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

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 302 of 1990 Md. Saiful Sk.

-Vs-

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

For the State : Ms. Faria Hossain Ms. Mamta Jana Heard on : 10.05.2024, 09.09.2024 Judgment on : 21.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against an order passed by the Learned Judge, Special Court, E.C. Act, Murshidabad on 31st May, 1990 in E.C. Case No.73 of 1988 (T.R. No.87/88), convicting the appellant on a charge under Section 7(i)(a)(ii) of the Essential Commodities Act and sentencing him to suffer rigorous imprisonment for 6 (six) months.

2. The appellant was placed in the proceeding being E.C. Case No.73 of 1988 (T.R. No.87/88) to answer the allegations under Section 7(i)(a)(ii) of the Essential Commodities Act for alleged violation of para 4 and para 2 of West Bengal Rice and Paddy Control Order, 1967 and paras 5(3)(a) and 8A of the West Bengal Declaration of Stock and Prices E.C. Order, 1977 as also Section 6(2)(a) of Act XXIV of 1958 and para 3(7) of the West Bengal Motor Spirit and High Speed Diesel Oil (Licencing Control and Maintenance of Supply) Order, 1980.

3. The relevant portion of the judgment in E.C. Case No.73 of 1988 passed by the Learned Judge, Special Court reflected as follows:-

“The then D.E.O., Murshidabad Zone, since retired, raided the grocery shop of the accused at Kaharpara Bazar along with other Police Officers and seizure list witnesses, PW-1 & 2. Accused was present and had exposed essential commodities for sale in the shop. On demand accused could not produce any book or khata. The D.E.O. found one Declaration Board which was written up to 28.7.88. It was also noticed that acused had stored 5 tins of rapeseed, 2 barrels of dissel for which he could not show any licence or permit. Accused has stored one barrel of kerosene oil having no licence or permit thereby violating para 4 & 11(2) of the West Bengal Kerosene Control Order, 1968. Further he stored rice 2 quintals in violation of provisions of West Bengal Rice & Paddy (Licensing and Control) Order, 1967. The D.E.O. seized the articles in the shop by preparing a seizure list in presence of witnesses (Ext.1/2) copy of which was made over to the accused who acknowledged. He left the seized good including the board in zimma of the accused. Thereafter he arrested the accused and produced him at Raninagar PS where he lodged written complaint which was treated as FIR (Ext.2). On the basis of such written complaint, Raninagar PS recorded formal FIR (Ext.3) and O/C endorsed the case to Sri P.P. Ghosh, the de facto complainant for investigation who upon investigation submitted charge-sheet against accused u/S. 7(i)(a)(ii) E.C. Act for alleged violation of para 4 and para 2 of II of W.B. Kerosene Control Order, 1963 and paras 5(3)(a) of Act 8A of the W.B. Rice and Paddy Control Order, 1967 and para 3 of the West Bengal Declaration of Stock and Prices E.C. Order, 1977 as also Sec. 6(2)(a)(b) of Act XXIV of 1958.”

4. The prosecution examined 3 witnesses in all and appellant examined one defence witness.

5. The Learned Amicus Curiae representing the appellant submitted as follows:-

i. PW-1 stated in his evidence “I cannot state if there was rapeseed but accused had stored salt, mustard oil etc. Accused does not sell kerosene oil and diesel but he keeps rice for his own consumption.” PW-2 stated in his evidence “I cannot state if accused stored kerosene, diesel or rice in his shop. PWs 1 and 2 did not support the prosecution case and were not declared hostile by the prosecution.

ii. The description of go-down was indefinite. In the F.I.R. it was described that it was an open go-down. PW-3 who was the author of the F.I.R. described in his evidence that the go-down was attached to the shop.

6. The Learned Advocate representing the State submitted that the prosecution was able to prove its case an