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

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 221 of 1989 Smt. Sumitra Kundu -Vs-

The State of West Bengal For the Appellant : Mr. Subhrajit Dey (Amicus Curiae)

For the State : Ms. Faria Hossain Ms. Janaki Saha Heard on : 10.05.2024, 06.09.2024 Judgment on : 21.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against judgment and order dated 10.05.1989 passed by the Learned Judge, Special Court, Burdwan in T.R. Case No.53 of 1988 convicting the appellant under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 for an alleged violation of para 3(i)(b) of the West Bengal Rice and Paddy Control Order, 1967 and sentencing her to suffer simple imprisonment for 2 years and directing confiscation of seized rice.

2. The prosecution case precisely stated on 04.05.1988 at about 10:00 a.m., the first informant along with others were on raid duty against Rice smugglers at Burdwan railway station at platform no.4, the raiding party found the appellant loading 3 bags of rice in a 2nd class compartment of 34 Down 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 10.11.1967. The rice was seized from the possession of the appellant and was arrested by the first informant.

3. After completion of investigation, the Police submitted charge- sheet against the appellant.

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. The 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 Kilogram of rice from a platform into a 2nd class coach all by herself and the Learned Special Judge did not consider the same.

ii. The prosecution was inconclusive as to whether the seizure was made on platform no.2 or platform no.4 or the 2nd class coach of 34/Down Mughalsarai – Sealdah Express the number of which no prosecution witness could provide.

iii. The evidence of PW-2 being that the seizure list was written afterwards at the G.R.P.S., Burdwan the said fact granted credibility to the defence version that the appellant was apprehended on mere suspicion when a number of people including herself were rushing about in a bewildered manner.

iv. The evidence of the prosecution witness being 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 case.

v. The Learned Special Judge should not have disbelieved the DW-1.

7. The Learned Advocate representing the State in utter fairness submitted that the prosecution case was devoid of merits.

8. A circumspection of evidence of the prosecution witnesses revealed PW-1 the Sub-Inspector of Police admitting 3 quintals of boiled rice to have been recovered from the appellant. However, the said quantity of seized rice was not produced before the Court. PW-2 stated to have found some rice in one second class compartment of the train claiming the appellant to be the owner of the rice. The evidence of PW-1 and PW-3 was corroborated by PW-3, PW-4, PW-5 and PW-6.

9. None of the prosecution witness could cite an independent witness to have seen the rice being transported through the train by the appellant being the owner of the same. The ownership of the rice apart from suspicion and apprehension could not be proved by the prosecution.

10. The prosecution miserably failed to prove its case in entirety apart from suspicion. The p