Rajarshi Bharadwaj, J. - (1.) This appeal arose out of an order dated 6th September, 1985 passed by the learned Judge, Special Court (Essential Commodities Act), Purulia in Trial No. 17 of 1985 convicting the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and sentencing him thereunder to suffer rigorous imprisonment for three months and to pay fine of Rs. 500/-, in default to suffer rigorous imprisonment for fifteen days. The seized stock of rice be confiscated to the State.
(2.) The prosecution case in brief is that on 31st August, 1984 at 13.05 hours, P.W.3 Sub-Inspector, Baldeb Mishra, D.E.O. Kashipur Zone inspected and checked the grocery shop of the accused Suresh Chandra Chowdhury of Adra Bazar accompanied by P.W.2, W/C Subhash Chandra Mahanty. At that time the accused was found selling both atap and boil rice to customers. On demand the accused could not show any licence for dealing in rice. P.W. 3 then seized 30 kgs. of atap rice and 75 kgs. of boil rice from the shop of the accused upon a seizure-list in presence of witnesses. Thereafter, he lodged First Information Report with Kashipur Police Station and a case, being Kashipur Police Station Case no. 18 dated 31st August, 1984 was initiated. Investigation was started and P.W. 3 examined witnesses. After completion of investigation, he submitted chargesheet against the accused person on 7th March, 1985 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 read with paragraph 3(1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967. The accused/appellant had been examined under Section 251 of the Code of Criminal Procedure and the substance of acquisition had been explained to him. The accused pleaded not guilty and
(3.) Claimed to be tried. Learned advocate for the appellant submitted that the appellant had a grocery shop and the raiding party found only hundred kgs of rice. The prosecution did not adduce any documentary evidence to show that the appellant was in the business of buying and selling rice. The learned Trial Judge ought to have held that search and seizure having not been conducted in substantial compliance of Section 100(4) of the Code of Criminal Procedure, the impugned prosecution had vitiated. He further submitted that the prosecution failed to prove that the appellant had contravened the provision of paragraph 3(1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967, wherein it has been stated that "Paragraph 3 Regulation of business in rice and paddy (1) No person shall act as a dealer- (a) except under and in accordance with a licence granted under this Order, if such person is- (i) a bulk consumer of the category which sells or supplies rice; (ii) a rice-miller, or (iii) a wholesaler, and (b) except under and in accordance with registration certificate granted under this Order, if such person is (i) a bulk consumer or any other category, or (ii) a retailer.";