgment of conviction and sentence stood vitiated by reason of non-compliance of provisions of Section 313 of the Code of Criminal Procedure, held unacceptable- Keeping in view facts and circumstances of case and nature of allegations made against appellant, held that no failure of justice had occasioned nor the trial was in any way unfair – No case made out to invoke proviso appended to Section 7(1) (a)(ii) of Act particularly in view of fact that appellant was found to have violated provisions of both Orders – Appellant was dealing with an essential commodity like kerosene – If the Parliament had provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto – No such case had been made out instant case – Appeal dismissed. (Paras 18 to 26)
       Facts of the Case :
       Appellant a dealer in kerosene oil having been granted licence in terms of the provisions of the West Bengal Kerosene Control Order, 1968 was convicted herein in the instant case for non display of stock of kerosene on display board. On Appeal, High Court reduced sentence imposed on appellant from rigorous imprisonment for six months and fine of Rs. 2,000/- to R.I. for three months and fine of Rs.2000.
       2.Present appeal has been filed against said order of High Court.
       Findings of the Court ;
       No evidence was adduced by Appellant in defence. No dispute that seized kerosene oil had been put in custody of, son of appellant. The fact that only 450 liters of kerosene oil was found in the shop had, thus, been proved. Evidence on record that all the material evidences brought on record by prosecution had been brought to notice of appellant. Nothing to show as to how appellant was prejudiced, particularly when his son was examined as a witness. Contention of appellant that judgment of conviction and sentence stood vitiated by reason of non-compliance of provisions of Section 313 of the Code of Criminal Procedure,was held unacceptable. Keeping in view facts and circumstances of case and nature of allegations made against appellant, held that no failure of justice had occasioned nor the trial was in any way unfair.No case was made out to invoke proviso appended to Section 7(1) (a)(ii) of Act particularly in view of fact that appellant was found to have violated provisions of both Orders. Appellant was dealing with an essential commodity like kerosene. If the Parliament had provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto.No such case had been made out instant case. Appeal was hence held liable to be dismissed.
       Result : Appeal dismissed.

JUDGMENT

S.B. Sinha, J. —

1.Leave granted.

2.This appeal is directed against a judgment and order dated 29.2.2008 passed by a learned Single Judge of the High Court of Calcutta allowing the appeal in part preferred by the appellant herein from a judgment and order of conviction and sentence dated 16.3.1993 passed by the learned Judge, Special Court (E.C. Act), Hooghly, West Bengal in Special Court Case No. 12 of 1991 convicting him under Section 7(1)(a)(ii) of the Essential Commodities Act,1955 (hereinafter called and referred to, for the sake of brevity, as “the Act”) reducing the sentence imposed on him from rigorous imprisonment for six months and to pay a fine of Rs. 2,000/- in default to suffer R.I. for another one month to suffer R.I. for three months and to pay fine of Rs.2000/- in default to suffer R.I. for 15 days.

3.Appellant was a dealer in kerosene oil having been granted licence in terms of the provisions of the West Bengal Kerosene Control Order, 1968 (for short, “the 1968 Order”) made by the State of West Bengal in exercise of its powers conferred by sub-section (1) of Section 3 of the Act read with clauses (d), (e), (h) and (j) of sub-section (2) of that Section and Section 7 (1) thereof as also the Order No. 26(11)-Com.Genl/66, dated 18th June, 1966.

4.The State of West Bengal apart from the aforementioned 1968 Order made West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 (for short, “the 1977 Order”)

5.Indisputably, kerosene is an essential commodity within the meaning of sub-section (1) of Section 2A of the Act. For dealing in the said commodity, a licence is required to be taken under the 1968 Order. Appellant was holder of a licence bearing No. DP/64 in terms whereof he was entitled to deal in the said commodity.

6.Section 7(1)(a)(ii) provides for imposition of a penalty on a person who contravenes any order made under Section 3 with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. The proviso appended thereto postulates that the court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three months.

7.Manik Lal Das, a Sub-Inspector of Police conducted a raid in the shop of the appellant on 28.1.1991. Several irregularities were found. A first information report was lodged inter alia alleging:

“I started physical verification of stock cum rate board stock register, cash memo book in respect of dealing of K.Oil and found opening stock of K.Oil dated 27.01.1991 as 1500 liters. According to stock register he received 200 liters of K. Oil on the same date i.e. total 1700 liters of K. Oil on 27.01.1991. Out of 1700 liters he sold 1198 liter as per cash memo dated 27.01.1991. As such the opening balance should have been 502 liters on 28.01.1991. But the Harendranath Chakraborty did not put opening balance on 28.01.1991 though the received 1000 liters of K. Oil vide cash memo No. 767, 768 dt. 28.1.1991 from distributor. During physical verification in presence of witnesses (i) Sri Ashoke Kr. Mallick S/o Shri Hardhan Mallick of Alipore, P.S. Dadpur, Dist - Hooghly (ii) Sk. Kasem S/o Late Sk. Rabin of Alipore village, P.S. Dadpore. The total stock of Kerosene Oil was found as 450 excepting sale of K. Oil 257 liters dated 28.01.1991. According to stock register and cash memo book the total stock of K.Oil should have been 1502 liters. As such there is shortage of K. Oil 795 liters.”

8.He did not, however, examine himself. He seized the following articles under a seizure list in the presence of witness as well as the appellant:

“1.One K. Oil licence No. DP/64 in the name of Shri Harendra Nath Chakraborty S/o Dinabandhu Chakraborty of village Alipore, P.S. Dadpore, Dist. Hooghly, valid upto 31.12.1991.

2.One daily stock register in the name of Sri Harendra Nath Chakraborty for K. Oil duly certified by the Inspector Food & Supply Officer

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2008 Supreme(SC) 1926

2009(1) Supreme 272SUPREME COURT OF INDIAS.B. Sinha and Cyriac Joseph, JJ.Harendra Nath Chakraborty — AppellantversusState of West Bengal — RespondentCriminal Appeal No. 2086 of 2008[Arising out of Special Leave Petition (Criminal) No. 4697 of 2008]Decided on : 19-12-2008

IMPORTANT POINTSentence of less than the minimum period prescribed by the Parliament may be imposed only in exceptional cases.

Cases Referred (4)

2009(1) Supreme 272
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Harendra Nath Chakraborty — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No. 2086 of 2008
[Arising out of Special Leave Petition (Criminal) No. 4697 of 2008]
Decided on : 19-12-2008

IMPORTANT POINT
Sentence of less than the minimum period prescribed by the Parliament may be imposed only in exceptional cases.