Sm. Biva Das v. The State Of West Bengal

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 -VsThe 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 chargesheet 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 subsection (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 alleged piece of evidence to the effect that the appellant had not valid authorization under the law to carry to the 'Atap Rice' in question to the appellant at the time of her purported examination under Section 313 of the Code of Criminal Procedure, 1973, he could not, in law, had taken note of such evidence when finding the appellant guilty and thus the order of conviction and sentence was illegal and was liable to be reversed.

vii.

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

No reason being ascribed by the Learned Special Judge as to why the DW-1 should be disbelieved the order of conviction and sentence was liable to be reversed.

ix.

The Learned Special Judge had erred in law in imposing a sentence of two years without indicating as to why such a long term of imprisonment was necessary and as such the order of conviction and sentence ought to be reversed.

7. The Learned Advocate for the State submitted that the prosecution was able to prove its case beyond reasonable doubt and the appeal shall be dismissed.

8. Considered the submissions of the Learned Amicus Curiae as well as the Learned Advocate for the State.

9. The oral as well as the documentary evidence on record failed to establish that the appellant had purchased the rice for the purpose of trading or selling the same to the other people.

10. Apart from assertion of three bags of rice to be recovered from the possession of the appellant, the same was not weighed or quantified. Mere suspicion of assumption cannot be lead to the conviction of the appellant in dearth of proper evidence.

11. In the decision of Tarak Nath Keshari Vs. State of West Bengal1, the Hon'ble Apex Court held as follows:- "7. Heard learned counsel for the parties and perused the paper book. The fact that inspection of the shop of the appellant was carried out on 20.8.1985, hence the incident had taken place more than 37 years back. As was pointed out at the time of hearing, the appellant throughout remained on bail. Section 7(1)(a)(ii) of the EC Act under which the appellant has been convicted, provides as under:- "7. Penalties - (1) If any person contravenes any order made under Section 3,- (a) he shall be punishable,- (i) ....

(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;"

8. A perusal of the aforesaid Section shows that the Court may, for adequate and special reasons, impose punishment less than the minimum prescribed in the Section. However, the fact remains that the offence in the case in hand was committed on 20.8.1985 and in terms of the Essential Commodities (Special Provisions) Amendment Act, 1981, the proviso was not in force on that date.

9. As far as the case of the appellant on merits is concerned, we do not find that any case is made out for interference in the concurrent findings of the facts recorded by all the courts below. It was found that the stock of mustard oil and vegetable oil found at the shop of the 12023 SCC OnLine SC 605

appellant was more than the permissible limit, hence, this was violative of para 3(1) of the West Bengal Pulses, Edible Oil (Dealers Licensing) Order, 1978.

10. However, still we find that a case is made out for grant of benefit of probation to the appellant for the reason that the offence was committed more than 37 years back and it was not pointed out at the time of hearing that the appellant was involved in any other offence. Before all the courts below, the appellant remained on bail. While entertaining his appeal, even this Court had granted him exemption from surrendering. Section 4 of the Probation of Offenders Act, 1958 has a non obstante clause. The same is extracted below: "4. Power of court to release certain offenders on probation of good conduct.

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab."

12. In view of the observations as cited above, the appellant can be released on probation since the incident related to the year 1988. The appellant to be taken into custody to serve out the sentence would not be expedient in the interest of justice after a lapse of nearly 37 years.

13. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond of Rs.5,000/- to ensure that she will maintain peace and good behaviour for the remaining part of his sentence, failing of which she can be called upon to serve the sentence. Fine to be paid of Rs.5,000/- within 06 (six) months from the date of this order failing which she shall be called to serve out the sentence.

14. I appreciate the able assistance rendered by Learned Advocate Ms. Pallavi Priyadarshee as Amicus Curiae appearing for the appellant, in disposing this appeal.

15. The Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action.

16. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)