A charge under Sections 120B/409 of the Indian Penal Code is not maintainable if it indicates rolled up conspiracy and causes prejudice to the accused persons. A public servant cannot be prosecuted for an act done in the discharge of his official duty without obtaining sanction.

N. C. Mukherji, J. :- These appeals have been filed against an order of conviction dated 31-7-70 passed by Shri S.C. Majumdar, Judge Calcutta Third Additional Special Court, Calcutta.

2. Criminal Appeal No. 335 of 1970 has been filed by Krishnalal Naskar, Banobir Burman, Mata Prosad Ghose and Brahmananda Sarkar. They were convicted under S.409/109 IPC and sentenced to R. I. for one year. Criminal Appeal No. 336 of 1970 has been filed by Suresh Ch. Saha who has been found guilty under S.409 and 409/120B IPC and sentenced to R. I. for one year under each count. It was ordered that the sentences would run concurrently. Cr. Appeal No. 337 of 1970 has been filed by Alik Narayan Jha alias. Alik Narayan Ojha against an order of conviction under S.409/120B and sentenced to R. I. for one year. The other accused persons, namely, Bina Devi, Lalmohon Pal Aurobinda Mukherji, Manotosh Mitra. Oremlal Parasar, Sumanbhai Patel and Reba Chakrahorty were found not guilty under S.409/120B IPC and were acquitted. These three appeals were taken up together. All the accused persons were charged under S.409/120B IPC for entering into a conspiracy in respect of criminal breach of trust of consignment of petrol. Accused Suresh Saha was further charged under S.409 IPC in respect of criminal breach of trust of consignment of petrol dated 20-7-62, 26-7-62, 31-7-62, 2-8-62 and 21-8-62.

3. The facts of the case may briefly be stated as follows :-

After the partition of Bengal in 1947 there was a vast influx of refugees and a Special Department was opened which was named Refugee Relief and Rehabilitation Department. The Calcutta Office of this branch was established at 10A. Auckland Road, though the directorate was situated at Writers' Buildings. The main function of this Department was to ameliorate the condition of the refugees and make provision for their rehabilitation within and outside the State. For the purpose of transport facilities a fleet of trucks and other vehicles was necessary and for that purpose the department owned a fleet of 54 vehicles with drivers and cleaners, of which 46 were in running condition during the relevant period. At the outset, for the consumption of petrol coupons were issued to other petrol pumps from which the drivers of the trucks and vehicles used to lift the petrol. But that was soon found to be uneconomic and it was decided to install a petrol pump within the coma pound of the building situated at 10A, Auckland Road in pursuance of a contract entered into by the department with Standard Vacuum Oil Company, popularly known as Esso Company. Petrol was indented from the Esso Company and deposited in the underground tank of the department wherefrom it was issued to different trucks and vehicles. The receiving section indented and received petrol into the tank and issuing section as per slips issued petrol to different vehicles and trucks and maintained an account of the same. The receiving section was originally operated by Shri Surendramohon Sengupta, the store keeper who received petrol till 1961. After Shri Sengupta ceased to do that work P.W. 12 - Debabrata Ghosh (the accused who subsequently turned approver) did all the works of the store keeper with the permission of Major Brahma. Debabrata Ghosh was the petrol clerk and he joined the department on 10/11 April, 1957. His works were to indent petrol and mobile oil, to receive the same, to maintain the stock book and to get them signed by Major Brahma on receipt of petrol. Confirmation slips were issued sometime after the confirmation of the receipt of petrol upon which bills were sent by ESSO Company with the attached confirmation slip. The underground tank had a capacity of 2000 gallons or 9,100 liters of petrol. There were two pipes to the underground tank. One was called the dip pipe and the other the fill up pipe. Through the dip pipe measurement was taken by a measuring rod and the quantity of petrol was calculated with the help of a calibration chart and