S.P.Talukdar, J. - (1.) Petitioner, Bikash Chandra Biswas, by filing the instant application under section 397/401 read with section 482 of the Code of Criminal Procedure sought to assail the judgment and order passed by the learned Sessions Judge, Hooghly, on 3rd March, 2006 in Criminal Appeal No. 50 of 2005 thereby affirming the judgment and order of conviction and sentence dated 18th August, 2005 passed by the learned Additional Chief Judicial Magistrate, Serampore, in Criminal Case No. 226 of 2004.
(2.) Grievances of the petitioner may briefly be stated as follows : The petitioner is a businessman. Sheoraphully Regulated Market Committee, being opposite party No. 2 herein, issued a notice alleging that the petitioner did not furnish statement of return. The Special Officer of the said Market Committee lodged a complaint against the petitioner before the learned Court of Additional Chief Judicial Magistrate for alleged violation of section 34 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. In response to the summons issued by the Court, the petitioner duly appeared. He pleaded not guilty to the accusation while being examined under section 251 of Criminal Procedure Code. The case was then taken up for trial. Two witnesses were examined on behalf of the complainant/ prosecution. On 18.08.2005, learned Additional Chief Judicial Magistrate, Serampore, Hooghly passed an order convicting the petitioner under section 34(5) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. The petitioner was convicted and was sentenced to pay fine of Rs. 100/- or i.d. to suffer imprisonment for five days. The petitioner was further directed to submit the return of Rs. 2,000/- to the O.P. No. 2 within two months from the date of passing of the order. The said order was challenged by the petitioner in a way of preferring an appeal which was registered as Criminal Appeal No. 50/2005. Learned Sessions Judge by judgment and order dated 03.03.2006 dismissed the said appeal thereby confirming the judgment and order of conviction and sentence by the learned Additional Chief Judicial Magistrate, Serampore. Thereafter, the petitioner by filing such application sought for setting aside of the said orders.
(3.) Mr. Milon Mukherjee, appearing as learned Counsel for the petitioner, at the very outset submitted that of the various points taken before the learned Courts below the point regarding requirement of sanction is not pressed. This is in the context of amendment whereby the provision relating to requirement of sanction was deleted. Mr. Mukherjee then submitted that there had been no service of notice upon the present petitioner/accused person. In this context, Mr. Mukherjee invited attention of the Court to the evidence adduced before the learned Trial Court. He submitted that there is, no doubt, evidence in support of the claim that notices were duly sent, there is no clear material available on record so as to suggest that notice was, in fact, served upon the present petitioner/accused person. Mr. Mukherjee submitted that such service of notice being a sine qua non, the case deserves to fall on that ground alone.;