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

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 193 of 1990 Sambhu Show -Vs-

The State of West Bengal For the Appellant : Mr. Pawan Kumar Gupta For the State : Ms. Faria Hossain Ms. Kanchan Roy Heard on : 02.05.2024, 04.09.2024 Judgment on : 21.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against an order passed by the Learned Judge, Special Court under Essential Commodities Act, Howrah on 28.03.1990 in Special Court Case No.105 of 1988, convicting the accused appellant to suffer rigorous imprisonment for 3 months and to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for another 3 months.

2. The prosecution case precisely stated on 24.05.1988 at about 18 hours the D.E.B. police officials visited the grocery shop of Gopal Show situated at 168 Girish Ghosh Road, Howrah and found one person running the shop. Kerosene oil and rapeseed oil were found inside the said shop. In terms of provisions of the Essential Commodities Act, a notice was served on the said person being Sambhu Show but in spite of serving of the said notice he could not produce any licence and/or any authority in respect of kerosene oil and rapeseed. On physical verification the said officials found 51 kg of rapeseed oil, 3 tins each containing 15 kgs, labled with S.T.O. brand and 1 open tin containing 6 kgs. of rapeseed oil. They also found 190 litres of kerosene oil contained in 7 tins, 2 small drums, one 10 litres and another 35 litres in a drum. That apart measuring pots were also found. The D.E.B. officials seized the aforesaid articles and a seizure list was prepared to that effect. The accused Sambhu was arrested and taken to Bally Police Station where on the basis of a complaint of Sri. S. K. Chakraborty (PW-2) the Bally Police Station case No.18 dated 24.05.1988 was started. Another accused Gopal Shaw was also charged along with the present appellant.

3. The prosecution examined 5 witnesses in support of their contentions. The defence was a denial of the charges.

4. The accused persons faced trial for violation paragraph 11(2) of the West Bengal Kerosene Control Order 1968 and paragraph 3(1) and (2) of the West Bengal Imported Vegetable Oil (Prohibition of Unauthorised Sale) Order, 1984 so as to be liable under Section 7(1)(a)(ii) of the Essential Commodities Act.

5. The Learned Trial Judge acquitted the accused Gopal Show but convicted the appellant Sambhu Show to suffer rigorous imprisonment for 3 months and to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for another 3 months for violation of paragraph 11(2) of the West Bengal Kerosene Oil Control Order, 1968 and the charge for violation of paragraph

3(1) and (2) of the West Bengal Imported Vegetable Oil (Prohibition of Unauthorised Sale) Order, 1984 fell on merit.

6. The Learned Judge misconceived the law in finding the accused/appellant guilty for violation of the provisions of paragraph 11(2) of the West Bengal Kerosene Oil Control Order, 1968 inasmuch as it was required to prove that the seized oil was kerosene oil and no authority and/or valid documents was produced by the accused person. The prosecution miserably failed to prove that the seized alleged kerosene oil was actually kerosene oil.

7. The Learned Advocate representing the appellant submitted as follows:-

i. Not even a single disinterested witness had been examined in support of the prosecution case. Moreover, PW-3 Baidyanath Ganguly categorically stated that there were customers in the said shop and the articles were seized in their presence. None of such customers were produced before Court.

ii. There was no evidence on record to show 500 ml. sample of kerosene oil had been taken by the complainant S. K. Chakraborty (PW-2) from the seized kerosene oil and sent to the expert. The expert reports revealed a sample of 200 ml. had been forwarded in a sealed parcel.

8. The Learned Advocate representing