Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2086 OF 2008
[Arising out of Special Leave Petition (Criminal) No. 4697 of 2008]
HARENDRA NATH CHAKRABORTY … APPELLANT
Versus
STATE OF WEST BENGAL … RESPONDENT
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. This appeal is directed against a judgment and order dated 29.2.2008
passed by a learned Single Judge of the High Court of Calcutta allowing the
appeal in part preferred by the appellant herein from a judgment and order
of conviction and sentence dated 16.3.1993 passed by the learned Judge,
Special Court (E.C. Act), Hooghly, West Bengal in Special Court Case No.
12 of 1991 convicting him under Section 7(1)(a)(ii) of the Essential
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Commodities Act,1955 (hereinafter called and referred to, for the sake of
brevity, as “the Act”) reducing the sentence imposed on him from rigorous
imprisonment for six months and to pay a fine of Rs. 2,000/- in default to
suffer R.I. for another one month to suffer R.I. for three months and to pay
fine of Rs.2000/- in default to suffer R.I. for 15 days.
3. Appellant was a dealer in kerosene oil having been granted licence in
terms of the provisions of the West Bengal Kerosene Control Order, 1968
(for short, “the 1968 Order”) made by the State of West Bengal in exercise
of its powers conferred by sub-section (1) of Section 3 of the Act read with
clauses (d), (e), (h) and (j) of sub-section (2) of that Section and Section 7
th
(1) thereof as also the Order No. 26(11)-Com.Genl/66, dated 18 June,
1966.
4. The State of West Bengal apart from the aforementioned 1968 Order
made West Bengal Declaration of Stocks and Prices of Essential
Commodities Order, 1977 (for short, “the 1977 Order”)
5. Indisputably, kerosene is an essential commodity within the meaning
of sub-section (1) of Section 2A of the Act. For dealing in the said
commodity, a licence is required to be taken under the 1968 Order.
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Appellant was holder of a licence bearing No. DP/64 in terms whereof he
was entitled to deal in the said commodity.
6. Section 7(1)(a)(ii) provides for imposition of a penalty on a person
who contravenes any order made under Section 3 with imprisonment for a
term which shall not be less than three months but which may extend to
seven years and shall also be liable to fine. The proviso appended thereto
postulates that the court may, for any adequate and special reasons to be
recorded in the judgment, impose a sentence of imprisonment for a term of
less than three months.
7. Manik Lal Das, a Sub-Inspector of Police conducted a raid in the
shop of the appellant on 28.1.1991. Several irregularities were found. A
first information report was lodged inter alia alleging:
“I started physical verification of stock cum rate
board stock register, cash memo book in respect of
dealing of K.Oil and found opening stock of K.Oil
dated 27.01.1991 as 1500 liters. According to
stock register he received 200 liters of K. Oil on
the same date i.e. total 1700 liters of K. Oil on
27.01.1991. Out of 1700 liters he sold 1198 liter
as per cash memo dated 27.01.1991. As such the
opening balance should have been 502 liters on
28.01.1991. But the Harendranath Chakraborty
did not put opening balance on 28.01.1991 though
he received 1000 liters of K. Oil vide cash memo
No. 767, 768 dt. 28.1.1991 from distributor.
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During physical verification in presence of
witnesses (i) Sri Ashoke Kr. Mallick S/o Shri
Hardhan Mallick of Alipore, P.S. Dadpur, Dist –
Hooghly (ii) Sk. Kasem S/o Late Sk. Rabin of
Alipore village, P.S. Dadpore. The total stock of
Kerosene Oil was found as 450 excepting sale of
K. Oil 257 liters dated 28.01.1991. According to
stock register and cash memo book the total stock
of K.Oil should have been 1502 liters. As such
there is shortage of K. Oil 795 liters.”
8. He did not, however, examine himself. He seized the following
articles under a seizure list in the presence of witness as well as the
appellant:
“1. One K. Oil licence No. DP/64 in the name of Shri
Harendra Nath Chakraborty S/o Dinabandhu
Chakraborty of village Alipore, P.S. Dadpore,
Dist. Hooghly, valid upto 31.12.1991.
2. One daily stock register in the name of Sri
Harendra Nath Chakraborty for K. Oil duly
certified by the Inspector Food & Supply Officer
containing page No.1 to 46 in which page No. 1 to
44 have been return and showing opening balance
in the said stock register dated 27.01.1991 1500
liters and showing received 200 liters on
27.01.1991 and 1000 (one thousand) liters on
28.01.1991.
3. One tin made stock board of K. Oil in the name of
Sri Harendra Nath Chakraborty, nothing was
written.
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4. One cash memo book in the name of Sri Harendra
Nath Chakraborty for K.Oil commencing from
memo No.1 to 1000 in which memo 1 to 477 have
been written.
5. Two barrels of Kerosene Oil 200 liter in each
barrel.
6. 50 (fifty) liters of Kerosene oil found in an open
small drum.
7. One polythene pipe measuring 7’ feet.
8. One tin made measuring pot for 1 liter.
9. One tin made measuring pot for ½ liter.
10. One tin made funnel.
9. Two independent witnesses, namely, (i) Ashok Kumar Mullick
(P.W.1) and (ii) Sk. Kashem (P.W.2) who were examined before the Court
and proved the seizure of articles during the said raid, were declared hostile.
Ravindra Nath Mondal (P.W.6), Investigating Officer, however, examined
himself.
All the documents as also the material objects which were seized
were duly approved.
10. The learned Trial Judge formulated the following points for his
consideration:
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“1. Whether the accused can be indicted for
non-display of stock and price list as
required under para 3(2) of W.B.
Declaration of Stocks and Prices of E.C.
Order, 1977.
2. Whether the accused has failed to comply
with the terms and conditions of the licence
for dealing in kerosene oil.”
On point No. 1, it was held that the stock of kerosene was not
displayed on the display board. Thus, the condition No. 6 of the licence
issued to him under the 1968 Order was found to have been violated. The
learned Judge held:
“Onus, thus, shifts upon the accused to discharge
the burden lying upon him regarding display of
stock and price board as required under para 3(2)
of the Order. He failed to do so. Inference, as
such, can rightly be drawn against him under
Section 114(g) of the Evidence Act and to
conclude that the material Ext. III is nothing but
the stock and rate board intended to be displayed
by the accused as required under para 3(2) of the
Order. On scrutiny of the said board, as the
indication of the opening being found conspicuous
by its absence stock of kerosene oil as well as its
wholesale or retail price on the relevant date, I am
of the view that the allegation against the accused
that he has violated the provision of para 3(2) of
the Order is well founded.”
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So far as point No. 2 is concerned, the learned trial Judge opined:
“It is worthwhile to see, therefore, how far the
prosecution has succeeded to bring home the said
charge against the accused beyond reasonable
doubt. Material Ext. II is the so-called stock
register produced and identified by I.O. (PW.6)
before the court in the absence of non-examination
of the defacto complaint. On a look at the said
document it appears that the opening stock of
kerosene oil in col. No. 2 remained blank nor
anything was mentioned in column No.6 on
27.01.1991 as to the actual sale of kerosene oil nor
column No. 7 indicated shortage of said kerosene
oil nor anything was pointed out in column No. 8
as to the balance of kerosene oil, which should be
drawn as opening balance on 28.01.1991.
Inference, as such, can be drawn against the
accused for non-maintenance of the stock register
as required by a licensee. It is not unlikely to
mention in this connection that PWs 1 and 2 said
to be the witnesses to seizure though declared
hostile vouched for the stock of kerosene oil as
502 ltrs. of kerosene oil at the shop of the accused
on the relevant date and thereby lends support to
the case of the prosecution regarding opening
balance of kerosene oil after taking into account
the sale transaction on 27.01.1991 as 502 ltrs.
According to the prosecution, accused received
1000 ltrs. of kerosene oil from his distributor on
28.01.1991. This fact is borne out from the entry
made in column No. 4 of Daily Stock Register
(Mat. Ext. II) and thereby belies the statement of
P.W. 5 (who was rightly declared as hostile) that
only 400 ltrs. of kerosene oil was received during
business hours. Consequently, taking into account
this 1000 ltrs. of kerosene oil together with 502
ltrs. of kerosene oil as opening balance on
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28.01.1991 at the shop of the accused, the figure
comes to 1502 ltrs. True of course, there is no
ocular testimony from the side of the prosecution
barring production of cash memo regarding sale of
any kerosene oil by the accused on 28.01.1991
P.W. 6 (I.O.) having admitted that he did not
verify the cash memo book for the purpose of
ascertaining the sale transaction on 27.01.1991
and 28.01.1991, the court is left with no cogent
material to subscribe to the view of the
prosecution regarding sale of kerosene oil of 257
ltrs. of kerosene oil by the accused on 28.01.1991
and in that view of the matter, it is difficult to
conceive that the physical stock of kerosene oil at
the shop of the accused having taken into the
aforesaid sale transaction would be 795 ltrs. As
opposed 450 ltrs. found on measurement. Or,
more precisely, in the absence of any legal
unimpeachable evidence as to the expected
physical stock of kerosene oil at the shop of the
accused on 28.01.1991 having taken into account
the sale transaction it is difficult to see eye to eye
with the version of the prosecution that the
physical stock of kerosene oil was not in
consonance with the expected stock. But, the fact
remains as has been already pointed out that the
accused did not maintain the stock register
showing the opening balance and the consequence
sale from the said quantity to the consumers in
breach of the mandatory provision of para 12 of
the order and in that view of the matter, he comes
under the mischief of the provision of the said
para.”
It was, however, held that having regard to the fact that the
Investigating Officer did not verify the cash memos, the charges brought
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against the appellant that the actual quantity of kerosene was found to be
short by 795 liters was not proved. On the aforementioned findings, a
judgment of conviction and sentence as indicated hereinbefore was
recorded.
11. An appeal preferred by the appellant before the High Court was
admitted only on the question of sentence. Presumably, with a view to
satisfy itself as to whether a case has been made out for invoking the
proviso appended to Section 7(1)(a)(ii) of the Act, the High Court also went
into the matter and ultimately reduced the quantum of sentence in the
manner as noticed hereinbefore.
12. Mr. Rauf Rahim, learned counsel appearing on behalf of appellant in
support of this appeal would raise the following contentions:
i. As P.Ws. 1 and 2 who were examined as independent
witnesses in their depositions categorically stated that
the stock of the kerosene oil was written on the display
board, the learned trial judge as also the High Court
committed a serious error of law in opining that
appellant had contravened condition No. 6 of the licence.
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ii. That the prosecution case that the stock register did not
contain any entry in respect of 502 liters of kerosene oil
having not been put to appellant while he was examined
under Section 313 of the Code of Criminal Procedure,
the judgment of conviction recorded for non-
maintenance of the stock register must be held to be
erroneous.
iii. The complainant as also S.I. N.K. Sikder who
accompanied him having not been examined, the
prosecution cannot be said to have proved its case.
13. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the
respondent, on the other hand, would support the impugned judgment.
14. The prosecution case as against appellant discloses three distinct
offences. The opening balance of kerosene oil as on 28.1.1991 was not
mentioned in the stock register. Admittedly, appellant received 1000 liters
of kerosene oil from the distributor on the same day. However, on physical
verification the total stock of kerosene oil was found as 450 liters only. On
that date, kerosene oil to the extent of 257 liters had been sold. Thus,
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although the total stock of kerosene oil should have been 1502 liters but as
only 450 liters were found, there is a shortage of 795 liters of kerosene oil.
15. The learned Special Judge, as noticed hereinbefore, although found
that having regard to the fact that Investigating Officer did not verify the
cash memo book for the purpose of ascertaining the sale transaction on
27.1.1991 and 28.1.1991, the prosecution case that the physical stock of
kerosene did not tally with the expected stock has not been proved.
16. As no appeal was preferred by the State against the said finding, the
same must be held to have attained finality. The fact, however, remains and
as noticed by the learned Special Judge as also by the High Court the entire
prosecution case was based on documentary evidence as also the material
objects, which had been seized. The seizure witnesses, namely, P.Ws. 1 and
2 might have been declared hostile, but the seizure memos had duly been
proved. The seized documents had also been proved. Appellant having
been maintaining the said documents, when discrepancies occurring therein
were pointed out to him it was for him to explain the same.
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17. Appellant did not adduce any evidence in defence. It has not been
denied or disputed that the seized kerosene oil had been put in the custody
of Tapan Chakraborty, son of the appellant. He was examined as a
prosecution witness as P.W. 5. Appellant also accepted the said fact. Thus,
the amount of kerosene which had been seized and kept in the custody of
his son has not been denied or disputed. The fact that only 450 liters of
kerosene oil was found in the shop has, thus, been proved.
18. Submission of Mr. Rauf Rahim that the learned Special Judge should
have specifically put the prosecution case to appellant under Section 313 of
the Code of Criminal Procedure that the stock register did not contain any
entry of 502 liters, in our opinion, does not appear to be correct. The
prosecution case based on the basic primary material which the prosecution
had brought on record, namely, raid in the shop, the stock of kerosene oil
found, the seizure of the display board, stock register, cash memo, etc., had
been put to him. Apart from making a bald denial that measurement had not
been taken or that no measurement chart had been prepared he had not
explained the discrepancies in the stock or non-display thereof.
We may notice the question Nos. 6, 7 and 8 in this behalf:
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“Q-6: It appears further from the statement made
by the PW-4 that having examined the oil in
stock the register and the stock register it
was found that there was a discrepancy of
794 (sic) liters of kerosene oil and for that
the officer-in-charge seized the kerosene oil
found in the shop along with the registers
stock and rate bound etc., and prepared a
seizure list (Ext. 1/4). What do you say in
this regard?
Ans.: This is not true, I am innocent.
Q-7: It appears further from the statement made
by the PW Nos. 3 and 4 that the seized
kerosene oil was put in the custody of
Tapan Chakraborty, your son (PW-5) by
way of a Zimmanama. What do you say in
this regard?
Ans. Yes, kept.
Q-8. Having taken the charge to investigate this
case the PW-6 perused(?) the said registers
and identified the said cash memo book,
stock register and stock board respectively
as the Mat. Ext. Nos. I, II and III in the
Court. What do you say in this regard?
Ans: Everything is in order, Sir. The stock board
has not been brought.”
As all the material evidences brought on record by the prosecution
had been brought to his notice. It has not been shown before us as to how
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he was prejudiced, particularly when his son was examined as a witness. He
could have given his side of the story which, according to him, could have
proved his defence, on the basis of material brought on record.
Submission of Mr. Rauf Rahim that the judgment of conviction and
sentence stands vitiated by reason of non-compliance of the provisions of
Section 313 of the Code of Criminal Procedure, thus, cannot be accepted.
In State of Punjab vs. Swaran Singh [(2005) 6 SCC 101], this Court
was dealing with a matter under NDPS Act. Therein, only general questions
were put to the accused. Elaborating the purpose for which an accused is
required to be examined under Section 313 of the Code, it was stated:
“Apart from all these, as part of fair trial the
accused is given opportunity to give his
explanation regarding the evidence adduced by the
prosecution. However, it is not necessary that the
entire prosecution evidence need be put to him and
answers elicited from the accused. If there were
circumstances in the evidence which are adverse
to the accused and his explanation would help the
court in evaluating the evidence properly, the
court should bring the same to the notice of the
accused to enable him to give any explanation or
answers for such adverse circumstance in the
evidence. Generally, composite questions shall
not be asked to the accused bundling so many
facts together. Questions must be such that any
reasonable person in the position of the accused
may be in a position to give rational explanation to
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the questions as had been asked. There shall not
be failure of justice on account of an unfair trial.”
19. Keeping in view the facts and circumstances of this case and the
nature of allegations made against appellant, we are of the opinion that no
failure of justice has occasioned nor the trial was in any way unfair.
20. Reliance has also been placed by Mr. Rauf Rahim on Vikramjit Singh
Alias Vicky vs. State of Punjab [(2006) 12 SCC 306], wherein this Court
while dealing with a case under Section 302 of the Indian Penal Code totally
based on circumstantial evidence, this Court held:
“It is now a well-settled principle of law that the
circumstances which according to the prosecution
lead to proof of the guilt against the accused must
be put to him in his examination under Section
313 of the Code of Criminal Procedure.”
21. The prosecution case is purely based on the documentary evidence
maintained by the accused himself. In our opinion, a case of this nature
where the prosecution intends to bring home the charges on the basis of the
documentary evidence maintained by the accused himself cannot be equated
with a case where the accused is charged with commission of an offence,
the proof whereof is based on circumstantial evidence alone.
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22. Furthermore, as the appeal preferred by the appellant was admitted by
the High Court only on the question of sentence, neither the High Court nor
this Court was required to go into the merit of the matter. We have done so
inter alia on the ground that the High Court has also entered into the merit
thereof. That part of the order of the High Court whereby a limited notice
was issued is not in question. The High Court having taken into
consideration the entire facts and circumstances of this case reduced the
period of imprisonment from six months to three months.
Mr. Rauf Rahim would contend that we should invoke the proviso
appended to Section 7(1)(a)(ii) of the Act.
The said provision can be invoked provided the Court is in a position
to assign special reasons therefor. Such a case, in our opinion, has not been
made out. Appellant is found to have contravened both the 1968 Order as
also the 1977 Order.
23. Our attention has been drawn to a decision of this Court in
Harivallabha & Anr. vs. State of M.P. [(2005) 10 SCC 330]. No reason has
been assigned therein. What were the special facts and circumstances of
their case which persuaded their Lordships to invoke the provisions of
Section 360 of the Code had not been stated.
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24. In the facts and circumstances of the case, we are of the opinion that
no case has been made out to invoke the proviso appended to Section 7(1)
(a)(ii) of the Act particularly in view of the fact that appellant was found to
have violated the provisions of both the Orders.
Appellant was dealing with an essential commodity like kerosene.
If the Parliament has provided for a minimum sentence, the same
should ordinarily be imposed save and except some exceptional cases which
may justify invocation of the proviso appended thereto.
25. In India, we do not have any statutory sentencing policy as has been
noticed by this Court in State of Punjab vs. Prem Sagar & Ors. [2008 (9)
SCALE 590]. Ordinarily, the legislative sentencing policy as laid in some
special Acts where the Parliamentary intent has been expressed in
unequivocal terms should be applied. Sentence of less than the minimum
period prescribed by the Parliament may be imposed only in exceptional
cases. No such case has been made out herein.
26. For the reasons aforementioned, the appeal is dismissed. Appellant
shall surrender before the learned Special Judge for serving out the
remaining sentence.
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……………….…..………….J.
[S.B. Sinha]
..………………..……………J.
[Cyriac Joseph]
New Delhi;
December 19, 2008