JOYMALYA BAGCHI, J. - (1.) THE appeal is directed against the judgement and order dated 09.01.1986 passed by the learned Judge, Special Court, E.C. Act of Alipore, convicting the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 10,000/ -, in default, to suffer rigorous imprisonment for three months more with a direction that 50% of the fine, if realised, be paid to P.W. 5, Sudhir Malakar by way of compensation.
(2.) PROSECUTION case, as alleged, against the appellant is as follows : - The appellant is the proprietor of M/s. Eastern Trade Enterprises (ETE for short) which was a transport -cum -handling and storing agent of levy cement under West Bengal Essential Commodities Supply Corporation Ltd.(Corporation for short) having its godown at Bornefild Row, Kolkata 700 027 within P.S. Ekbalpur.
(3.) ONE Sudhir Malakar, (PW 5) applied before the Corporation for issuance of levy cement for the purpose of constructing his house at 64/1 Pallisri, Maharani Indira Debi Road, Kolkata 700 060. Corporation issued a delivery order to the tune of 10 MT levy cement in his favour. Such delivery was to be taken from the godown of ETE, the agent of the Corporation, against the payment of Rs. 9291.85 as price of the said cement. Such amount was paid by PW 5 to the Corporation and 10 MT of levy cement was delivered in 200 bags from the godown of ETE to PW 5 on 29.11.1983. PW 5 commenced construction work by using such cement. W hile construction was in progress it was noticed that concrete on the mortar was not drying up and the RC columns of the construction gave way on being pressed with thumb within a week of its casting. Accordingly, suspicion arose as to the quality of the cement taken delivery from the godown of ETE and PW 5 suspended the construction work. He lodged complaint with the Corporation with regard to quality of the cement. 122 bags of cement were remaining unused at that time. On the basis of such complaint, the Corporation took samples of cement from some of the unused bags on 25.01.1984. Sample was sent to Director General, National Test House, Alipore on 23.02.1984 and on analysis of the cement National Test House opined that the same was not of prescribed substandard. Corporation lodged complaint with the Officer -in -Charge, Ekbalpur Police Station against the appellant for commission of offence punishable undersection 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3 of Cement Quality Control Order, 1962. During investigation, 122 bags of cement were seized from PW 5. In conclusion of investigation, charge sheet was filed under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3 of the Cement Quality Control Order, 1962 against the appellant. Substance of accusation was read out and explained to appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 11 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, trial Court by judgement and order dated 09.01.1986 convicted the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 10,000/ -, in default, to suffer rigorous imprisonment for three months more with a direction that 50% of the fine, if realised, be paid to P.W. 5, Sudhir Malakar by way of compensation. Hence, the present appeal. Mr. Ranadeb Sengupta, learned advocate appearing for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. He submitted that the alleged sample was drawn behind the back of the appellant. There is no evidence on record as to the manner in which it was preserved prior to its despatch for examination at the National Test House. There is also inordinate delay in sending sample for examination. He submitted that there is evidence on record that PW 5 had obtained cement from other sources also to complete his construction. He further submitted that there was noidentification marks on the cement bags seized from the possession of PW 5 to establish that they were supplied from the end of the appellant s firm. Accordingly, he submitted that the conviction and sentence imposed upon the appellant be set aside.;