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

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 189 of 1989 Smt. Biva Das -Vs-

The State of West Bengal For the Appellant : Ms. Pallavi Priyadarshee (Amicus Curiae)

For the State : Mr. Saryati Dutta Heard on : 22.04.2024, 14.05.2024 , 13.09.2024 Judgment on : 21.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against judgment and order dated 22.04.1989 passed by the Learned Judge, Special Court (E.C. Act), Burdwan in T.R. Case No.54 of 1988 convicting the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for an alleged violation of para 3(1)(b) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and sentencing her to suffer simple imprisonment for 2 years and directing confiscation of three bags of rice containing about 300 quintals of “Atap Rice”.

2. The prosecution case precisely stated on 04.05.1988 at about 10:00 a.m., in the morning the First Informant along with others were on raid duty against rice smugglers at Burdwan Railway Station at platform no.4 that the raiding party found the appellant loading three bags of rice in a second class compartment of 34 Dn. Mughalsarai - Sealdah Express. The appellant was unable to produce any documents authorizing her to carry rice on being challenged. The appellant had thus violated the provisions of para 3 of the West Bengal Rice and Paddy Storage by Consumer Control Order, 1967 as amended on 10.11.1987. The rice was then seized from the possession of the appellant and the appellant was arrested by the First Informant. The arrested appellant and the seized rice were handed over to the police officer at the G.R.P.S. and that the written report of the first information be used for prosecuting the appellant.

3. After investigation, police submitted charge-sheet in the case. The charge-

sheet being placed before the Learned Judge, Special Court, E.C. Act, Burdwan, the court was of opinion that there was a violation of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and took cognizance of the offence.

4. The appellant was examined under Section 251 of the Code of Criminal Procedure when she pleaded not guilty and claimed to be tried.

5. In order to prove its case the prosecution examined as many as 6 witnesses and exhibited certain documents.

6. Learned Advocate for the appellant submitted that: –

i. The prosecution case was inherently improbable inasmuch as the appellant was not physically capable of handling and/or loading a bag of rice containing one hundred kilograms of rice from a platform into a 2nd class bogie all by herself.

ii. The prosecution evidence was inconclusive as to whether the seizure was made on platform no.2 or platform no.4 or the 2nd class bogie of

34 Dn. Mughalsarai – Sealdah Express.

iii. The evidence of the prosecution witnesses being that there were a number of people present at the Burdwan Railway Station including vendors and porters, the non-examination of any independent witness threw a cloud over the veracity of the prosecution and the Learned Special Judge having failed to appreciate the same, the order of conviction and sentence had caused a failure of justice and was liable to be reversed.

iv. The Learned Special Judge, E.C. Court, being a Sessions Judge in effect, he was bound y the law to comply with the provisions of sub- section (2) of Section 235 of the Code of Criminal Procedure, 1973 and there being no compliance of the said provisions. The order of conviction and sentence was liable to be reversed.

v. The trial was vitiated by examine the appellant under Section 313 of the Code of Criminal Procedure but not putting the evidence appearing against her and such procedure being unknown to the said Code, the order of conviction and sentence had caused a gross miscarriage of justice inasmuch as the alleged seizure of ‘Atap Rice’

was not put to the appellant.

vi. The Learned Special Judge not having put the