In criminal trials, the prosecution must prove the seizure of contraband beyond reasonable doubt. When independent witnesses fail to corroborate the recovery and provide evasive testimony, the prosecution's failure to declare them hostile renders the recovery doubtful, necessitating an acquittal due to lack of evidence.

1. In this appeal, the judgment and order dated 11.09.1986 as passed in G.R.E. No. 37/85, T.R. No. 23/86 by the learned Judge, Special Court, Essential Commodities Act, Murshidabad is impugned. By the said judgment, the learned trial Court found the present appellant guilty under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the said Act of 1955) for violation of the provisions contained in paragraph 4 of the West Bengal Kerosene Control Order, 1968 (hereinafter referred to as ‘the said Control Order) and thus, convicted him under Section 255(2) Cr.P.C. and sentenced him to suffer simple imprisonment for three months and to pay fine of Rs. 3,000/- in default to suffer further simple imprisonment for two months.

2. The convict felt aggrieved and, thus, preferred the instant appeal.

3. For effective adjudication of the instant appeal the facts leading to initiation of the aforementioned case before the learned trial Court is required to be dealt with in a nutshell.

4. On 13.09.1985 one Nirmalendu Sarkar, S.I., DEO Head Quarter lodged a written complaint with the Officer-in Charge, Hariharpara Police Station stating, inter alia, that on the said day in between 12.30 hours and 14.30 hours acting on a source information he along with three other police personnel, namely, Constable Chittaranjan Dey, Constable Tapan Chattaraj and HQD 62 Pravanjan Debnath entered into the house of Abdus Salam (the appellant herein) along with two private individuals, namely, Ahmed Ali and Asgar Ali. It has been stated in the said written complaint further that after observing all the procedure, he conducted search in the house of the accused and recovered 630 litres of kerosene oil stored in four barrels. It has been stated further that the said accused could not advance sufficient explanation with regard to the possession of the said kerosene oil and he also could not produce any licence for storing the said kerosene oil.

5. In the said complaint, it has been stated further by the informant that on being asked, the accused Abdus Salam stated to him that he has stored the kerosene oil for adulterating diesel in the kerosene oil. The informant thereafter seized the said kerosene oil after taking measurement along with measurement can and funnel in presence of the aforementioned two private individuals by executing a seizure list and thereafter he brought the seized alamats and the accused before the said O.C.

6. On the basis of the said written complaint, Hariharpara P.S. Case No.3 dated 13.09.1985 was started and on conclusion of investigation, charge-sheet was submitted against the accused under Section 7(1)(a)(ii) of the said Act of 1955.

7. On 12.04.1986, the learned trial Court took up the said case for plea and at the time of examination of the accused under Section 251 Cr.P.C, the details of the accusation was read over to him to which the accused pleads his innocence and claimed to be tried and accordingly, before the trial Court trial proceeded.

8. In order to bring home the accusation, seven prosecution witnesses have been examined and some documents have also been exhibited on behalf of the prosecution. Trial Court record reveals further that though on behalf of the defence no oral evidence was adduced, but one document has been exhibited on behalf of the defence being the certified copy of Khatian No.338 of Mouza – Jiterpur under P.S. Hariharpara.

9. Learned trial Court after considering the evidence both oral and documentary found that the prosecution is successful in bring home the accusation against the accused and thus, convicted and sentenced him by passing the impugned judgment.

10. Ms. Saha, learned advocate appearing on behalf of the appellant, in course of her submission at the very outset draws attention of this Court to the evidence of P.W.1 and P.W.2, who according to the prosecution are two independent witnesses to the seizure. It is submitted by her that on perusal of the evidence