- (1.) The appeal is directed against the judgement and order dated 08.12.1986 passed by the learned Judge, Special Court, E.C. Act of Howrah, in SCT 67/85 convicting the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of paragraph 12(1) of the West Bengal Kerosene Control Order, 1968 (hereinafter referred to as "the Order of 1968") and sentencing him to suffer simple imprisonment for four months and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for ten days more. Prosecution case, as alleged, against the appellant is to the effect that PW 1 along with others inspected the kerosene oil-cum-grocery shop of the appellant and found that the latter was dealing in essential commodity, namely, Kerosene oil. PW 1 wanted to see books of accounts and other documents relating to suchbusiness of kerosene oil and served a notice upon the appellant. Pursuant thereto, the appellant produce sale register, stock register, log book, purchase cash memos. On perusal of sale register it was found that the same was no written upto date. On physical verification there was 440 liters kerosene oil and a shortage of 110 liters of kerosene oil was detected on comparison of physical verification with the entries in the stock register. PW 1 arrested the appellant and granted him bail on PR bond as he was ill. PW 1 seized licence, purchase cash memo, stock register, sale register, physical stock of kerosene oil from the shop of the appellant. He prepared a seizure list and kept the seizure articles in the Zimba of the appellant. PW 1 lodged complaint resulting in registration of Howrah P.S. Case No. 18 dated 14.06.1985 under section 7(1)(a)(ii) of the Essential Commodities Act against the appellant. In conclusion of investigation, charge sheet was filed under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 12(1) of the
(2.) West Bengal Kerosene Control Order, 1968. Substance of accusation was read out and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 3 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that he was suffering from jaundice for last two months and the shop was run by one Bapi. In support of his defence he examined a local Counciler, DW1 and himself, DW 2. Learned trial Court by judgement and order dated convicted the appellant for commission of offence punishable under section 7(1)(a)(ii) of the EssentialCommodities Act and sentenced him to suffer simple imprisonment for four months and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for ten days more.
(3.) Mr. Bagchi, learned amicus curiae submitted that although it appears there was a shortfall of 110 liters of kerosene oil, prosecution witnesses deposed that there was a shortfall of 90 liters. He further submitted that the appellant was suffering from jaundice and as a result he could not run the shop himself and had assigned such duty to one Bapi. Hence, he had no mens rea in committing the offence. He prayed for acquittal of the appellant. Mr. Banerjee, learned Additional Public Prosecutor submitted that a shortfall to the tune of 110 liters of kerosene oil was detected upon comparing physical quantity of kerosene oil in the shop with the entries made in the stock register. He submitted that the version of remaining of kerosene oil business by one Bapi is highly unreliable and has not been established by way of evidence. He prayed for dismissal of the appeal. PW 1, Adhir K. Banerjee, is the de facto complainant and the leader of the raiding party. He was attached to Inspector of Police, D.E.B., Howrah. At about 12.30 p.m., he along with others went to kerosene oil-cum-grocery shop of the appellant. He served notice upon the appellant (Exhibit 1) to produce all books of account relating to the business of kerosene oil. The appellant produced sale register, stock register, log book, cash memos. On perusal of the stock register and sale register it was found that the sale register was not written upto date but the stock register was written upto date. On physical verification 440 liters of kerosene oil was found. There was a shortage of 90 liters. The appellant wasarrested and the stock register, licence, purchase cash memo, physical stock of 440 liters kerosene oil in the shop were seized. The appellant was granted bail as he was ill. Seizure list was prepared (Exhibit 4). PW 1 and the appellant signed the seizure list. He lodged complaint which was treated as first information report (Exhibit 5);