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

The Hon’ble Justice Prasenjit Biswas C.R.A. 435 of 1989 Arun Kumar Dey@ Arun Dey -Versus-

The State of West Bengal For the Appellants : Ms. Monami Mukherjee, (Amicus)

For the State : Ms. Mamata Jana Hearing concluded on : 16.04.2025 Judgment On : 24.04.2025 Prasenjit Biswas, J:-

1. The instant appeal has been directed against the judgment and order of conviction passed by the learned Judge, Special Court (E.C.) Act, Hooghly in connection with case being No. 199/85, whereby and where under this appellant was convicted for commission of offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of Para 3 of the West Bengal Pulses, Edible Oilseeds and Edible Oil (Dealers Liscencing) Order, 1978 and sentenced him to suffer rigorous imprisonment for one year and also to pay fine of Rs. 1000/- in default thereof to suffer further rigorous imprisonment for three months.

2. The brief facts of the prosecution case are that-

On 26.09.1985 police visited the shop-cum-godown of the accused appellant situated at 17, Panchanantala Street, Rishra, P.S. Serampore, Hooghly which was named and styled as “Variety Stores” and found that the stock-cum-rate board was displaying in the shop and it was written up to 25.09.1985. A huge stock of edible oil of the variety of Banaspati/Dalda of various brands were recovered from the shop of the appellant/convict. At the time of checking the appellant being the owner of the shop was not present therein but one Ajay Dutta who happens to be the employee of the appellant was present in that shop. On demand by the police the said Ajay Dutta failed to produce any licence or any authority to carry on trade in edible oil of any such brand. A complaint was lodged by the de-facto complaint against the accused person under Section 7(1)(a)(ii) of the E.C. Act for violation of Para 3 of the West Bengal Pulses, Edible Oilseeds and Edible Oil (Dealers Licencing) Order, 1978 and Para 3(2) of the West Bengal Declaration of Stock of Prices of E.C. Order, 1977. After completion of investigation charge-sheet was submitted against the accused persons. The accused person was examined under Section 251 of Cr.P.C. and they pleaded not guilty and claimed to be tried.

3. In this case, five witnesses were examined by the side of the prosecution.

Neither any oral, nor any documentary evidence was adduced by the side of the defence.

4. Ms. Monami Mukherjee, learned Amicus Curiae for the appellant submits that the learned Special Judge has failed to appreciate the facts and circumstances of the case and came to an erroneous finding. It is said that there are major discrepancies in the prosecution case which was overlooked by the learned Special Judge and those discrepancies appeared in the prosecution case is not at all a mere discrepancy. It is said by the learned Advocate that the complainant (PW1) did not have jurisdiction to search and seized the articles without complying the provisions of Para 13 (e) of the West Bengal Pulses, Edible Oilseeds and Edible Oil (Dealers Licensing) Order, 1978. The complainant failed to record reasons to believe that any provision of this order dated 1978 has been, is being or is about to be contravened in respect of such stock or any part thereof before proceeding to search the shop. Reliance has been made by the learned Advocate upon the decisions reported in (1979) 2 SCC 115 (K.L. Subbayya –vs.-State of Karnataka) and the decision reported in 1990 C Cr LR (Cal) 197 (New Roy Trading Co. & Ors.-vs.- State of W.B. & Ors). So, as per submission of the learned Advocate, the search and seizure made by the complainant was done in contravention of the provisions of Para 13(e) of the above sated order.

5. It is further assailed by the learned Advocate that the articles were recovered from the two shops one is owned by the appellant and other is owned by the brother of the appellant as would