This criminal appeal is directed against an order of conviction under Section 7 (1)(a)(ii) of the Essential Commodities Act for alleged violation of provisions of Paragraph 3 (2) of the West Bengal Stocks and Prices of essential Commodities Order, 1977 and Paragraph 3 (1) of the Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 and sentence of rigorous imprisonment for three months and fine of Rs. 1,000/- with default clause.
2. It appears from the examination of the appellant under Section 251 of the Code of Criminal Procedure, the case against him is as follows; "On July 3, 1984 at about 9.30 a.m. in the morning a raid was conducted by the officers of the District Enforcement Branch at the shop of the appellant situated at Kolaghat Nutan Bazar, when it was found he had in his possession 56 quintals of wheat in 56 gunny bags in a room adjoining to the west of his Ata Chaki Shop and also six quintals of wheat in 10 bags at Ata Chaki Ghar, which he stored without any license or authority in contravention of the provisions of paragraph 3 (2)(ii) of the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 and the appellant also did not display the Stock and Price Board showing the stock and price of the said essential commodities he possessed in contravention of provisions of Paragraph 3 (2) of the West Bengal Declaration of Stock and Prices of the Essential Commodities Order, 1977." It is the defence case that the appellant never dealt in wheat or wheat products but at his Ata Chaki Shop he used to grind wheat against the necessary charges and possession of total 62 quintals of wheat has been denied.
3. Heard Ms. Sreyashee Biswas, the learned Counsel appearing on behalf of the petitioner as well as Mr. Swapan Kumar Mallick, the learned advocate appearing on behalf of the State. Perused the impugned Judgement, the deposition of the witnesses as well as other materials on record.
4. The prosecution in order to establish the charge against the appellant examined as many as nine witnesses. Out of whom the P.W. 1 is the complainant of the case. The P.W. 2 led the raiding party. P.W. 8 is the Investigating Officer of the case and also a member of the raiding party. P.W. 9 was the Officer-in-Charge of Panskura Police Station at the time of the occurrence. While the P.W. 3, 4, 5 and 6 are the local residents.
5. According to the provisions of Paragraph 2 (d) of the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 hereinafter referred as Control Order, 1973 a "dealer" means, a person who is engaged in any business involving, (i) Sale or purchase for sale of wheat or wheat products or both in a quantity exceeding 10 quintals in one transaction or storage for sale of wheat or wheat products or both in a quantity exceeding 15 quintals at one time, either on his own behalf or on behalf of any other person as commission agent or Arhatia, or,
(ii) Purchase and storage of wheat for making wheat products therefrom and sale of such products.
6. In this case out of four public witnesses, P.W. 3 Dayananda Roy and P.W. 4 Sushil Kumar Bera were declared hostile by the prosecution. However, as the law stands the entire evidence of any witness does not completely efface away merely because he has been declared hostile. The portion of the evidence which does not stands contradicted are still good evidence and can always be taken into consideration by a Court. While P.W. 3 admitted in his chief that after seizure of wheat from the Ata Chaki Shop of the accused, seizure list, Exhibit - 2 was prepared and he put his signature thereon, but P.W. 4 claimed to have signed on a seizure list which was blank. Thus, from the evidence of P.W. 3 although it appears that wheat was seized from the shop of the appellant under Exhibit 2, but his evidence is of no help to the prosecution, to establish that the actual quantity of wheat, which was seized from the shop of the appellant was beyond the permissible limit. According to the P.W. 3 he could not recollect anything about total quantities or bags of wheat. The P.W. 3 also never claimed that he signed on the seizure list after satisfying the same was prepared properly and the actual quantities of wheat seized was correctly mentioned there. The only other independent public witness, the P.W. 5 Kumaresh Mukherjee not declared hostile deposed nothing as regards to the alleged seizure of wheat and wheat products from the shop of the appellant. Accordingly, the case of the prosecution that wheat and wheat products exceeding 15 quintals was seized from the shop room of the appellant entirely rests on the evidence of the police witnesses, who are the members of the raiding party. Where the allegation is of violation of provisions of paragraph 3 (1) of the Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 it is essential that the prosecution must show that the accused was dealing in wheat and wheat products exceeding 15 quintals. Thus, in absence of any independent corroboration, I am not inclined to hold solely on the evidence of the police witnesses, who are the members of the raiding party and obviously interested in the success of the case that at the relevant time the appellant was dealing in wheat and wheat products exceeding 15 quintals.
7. The appellant was also convicted under Section 3 (2) of the West Bengal Declaration of Stocks and Prices of the Essential Commodities Order, 1977 for not displaying the Stock Board showing the stock held by him on that particular day and its prices. In this regard, I find not only the public witnesses who were declared hostile but also the P.W. 5 has not stated anything about the same and, accordingly, I am not inclined to sustain the conviction of the appellant for alleged violation of the said provisions on the basis of the evidence of the police personnels, who are the members of the raiding party. For the reasons stated above, I am of the opinion that the prosecution has not been able to establish the charge against the petitioner for violation of provisions of paragraph 3 (1) of the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 and Paragraph 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 and thus his conviction under Section 7 (1)(a)(ii) of the Essential Commodities Act cannot be sustained. In the result the appeal stands succeeds and order of Conviction stands set aside. The appellant who is now on bail be discharged from the bail bonds. The office is directed to send down the Lower Court Records immediately.
