IMPORTANT POINT
The prosecution must prove illegal possession beyond reasonable doubt, and reliance on police testimony is insufficient if contradicted by independent witnesses.

JUDGMENT :

Partha Sarathi Sen, J.

1. In this criminal appeal, the judgment and order of conviction dated July 26, 1989 as passed in DEBGR 17 of 1988 by the learned Judge, Special Court (Essential Commodities Act), Midnapore has been impugned.

2. By the impugned judgment and order of sentence, learned trial court found the present appellant guilty under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as the ‘said Act’) and thus, sentence the convict to suffer simple imprisonment for two years with fine of Rs. 1,000/- i/d to suffer simple imprisonment for another period of two months.

3. For effective disposal of the instant appeal, the facts leading to the initiation of the aforesaid case is required to be dealt with in a nutshell.

4. One Santosh Kumar Chakraborty, the then Inspector of Police, DEB, Midnapore lodged a written complaint dated April 20, 1988 with the Officer-in-Charge, Sabang Police Station, Midnapore stating, inter alia, that on the basis of a secret information as received by him on the said day, he along with some police personnel attached with the Sabang P.S. held raid in the business place of one Kanailal Maity (appellant herein) who at that material time was found delivering oil with the help of measuring flux to the public from his business place situated at western side of Dashgram-Dehati Pitch road adjacent to Daria mouza in front of the fertilizer shop of one Khudiram Manna.

5. In his written complaint, the informant stated further that he found 14 big drums containing High Speed Diesel oil (hereinafter to as ‘HSD’ in short) and four empty drums. It is his further version that he held measurement of the said oil with the help of a measuring stick in presence of three independent witnesses and found ten full drums of HSD while in other four drums, he found 19, 36, 54 and 80 litres of HSD respectively in total 2460 litres of HSD.

6. It was his further version in his written complaint that on being asked, the accused failed to show any licence or authority for storing and holding such HSD, accordingly, the said oil drums (both containing HSD and empty drums), measuring flux etc. were seized including measuring stick and, thereafter, along with the seized articles and the arrested accused he proceeded to the Sabang P.S. On the basis of such written complaint, Sabang P.S. Case No. 5 dated 20.04.1988 under Section 7(1)(a)(ii) of the said Act was started. Investigation was taken up and on completion of the same, charge-sheet was submitted against the accused under the aforesaid section.

7. Trial court record reveals that on April 24, 1989, the accused was examined under Section 251 Cr.P.C. and during plea, the accused pleads “not guilty” and claimed to be tried and thus trial proceeded. From the trial court records it further reveals that in order to prove the accusation against the present appellant, the prosecution had examined ten witnesses in all. On behalf of the defence though no evidence was adduced either oral or documentary but from the trend of cross-examination as well as from the answers as given by the accused in course of his examination under Section 313 Cr.P.C., it appears to this Court that the defence case is based on clear denial and false implication.

8. Mr. Pati, learned advocate for the appellant in course of his argument at the very outset draws attention of this Court to the evidence of the PWs. 1, 2, 3, 7, 8 and 9. It is submitted by Mr. Pati, learned advocate for the appellant that the aforementioned witnesses being independent witnesses have all turned hostile during their respective examination-in-chiefs and none of the aforesaid private witnesses supported the case of the prosecution. It is further submitted by Mr. Pati that on comparative study of the written complaint, the evidence as adduced by P.W. 6 (informant) and exhibit 8, i.e., the rough sketch map of the P.O., it would reveal that the alleged place of occurrence of the alleged crime is very much