Dibakar Mondal & Anr. Vs the State

1. The impugned judgment and order dated 23.05.1986 passed by the learned Judge, Special Court, E.C. Act, Howrah, in connection with Special Court Case No. 120/84 is assailed in this appeal.

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2. By passing the impugned judgment this appellant was found guilty for commission of offence punishable under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 and was sentenced to suffer rigorous imprisonment for six months along with a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for one month.

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3. Being aggrieved by and dissatisfied with the said impugned judgment and order of conviction, the present appeal is preferred at the behest of the appellants.

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4. The substance of the prosecution case may be narrated in brief as follows:

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“On 01.09.1984 at about 11.30 a.m., PW2 Rasomoy Mitra, Inspector of Police, Enforcement Branch (W.B.), along with other police personnel, carried out a surprise raid in the shop of appellant no.1, Dibakar Mondal, who was a licensed dealer in rice and kerosene oil at Ghosal Chak under Uluberia Police Station. At the time of inspection, the proprietor, Dibakar Mondal, was not present, but his employee, appellant no.2 Sunil Mondal, was available in the shop. Upon demand, the appellant no.2 produced certain records including the kerosene oil stock

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register, sale register, token register, stock-cum-rate board for kerosene, and the rice stock register, which appeared to have been written up to 30.08.1984. Scrutiny of the kerosene stock register revealed that there should have been a balance of 299 litres of kerosene oil as on the said date, which was also shown as the opening balance on the rate board. However, physical measurement of the stock disclosed only one barrel containing approximately 100 litres of kerosene. The appellant no.2 was unable to produce any cash memos, sale particulars, or accounts to explain the disposal of the remaining 199 litres. The inspecting officer further detected 66 bags of rice weighing about 53 quintals, which was well in excess of the permissible stock limit. Appellant no.2 could not show any register, authority or licence to justify such storage, nor was there a stock-cum-rate board displayed in respect of the rice. Consequently, the kerosene, rice, and relevant registers and documents were seized under a properly prepared seizure list in the presence of witnesses, and custody (zimma) of the seized commodities was handed over to

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one Madan Mohan Mondal. Thereafter, appellant no.2 was taken to Uluberia Police Station, where PW2 lodged a written complaint, pursuant to which Uluberia P.S. Case No. 2 dated 01.09.1984 was registered against the appellants. After completion of investigation charge-sheet was submitted by the prosecuting agency against the appellants.”

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5. In this case, the prosecution has examined nine witnesses and the defence examined one witness. Documents were marked as exhibits on behalf of the prosecution and the defence.

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6. Mr. Sekhar Kumar Basu, learned Senior Advocate for the appellants, argued that the prosecution evidence suffers from material contradictions and significant omissions, which go to the root of the case and render the conviction unsustainable in the eyes of law. According to Mr. Basu, the prosecution has failed to establish the essential ingredients required to bring home an offence under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955. He contended that the evidence on record does not demonstrate that the appellant no.1 had knowingly, wilfully, or intentionally committed any violation of the Control Order. On the contrary, it stands proved through multiple prosecution witnesses that appellant no.1 was seriously ill at the relevant time and was unable to personally supervise or attend to the

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daily business of his shop. During this period, the sale and distribution of kerosene oil were being managed entirely by the appellant no.2. Therefore, even assuming that any irregularity did occur, it was a result of circumstances beyond the control of appellant no.1 and cannot be treated as a deliberate breach on his part.

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7. Mr. Basu also emphasized that the prosecution has not produced any evidence to show that rice was being sold from the shop of appellant no.1. No witness has deposed witnessing any transaction of rice, nor has the prosecution been able to seize any loose or individual bag of rice which could indicate that the commodity was intended for retail sale. In the absence of such evidence, the allegation of illegal sale or possession in excess of permissible limits remains speculative and unsubstantiated.

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8. It was further argued that the cash memo book maintained in the ordinary course of business was produced before the Investigating Officer and later filed in Court as an exhibit. From the entries recorded therein, it becomes evident that the quantity shown as shortage was, in fact, sold on 31st August, 1984 and 1st September, 1984 in the regular course of business. Thus, the documentary evidence maintained contemporaneously supports the defence case and contradicts the prosecution’s allegation of intentional suppression or shortage.

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9. Learned counsel also drew the attention of this Court to a glaring contradiction between the testimony of PW2, one of the members of the raiding team, and PW4, Banamali Chatterjee, who was a seizure witness. PW2 deposed that the stock of kerosene oil in the barrel was measured with a can. However, PW4, in his cross-examination, categorically stated that no such measurement was carried out. According to him, the raiding party merely looked at the barrel and estimated the quantity to be around 100 litres. Such inconsistency on a fundamental aspect of the case casts serious doubt on the reliability of the prosecution version and demonstrates that the alleged shortage was not scientifically or properly determined. When the very basis of the prosecution case is uncertain, the conviction cannot be allowed to stand.

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10. The learned Advocate has further drawn the Court’s attention to the testimony of PW4, Banamali Chatterjee, who stated in unequivocal terms that 67 bags of rice were seized by the police from a room adjacent to the shop of appellant no.1 and not from the shop itself. Based on this evidence, it is argued that an adjoining storage room or godown cannot, in the absence of proof, be automatically treated as a “shop” within the meaning of the licensing provisions. A shop is a place where business transactions are carried out and customers are attended to. A godown or adjacent room used merely for storage does

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not fall within that definition. Thus, the seizure from such a location does not, by itself, establish that the rice was meant for unauthorized sale.

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11. It is further pointed out that PW4 also stated that when the raid was conducted between 11:30 a.m. and 12:00 noon, no transaction relating to rice or kerosene oil was taking place at the shop of the appellant. This admission strengthens the defence plea that no incriminating activity was in progress at the time of the search and that the prosecution has failed to prove any active dealing in violation of the Control Order.

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12. The learned Advocate has also relied on the statements of PW4 and PW5 to demonstrate that the son of appellant no.1 produced the cash memo book before the raiding officer soon after the seizure list was prepared, and requested that the same be inspected. Though the officer did inspect the cash memo, it was not seized at that time, apparently because the seizure list had already been finalized. However, the same cash memo book was later brought on record by the defence before the Trial Court and was marked as Exhibit–A. The entries in this document are said to demonstrate that the alleged shortage was explained by sales made in the ordinary course of business.

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13. In addition, the defence examined one Ramesh Chatterjee as DW1, whose evidence provides an important explanation for keeping the rice.

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DW1 deposed that on 28.05.1984, a raid was conducted at the shop of one Sudam Parui and 100 bags of rice were seized from him. Out of that quantity, 80 quintals were handed over to appellant no.1 as zimma on the same date. A police case, being Uluberia P.S. Case No. 16 of 1984 dated 28.05.1984, was registered against Sudam Parui in connection with that seizure. According to DW1, the rice seized in that case was kept in the adjoining room of appellant no.1’s premises pursuant to such lawful entrustment.

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14. In view of these facts, learned counsel Mr. Basu contends that keeping of rice in the adjoining room was not a result of any illegal stocking or hoarding by appellant no.1 but was a consequence of the official custody entrusted to him by the police. Accordingly, the allegation of contravention of the Rice and Paddy (Licensing and Control) Order, 1967, is not supported by the evidence and is therefore without foundation.

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15. It is contended by the learned Advocate for the appellant that the Trial Court failed to properly appreciate the documentary evidence on record. Had the Court examined the cash memo book with due care, it would have found that sales of kerosene oil were duly made on 30.08.1984, 31.08.1984 and 01.09.1984, reflecting that transactions were being regularly recorded. Therefore, the conclusion that there was any

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irregularity or deficiency in the stock and sale position of kerosene oil is not sustainable.

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16. Furthermore, there exist material inconsistencies in the testimony of prosecution witnesses regarding the alleged seizure of the kerosene barrel. Such contradictions cast serious doubt on the reliability of the prosecution evidence. In view of the overall facts, the surrounding circumstances and the evidentiary materials placed on record, it is argued that the learned Trial Court ought to have extended the benefit of doubt to the appellant, instead of holding him guilty.

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17. Mrs. Faria Hossain, learned Advocate for the State, has submitted that the record does not contain any material that would justify interference with the findings of the learned Trial Court or the impugned judgment of conviction. According to her, all the prosecution witnesses have consistently supported the prosecution version, and there is no reason to discard or doubt their testimonies.

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18. Learned Advocate points out that the evidence of PW1 and PW2 clearly establishes that during inspection they recovered 53.60 quintals of rice stored for sale in the shop of appellant no.1, which was substantially higher than the legally permitted limit. She further submits that although the stock register reflected a balance of 299 litres of kerosene oil, on physical verification only 100 litres were found, leaving an unexplained shortage of 199 litres. From the testimony of PW4 and

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PW5, the witnesses to the seizure, it is evident that the kerosene stored in the barrel was examined and the quantity was assessed to be 100 litres at the time of inspection.

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19. It is further argued that neither appellant no.1 nor appellant no.2, who was actively managing the shop as an employee and representative of appellant no.1, could produce any account or record explaining the disposal of the missing 199 litres of kerosene. The plea that appellant no.1 was ill at the relevant time does not, according to the State, absolve him of criminal responsibility under the relevant statutory provisions, particularly when appellant no.2 was directly handling the business operations. Therefore, the appellants cannot evade liability for the violation of statutory norms regarding maintenance of permissible stock limits.

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20. It is also submitted that the seizure was carried out strictly in accordance with law, and the articles seized were undoubtedly recovered from the shop of appellant no.1. Since the appellants failed to produce any lawful authorization or supporting documentation to justify possession of rice and kerosene beyond the permitted limits, they clearly violated the provisions of the relevant Act and Control Order.

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21. Thus, the learned Advocate for the State contends that the Trial Court rightly convicted the appellants, and there is no ground for interference. Accordingly, the appeal is liable to be dismissed.

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22. I have carefully examined the submissions put forth on behalf of both sides and have meticulously scrutinized the entire record.

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23. PW1, Dilip Kumar Bhattacharya, Inspector of Police, E.B.W.B.B., deposed that during the inspection of the appellant No. 1’s shop, the raiding team detected 53.60 quintals of rice stored for sale, which exceeded the permissible limit. He further stated that although the stock register reflected a balance of 299 litres of kerosene oil, the team, upon physical measurement, found only 100 litres, indicating a deficit of 199 litres.

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24. PW2, Rasomoy Mitra, in his cross-examination, corroborated this position. He testified that the stock register recorded 299 litres of kerosene oil as on 30.08.1984, and the same quantity was written in the rate board as the opening balance. He added that the kerosene was measured manually using cans, and only 100 litres were found in the barrel at the time of inspection.

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25. PW3, A.N. Chatterjee, another member of the raiding team, also confirmed that the kerosene kept in the barrel was measured by using cans.

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26. The collective testimonies of PW1, PW2, and PW3 establish that during the inspection conducted on 01.09.1984, the stock-cum-rate board at the appellant’s shop showed a balance of 299 litres of kerosene oil as on 30.08.1984. The sale register produced by appellant No. 2, who was managing the shop as an employee of appellant No. 1, recorded sales up to 29.08.1984. Despite these entries, the raiding party found only 100 litres of kerosene oil in actual stock on 01.09.1984, thereby revealing a substantial shortage when compared with the recorded balance. It clearly appears from the evidence that the prosecution version regarding the alleged irregularity in stock maintenance does not establish any deliberate or dishonest conduct on the part of appellant no.1. PW1 has categorically stated that on the relevant date the appellant no.1 was not present in the shop. According to him, appellant no.2 alone was managing the shop and conducting sales of grocery articles at that time. This evidence is important because it shows that appellant no.1 had no direct participation in the day-to-day business when the inspection was carried out.

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27. PW4 has also supported this version. In his deposition, he stated that appellant no.2 informed the Darogababu that appellant no.1 had been bedridden for a considerable period and was lying seriously ill at his residence. Thus, the management and conduct of the grocery and

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kerosene business was entirely in the hands of appellant no.2, who acted in the absence of the proprietor.

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28. Similarly, PW5 has stated in the same terms as PW1 and PW4. He testified that Sunil Mondal informed the police that appellant no.1 was confined to his house due to illness and had entrusted the responsibility of running both the grocery shop and kerosene business to appellant no.2. In such circumstances, any discrepancy found in the accounts or variation detected between the physical stock and the book balance cannot be directly attributed to appellant no.1. Since the functioning of the shop was being handled entirely by another person, any mistake, negligence, or omission occurring during this period cannot be visited upon the owner, particularly in the absence of evidence of personal involvement or supervision.

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29. Further, the prosecution evidence itself suffers from material inconsistencies. PW2, the raiding officer stated in his deposition that the kerosene oil was measured with a can, and on measurement only 100 litres were found in the barrel. PW3 also corroborated PW2 by stating that the kerosene was measured by can. However, PW4, a seizure witness, gave a completely different version in crossexamination. He categorically admitted that no measurement of the kerosene was taken by using any can. He said that merely by looking at the barrel, he guessed that it contained about 100 litres of kerosene.

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He further added that the measuring can itself was not seized by the police. This contradiction is significant, because if the prosecution witnesses themselves are not consistent on whether the kerosene was properly measured, the reliability of the alleged shortage becomes substantially doubtful.

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30. Therefore, the evidence of PW1, PW2, PW3, PW4, and PW5, when read together, does not show that the alleged shortage of kerosene oil was the result of any deliberate suppression, concealment, or fraudulent act on the part of appellant no.1. Rather, it indicates that there was merely a discrepancy between the book balance and the physical stock, which could reasonably arise due to delayed entries in the register, clerical mistakes, or lack of proper supervision by the person temporarily managing the business. The prosecution has failed to establish any fraudulent intention or conscious violation of licence conditions. In the absence of mensrea or proof of deliberate act, the allegation of wilful contravention of the licensing provisions against appellant no.1 cannot be sustained.

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31. It is further evident from the testimony of PW9, Nirad Baran Mukherjee, who was not only a member of the raiding party but also the Investigating Officer of the case, that the prosecution case suffers from significant internal contradictions. During his cross-examination, PW9 clearly admitted that he was aware that appellant no.1, Dibakar

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Mondal, was ill at the relevant time. This admission directly supports the consistent evidence of earlier prosecution witnesses that appellant no.1 was not present at the shop and was not personally supervising the business when the alleged irregularity was detected. Thus, even from the I.O.’s own testimony, it appears that the day-to-day operation of the kerosene and grocery business was being carried out by the appellant no.2 in the absence of appellant no.1, thereby weakening any allegation of direct culpability against the latter.

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32. More importantly, PW9 stated that the kerosene oil was measured with a can and, upon such measurement, it was found to contain 100 litres. However, this statement is directly contradicted by PW4, an independent seizure witness, who categorically stated in crossexamination that no such measurement was ever taken by using a measuring can. PW4 went further to state that the quantity of oil was merely guessed based on visual assessment. This inconsistency strikes at the root of the prosecution’s allegation regarding shortage of stock. If the quantity of kerosene was not scientifically or properly measured, the alleged shortage becomes speculative and unreliable.

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33. PW9 also admitted that he did not mention in the charge-sheet the fact that the kerosene was measured with a can. The failure to record such a material fact in the charge-sheet raises doubts about whether proper procedure was followed at all. To compound the inconsistencies already

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apparent in the prosecution’s case, PW9 conceded during his testimony that no other witness had stated before him in details similar to those attributed to PW2, particularly the reference to a 200-litre barrel. This admission brings to the forefront the presence of multiple, mutually contradictory versions concerning the alleged measurement of the kerosene oil. According to PW2, the kerosene oil was measured by using cans, and upon such measurement, only 100 litres were found in the barrel. PW9 also claimed that the barrel contained 100 litres measured by can, thereby purporting to support PW2. However, PW4 gave an entirely different account, testifying that no actual measurement was carried out at all and that the quantity was merely estimated or guessed without any methodical verification. PW1, on the other hand, asserted that while the stock register reflected a balance of 299 litres of kerosene oil, the physical verification yielded only 100 litres. Yet this version is also inconsistent with PW5, a seizure witness, who categorically stated in his cross-examination that the kerosene stored in the barrel was never measured by any can.

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34. These glaring contradictions, whether the kerosene was measured by can, whether it was only guessed, whether a measurement took place at all, and the absence of corroboration regarding the barrel capacity strike at the very root of the prosecution's allegation of shortage. When different witnesses from the same raiding team provide divergent

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versions on such a crucial aspect, the reliability of the prosecution’s case becomes severely compromised. In the absence of a clear, consistent, and dependable account of how the quantity of kerosene was verified, the alleged shortage cannot be accepted as proven beyond reasonable doubt.

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35. Furthermore, PW9 acknowledged that the measuring can, which was allegedly used to assess the stock of kerosene oil, was never seized by him during the investigation. This omission is not merely a procedural lapse but strikes at the evidentiary foundation of the case. If the can itself was not seized or produced, the prosecution has failed to prove that proper measurement was carried out using standard equipment. Without seizure of the measuring device, the prosecution’s narrative becomes questionable and unsupported by tangible material evidence. Therefore, the testimony of PW9, instead of strengthening the prosecution case, exposes serious procedural irregularities, contradictory testimonies, and absence of proper investigation. These factors collectively weaken the prosecution’s version and lend further support to the defence contention that any variation in stock could not be treated as a deliberate or fraudulent act on the part of appellant no.1, especially in his absence due to prolonged illness.

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36. Another significant aspect emerges from the testimony of PW4, Banamali Chatterjee, who was one of the witnesses to the alleged

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seizure. In his evidence, PW4 stated that the police also seized 67 bags of rice from a room adjacent to the shop room of appellant no.1. The evidence of PW4 is of considerable importance because it establishes that the seized rice was not kept in the shop itself but in a separate room or godown located next to the shop premises. Such an adjoining storage space, without any evidence of commercial counters or public access, cannot automatically be treated as part of the “shop” within the meaning of a retail business open for transaction with customers. A godown or storage room is generally meant only for stocking commodities and not for day-to-day business transactions. Therefore, the mere presence of rice in the adjoining room does not by itself indicate that any unlawful sale, hoarding, or irregularity was being conducted by the appellant at the time of inspection.

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37. Further, PW4 also stated that when the raiding party reached the shop between 11:30 A.M. and 12:00 noon, no transaction or business activity relating to the sale of rice or kerosene oil was taking place in the shop of appellant no.1. This statement is of material relevance because it demonstrates that at the time of raid, no sale, distribution, or commercial dealing with the public was in progress. The absence of any ongoing business activity rules out any suggestion that the appellants were conducting unauthorized sales, engaging in blackmarketing, or otherwise misusing their licensed stock during the

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course of inspection. The testimony of PW4, therefore, indicates (1) that the rice was stored in an adjoining godown and not in the retail shop itself, (2) no sale or commercial dealing was going on at the time of the raid and there is no proof that the rice kept in the adjacent room was being used for any illicit purpose.

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38. When these facts are considered together, they considerably weaken the prosecution’s inference that the seized rice was part of some irregular or unlawful business activity. The prosecution has also not produced any evidence to show that the said rice was hidden, kept in unauthorized premises, or intended for illegal sale. In the totality of circumstances, the evidence of PW4 thus supports the defence case that the seizure does not establish any deliberate contravention of licensing conditions and that the prosecution has failed to prove any improper dealing with controlled commodities by appellant no.1 at the relevant time.

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39. Another crucial aspect of the defence case emerges from the testimony of DW1, Ramesh Chatterjee, who was examined as a defence witness. DW1 has categorically stated that on 28.05.1984, a raid was carried out at the shop of one Sudam Parui, during which the police seized 100 bags of rice from his possession. Out of the seized stock, 80 quintals of rice were handed over to appellant no.1 as zimma (custody) on the same date. DW1 further clarified that a specific police case was

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registered against Sudam Parui in connection with this seizure, and the appellant no.1 was not an accused in that case. He was only entrusted with the responsibility of storing the seized rice until further orders of the appropriate authorities.

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40. DW1 also stated that the rice seized from Sudam Parui was kept in the adjoining room or godown of appellant no.1’s business premises. This explanation assumes great significance because it directly rebuts the prosecution’s allegation that appellant no.1 was unlawfully keeping rice in excess of the permissible storage limit in violation of the Rice and Paddy (Licensing and Control) Order, 1967. If the rice was not part of appellant no.1’s own stock but was only kept in his godown under official order and supervision as zimma , then its presence in the adjoining room cannot be treated as an offence or an act of hoarding. The defence evidence of DW1, therefore, provides a lawful and reasonable explanation for why such a large quantity of rice was found stored on the premises of appellant no.1.

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41. In such circumstances, the allegation that appellant no.1 was storing rice beyond the permissible quantity under the 1967 Order loses its force. A person who is in possession of public property under police authorisation cannot be criminally liable for mere possession, especially when the property is traceable to a pending criminal case against another individual. Thus, the testimony of DW1 provides a

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plausible and well-supported explanation, showing that the prosecution’s allegation of unauthorized storage is unfounded. It becomes clear that the presence of rice in the adjoining godown was not the result of illegal business activity but was a consequence of lawful entrustment by the authorities themselves. This fact substantially weakens, if not completely demolishes, the prosecution’s case that appellant no.1 violated the license conditions or acted in contravention of the applicable control order.

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42. It becomes abundantly clear from the evidence of the prosecution witnesses that at the relevant date and time, appellant no.1, though the owner of the shop, was not present at the business premises. Multiple witnesses have consistently stated that appellant no.1 was suffering from illness and was confined to bed for several days prior to the inspection. In his absence, the entire management and day-to-day operations of the grocery and kerosene business were being carried out by appellant no.2, who was an employee/staff responsible for running the shop. This factual scenario is of fundamental importance because it demonstrates that the appellant no.1 was not in a position to supervise or monitor business transactions at the time when the alleged irregularity was detected.

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43. In such circumstances, the liability for clerical, accounting, or stock lapses cannot be automatically or mechanically fastened upon the

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owner unless the prosecution establishes that such person had knowledge of the alleged irregularity or had actively participated in, consented to, or connived in the acts complained of. Criminal liability, especially under regulatory and control statutes, must be based on proof of conscious violation or wilful neglect. A person should not be penalised for an omission that occurred during a period of physical incapacity, when the responsibility for business management was being carried out in his absence and, as the evidence shows, in good faith by his staff.

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44. The statement of appellant no.1 under Section 313 Cr.P.C. also gives a natural and reasonable explanation regarding the alleged shortage of 199 litres of kerosene found at the time of inspection. He stated that although he was unwell for quite some time, he used to visit the shop whenever his health permitted. However, from 30.08.1984 he could not attend the shop for two to three days due to deteriorating health, and during this period, appellant no.2 and other staff members were issuing sale memos and conducting business. As explained in earlier paragraphs, this explanation is supported not only by the defence evidence but also by the admissions of prosecution witnesses who themselves acknowledged that appellant no.1 was bedridden and that the shop was effectively being run by appellant no.2 at the time of raid.

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45. Therefore, in such a factual matrix, any variation found between book stock and physical stock on the date of inspection cannot be directly attributed to the personal fault of appellant no.1. Thus, the overall evidence strongly supports the conclusion that the alleged shortage, if any, was at best a result of clerical error, delayed entries, staff negligence, or administrative lapse and not the product of dishonest intention or purposeful violation by the appellant no.1. The prosecution having failed to prove conscious and culpable conduct, criminal liability cannot be imposed merely on the basis of ownership, particularly when the owner was incapacitated and had no direct involvement at the time of the alleged irregularity.

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46. In view of the facts and circumstances and discussion made above I am of the view that there are illegalities and material irregularities in the impugned judgment and order of conviction passed by the learned Trial Court and as such, the same is not sustainable under the provisions of law.

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47. Accordingly, the instant appeal be and the same is allowed .

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48. The impugned judgment and order of conviction dated 23.05.1986 passed by the learned Judge, Special Court, E.C. Howrah in connection with Special Case No. 120 of 1984 is hereby set aside.

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49. The appellant is on bail. He is to be discharged from his respective bail bonds and be set at liberty, if he is not wanted in connection with other case.

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50. In accordance with the mandate of Section 437A of the Code of Criminal Procedure (Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), it is incumbent upon the appellant to furnish bail bonds, accompanied by suitable sureties. Such bonds, once executed, shall remain in full force and effect for a period of six months, ensuring the presence of the appellant as required by law and securing the due administration of justice.

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51. Let a copy of this judgment along with the Trial Court record be sent down to the Trial Court immediately.

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52. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.

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(Prasenjit Biswas, J.)

Dibakar Mondal & Anr. v. the State

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Dibakar Mondal & Anr. v. the State

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