IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas C.R.A. 492 of 1986 Prachhya Chowdhury & Anr.

-Versus-

The State of West Bengal For the Appellant : Mr. Arindam Jana, Mr. Kamal Chaudhury, Mr. Yuvraj Chatterjee, For the State : Ms. Faria Hoosain, Ld. APP Mr. Karan Bapuli.

Hearing concluded on : 02.05.2025 Judgment On : 22.05.2025 Prasenjit Biswas, J:-

1. This instant appeal is preferred at the behest of the appellant challenging the impugned judgment and order dated November 19, 1986 passed by the learned Judge, Special Court, Howrah in connection with Special Court Trial No. 9 of 1985.

2. By passing the impugned judgment and order this appellants are found guilty for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, for violation of paragraphs 4 and 21 of the Fertilizer (Control) order, 1957 and is sentenced to suffer rigorous imprisonment for a period of four months along with a fine of Rs. 200/- each and in default of payment to suffer further simple imprisonment for a period of one month and forfeited the seized goods to the State.

3. In short campus the story of the prosecution is delineated hereunder:

“On 25.01.1984 at 10:00 hrs. the de-facto complainant who was the Inspector of Police attached to D.E.O., Howrah along with other staffs on the basis of secret information visited the fertilizer shop of the accused Prolay Chowdhury which is situated at Ghoraghata Bazar, Bagnan, Dist- Howrah. At the time of visiting by the officials the owner of the shop namely, Prolay Chowdhury was not present but the other accused Prachhya Chowdhury was found present in the shop and he was selling fertilizer to the customers. The police officials served a notice to the accused Prachhya Chowdhury for production of all the relevant records, books of account for dealing in fertilizer but the Prachhya Chowdhury failed to produce any cash memo, credit memo, sale register, stock register etc. Thereafter, the police officials made physical verification of different kinds of fertilizer found in the shop which did not tally to stock-cum-rate board. The police officials seized the fertilizer and the stock-cum- rate board by preparing the seizure list in presence of the witness and the accused Prachhya Chowdhury. The seized fertilizer and the licence were given ‘zimma’ to the accused Prachhya Chowdhury after preparing zimmanama. The accused Prachhya Chowdhury was arrested and brought to Bagnan Police Station where a written complaint was lodged on which a police case being Bagnan P.S. Case No. 12/dated 25.01.1985 was started. Thus, the criminal law was set in motion. Police investigated the case and submitted the charge-sheet against these appellants.”

4. In this case, four witnesses were cited by the side of the prosecution and the defence has examined three witnesses.

5. Mr. Arindam Jana, learned Advocate for the appellant submitted that the impugned judgment is full of surmises and conjectures not borne out by any materials on record. It is said by the learned Advocate that at the time of alleged raid only Prachhya Chowdhury was present. In the written complaint it is stated by the defacto complainant that on reaching at this spot he found the said Prachhya Chowdhury was present but the owner of the shop i.e. appellant no. 1 Prolay Chowdhury who happens to be elder brother Prachhya Chowdhury was absent but at the time of giving deposition PW1, Santosh Chakraborty stated that both the accused was present in the shop on 25.01.1985 when he visited therein which is purely contradictory to the statement made in the written complaint. It is said that at the time of giving deposition PW4 sub-inspector Anil Bhattacharyya specifically stated that he had no source of information that the accused was selling fertilizer without cash memos and there was no reason to believe that an offence had been, was being or was about to be committed and as such, the