Reasonable doubt in the prosecution's case and the lack of conclusive evidence led to the acquittal of the appellant.

JUDGMENT

The instant appeal has been preferred against the judgment and order dated 22.08.1989 passed by Learned Special Judge (EC) Act Midnapur in DEBGR case No. 31/85 convicting thereby the present appellant u/s 7(1) (a) (ii) of the Essential Commodities Act 1955 and sentence him to suffer rigorous imprisonment for 06 months and to pay a fine of Rs 500/- in default to suffer rigorous imprisonment for one month. The brief fact of the prosecution case is that on 22.06.1985 between 9:50 Hrs. And 13:35 Hrs. One Mani Sarkar, Inspector, DEO Midnapur (FW 10) (complainant) inspected business place of the appellant at Kanchanpur, Keshiari, Midnapur. It has been alleged that shop was closed from 20.06.1985 to 22.06.1985 as such the complainant along with other police officers broke upon the door and found 21 quintals of rice excess in comparison with the stock-cum-rate board, 35kg. Mastered oil, 15kg. Dalda, 99 kg. Rapeseed oil in huge tins of STC brand and another 24 Kg. In open tin and 17 bags of washing soap in the godown. It has been further alleged that all the commodities were seized and were kept in jimma of one Bibhuti Bhusan Panigrahi. The complainant endorsed the case to one P.C. Adhikary, DEO, Belda for investigation.

To prove the case the prosecution has examined as many as 11 witnesses out of which PW 1 was a seizure witnesses PW 2 is the person who broke upon the lock of the door and prepared seizure list, PW 3 received the written complaint from the complainant, PW 4 prepared normal FIR, PW 5 is a seizure witness, PW 6 is the jimmadar, PW 7 and PW 8 are the seizure witnesses who declared hostile by the prosecution, PW 9 is the owner of the house where the commodities are seized. PW 10 is the complainant and PW 11 is police personnel who identified the signature of the I.O.

After completion of the trial the Learned Special Judge, found the present appellant to be guilty and convicted him u/s 7(1) (a) (ii) of the Essential Commodities Act for contravention of Para 3 (1) (2) of the West Bengal Imported vegetables oil (provisions of unauthorised sale) order 1984 and those of Para (16) (A), (16) (B) 18/19(a)/4/19(B) of the West Bengal Rice and Paddy Licensing and Control Order 1976 and sentencing him to suffer rigorous imprisonment for 06 months and to pay a fine of Rs 500/- in default to suffer rigorous imprisonment for one month more.

Being aggrieved by and dissatisfied with the said order of conviction the instant appeal has been preferred. Learned Advocate for the appellant submits that the impugned judgment and order of conviction passed by the Learned Special Judge is inappropriate and violative to the provision of law. The prosecution has not submitted any report of the chemical examination to show that the oil seized is imported vegetable oil of edible form, has such the observation of Learned Special Judge regarding the contravention of provision of Para 3(1) (2) of the said order of 1984 is erroneous. The investigating officers namely P.C. Adhikary never examined by the prosecution which raised great doubt in favour of the defence. He also argued that the evidence of the prosecution would show that the appellant was not present at the time of seizure. Some of the seizure witnesses went hostile so Learned Special Judge should not place reliance upon the evidence of seizure.

Further more it would be revealed from the entire case that the shop room of the appellant was broke upon by PW 2. The police authority could not show any document to search the shop room of the appellant by breaking it open. No notice has been served upon appellant before broke open the shop room. The entire case was initiated on the behest of the police authority in connection with another criminal case filed under the provisions of IPC. So he prayed for setting aside the impugned judgment and order of conviction.

Learned Advocate appearing on behalf of the State submits that total 11 witnesses were examined in this case huge quantities of articles w