(1)

IN THE COURT OF THE SESSIONS JUDGE,

CACHAR, . (Criminal Appellate Jurisdiction)

Crl. Appeal No.13 of 2015.

Present :-Mr.D.Ullah, A.J.S Sessions Judge, Cachar, Silchar.

Sri Kripesh Ghosh

...... Appellant / accused

- Versus -

The State of

...... Respondent / complainant

Appearance :-

For the appellant :- Sri A. Biswas, ld. Advocate

For the respondent :- Sri R.M. Das, learned PP

Argument heard on :- 31.10.19, 6.11.19

Judgment delivered on :- 16.12.2019.

J U D G M E N T

1. This Appeal has been preferred by the appellant Kripesh Ghosh against the judgment of conviction and sentence passed by the court of ld. C.J.M. Cachar, Silchar on (2)

4.06.15 in C.R. Case No. 2636 of 2006 convicting the accused / appellant U/S 7 of the Essential Commodities Act and sentencing him to undergo Simple Imprisonment for a period of three months with fine of Rs.1,000/- in default to pay fine, to undergo Simple Imprisonment for another period of one month.

2. The brief facts of the case is that Sri Jugal Kishore Paul, Inspector of Food and Civil Supplies, Silchar , the complainant of this case accompanied with other staffs on 10-4-2006 at about 11-30 A.M. searched the godown of accused/appellant situated at Panibora Bazar under Dholai police station and found seven thousand liters of high speed diesel in his illegal possession. It is stated that on demand the accused could not show any valid papers/documents for possessing the said high speed diesel. It is also alleged that accused is not a DEALER appointed by any oil company and therefore the complainant seized the said seven thousand liters of high speed diesel containing 35 numbers of barrels from the possession of the accused. It is also stated that the accused did not procure license from the District Magistrate for possessing and storing the said item. It is further alleged that the accused therefore has deliberately contravened the clause 18(1) and (2) of the Assam Trade Articles ( L & C) order / 1982 and clause 2 (e) and ( p ) of the Motor Spirit and High Speed Diesel ( Regulation of Supply and distribution and prevention of malpractices ) order / 1988 promulgated under (3)

Section 3 of the Essential Commodities Act 1955 ( Act. X of 1995 ).

Alleging as above the offence report dated 10/04/2006 was submitted before the Superintendent of Food and Civil Supplies, Silchar by the complainant and the same was forwarded to the court of ld. Additional Deputy Commissioner, Cachar, Silchar for trial of the accused with a prosecution sanction of the accused. Thereafter, the offence report was forwarded to the court of ld. C.J.M. Cachar, Silchar who transferred the case, after registering the same, to the court of ld. Additional C.J.M. Cachar, Silchar. On appearance of the accused in the ld.court below ,the copy was furnished to him and thereafter ld. Trial court framed charge u/s 7 of the Essential Commodities Act and then the prosecution examined four witnesses including the informant. Thereafter ld. Court below vide order dtd. 1.02.11 passed an order that as the case is a complaint case, there should have been evidence recorded before framing charge. Thereafter hearing both sides , charge was framed against the accused u/s 7 of the Essential Commodities Act and charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Thereafter one CW.1 was examined, statement of the accused person was recorded u/s 313 of Cr.P.C. and accused also examined two D.W.s including himself. The case was withdrawn to the court of ld. Chief Judicial Magistrate, Cachar, Silchar from the court of ld. (4)

Additional Chief Judicial Magistrate, Cachar, Silchar vide order dtd. 15.02.2011 and thereafter ld. Court below after hearing argument passed the impugned judgment and order of conviction and sentence dated 4.6.15 convicting the accused / appellant U/S 7 of the Essential Commodities Act and sentencing him to undergo Simple Imprisonment for a period of three months with fine of Rs.1,000/- in default to pay fine, to suffer simple imprisonment for another period of one month.

3. Being highly aggrieved by and dissatisfied with the aforesaid judgment and order, the accused as appellant preferred this appeal mainly on the grounds:-

(I) That, the ld. Magistrate erred both in law and facts while passing the impugned judgment;

(ii) That, the ld. Magistrate omitted to consider that the basic requirement of proof of prosecution sanction which has not been complied with in the case ;

(iii) That, the Ld. Magistrate failed to peruse the evidence adduced by the prosecution witnesses ;

(iv) That the Ld. Magistrate did not consider the Essential and legal requirements of a valid search and seizure as provided U/S 100 Cr.P.C.

(v) That, the ld. Magistrate failed to consider that no seizure of Diesel from the possession of the accused / appellant was legally proved by the complainant/respondent ; (5)

(vi) That, the ld. Magistrate totally failed to apply his judicial mind in considering the materials brought out from the cross examination as regards, Ext.1- seizure list, Ext.2- Sim Zimmanama and Ext.3- alleged confessional statement ;

(vii) That, the ld. Magistrate totally failed to consider that there was no contravention of any of the provision such as clause 18(1),(2) of the Assam Trade Articles ( Licensing and control ) order 1982 and / or Clause 2(e) and (p) of the Motor Sprit and High Speed Diesel ( Regulation of supply and Distribution and prevention of Mal practices order 1988 Promulgated U/S 3 of the Essential Commodities Act 1955),

(viii) That, the ld. Magistrate while passing the impugned judgment totally dis-regarded the positive evidence adduced by the appellant/accused as DW.1 through providing Ext. C to F which remain unrebutted ;

4. I have heard respective Ld. Counsel for the parties. Both the sides also submitted written argument. The Ld. Counsel for the accused/appellant has submitted that the Ld. Magistrate failed to peruse the evidence adduced by the prosecution witnesses in the case. He further submitted that the Ld. Magistrate , while passing the impugned judgment omitted to consider that no seizure of Diesel from the possession of the accused/appellant was legally proved by the complainant/respondent either through the evidence of alleged seizure of P.W.1 or by and other P.Ws. It is further (6) submitted that the Ld. Magistrate failed to consider that there was no contravention of any of the provisions of Clause 18(1) & 18(2) of the Assam Trade Articles or Clause 2(e) and (p) of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices Order 1988 Promulgated u/s 3 of the Essential Commodities Act’1955). The Ld. Counsel for the appellant further submitted that the Ld. Magistrate totally disregarded the positive evidence adduced by the appellant as DW.1 through providing Ext.C to F which remained unrebutted and in that view of the matter the Ld. Magistrate ought not to have passed the impugned judgment and as such the same is liable to be set aside.

Besides, the oral arguments the Ld. Counsel for the accused/ appellant has submitted written argument in support of the case . It is stated in the written argument that the Ld. Trial court while passing the impugned judgment, the Ld. Trial court omitted to consider the material contradiction and vital inconsistency in the evidence adduced by P.W.3 & 4 and also their cross-examination including the evidence adduced by the P.W.2, the complainant. Both of them admitted that the alleged confessional statement of the accused, marked as Ext.3 were not in the handwriting of the accused but the P.W.4 in his cross-examination stated that Ext.3 was written by P.W.2. The P.W.1 & 3 did not state as to who wrote such Ext.3 and surprisingly the P.W.2 in his evidence did not (7) corroborate that Ext.3 was written by him . It is further stated in the written argument that in the concluding portion of his examination in chief, the P.W.2 mentioned about issuance of one show cause notice to the accused and that there was no proper reply thereto by the accused but during his cross-examination the P.W.2 stated that he does not know whether any separate proceedings under the provisions of the Essential Commodities Act was initiated by the District Magistrate against the accused. On the other hand, the accused while examining himself as DW.1 has stated that he was served with a show cause notice issued by the Office of the Deputy Commissioner and that he proved the said notice as the Ext.A. In the written argument it is also stated that the accused/appellant is a transport contractor for petroleum products under Indian Oil Corporation Limited and that all such matters, including the work order for effecting transportation petroleum products along with work orders as Ext.C to E were mentioned in Ext.B reply. The accused/appellant also explained the matter as regards possession of the diesel which was scheduled to be transported to , Mizoram for effecting delivery thereof the MIZOFED in said reply marked as Ext.B . The original memos issued by the MIZOFED were also relied upon in Ext.B and those were proved in the case as Ext.F to F(5) and all such matters were well substantiated by the defence through the evidence adduced by the accused/appellant with (8) all relevant supporting documents and such specific defence case has not be shaken in any way by the prosecution. But while deciding the case, the Ld. Court below omitted to consider such vital aspects and thereby caused grave miscarriage of justice.

In view of the above, the Ld. Counsel for the appellant has prayed to set aside the impugned judgment passed by the Ld. Court below.

On the other hand, the Ld. P.P has submitted that the Ld. Court below has rightly convicted the accused/appellants basing on the evidence on record and as such there is no scope for any interference and he prayed to dismiss the instant appeal.

6. Point for determination:-

Whether the impugned judgment & order of conviction and sentence dated 4.06.15 that was passed by the Ld. CJM. , Cachar, Silchar in CR Case No.2636/18 is sustainable in law or requires any interference by this Court .

Findings and Reasons thereof are as follows;

7. I have perused the record of C. R Case No. 2636/18. I have also gone through the written argument submitted by appellant side. The prosecution examined four witnesses including the informant. One C.W. and two D.Ws were also examined. For just decision of the case, firstly I have to see the evidence on record. (9)

8. The PW.1 , Sri Swapan Kumar Nath, deposed in his evidence that about two years back from the date of his deposition one day at about 11-00 A.M. while he was coming from Aizwal he found J.K. Paul, Inspector, Food and Civil Supply at Panibhora on N.H. 54 and he told PW.1 that he had seized some materials from the shop of the accused Kripesh Ghosh and took his signature in a seizure list. Ext.1 is the Seizure list, Ext.2 is the zimmanama and Exts. 1(1) and 2(1) are the signatures of PW.1 . He has stated further that he also knows the accused as they are of the same locality.

The PW-1 has stated in his cross-examination that he knows J.K. Paul since before the occurrence. He has stated further that he did not go to the house or shop of Kripesh Ghosh and nothing was seized in his presence. He has stated further that he knows Mehbob Alom Mazumder, who is the Manager of Choudhury Service Station. This witness has stated further in his cross-examination that zimmanama was not prepared in his presence.

9. The PW-2, Jugal Kishore Paul, has stated in his evidence that on 10-04-2006 he was Inspector, Food & Civil Supplies, Silchar and at that time Mr. Niten Khare, I.A.S. was the in Charge of DDS. He has stated further that as per the instruction of Niten Khare he along with Paramesh Bhattacharjee and Hrishikesh Choudhury on that day at about 12-30 PM went to Panibora Bazar and got open the godown of Kripesh Ghose. He has stated further more that on search (10) they found 7000 liters of diesel stored in 35 numbers of barrels and accused failed to produce any documents for possessing the said diesel. He has stated further that accused had by writing admitted that he had no valid documents for possessing the diesel. PW.2 has proved written admission of the accused as Ext. 3 and Ext. 3(2) as his signature. This witness has also proved the signature of accused Kripsesh Ghose as Ext. 3(3). PW-2 has stated further that he seized the diesel contained in 35 numbers of barrels. He has proved the seizure list as Ext -1 and Ext. 1(2) as his signature. He has stated that the seized diesel was given in the zimma of Chodhury Service Station. He has proved the zimma nama as Ext.2 and Ext.2(2) as his signature. He has further deposed that as per the order of the Deputy Commissioner , Cachar seized diesel was sold and sale proceed was deposited by way of Treasury Challan. He has proved the Treasury Challan as Ext. 4 and Ext.4(1) as the signature of Treasury Officer. He has also proved the signature of the then DDS, in Charge, Utpal Chakraborty as Ext. 4(2) and his signature as Ext. 4 (3). This witness has deposed further that on the basis of the report, Deputy Commissioner, Cachar accorded prosecution sanction and then he laid offence report against the accused. He has proved his forwarding report of the offence report as Ext. 5 and Ext. 6 as the offence report. He has proved his signatures as Ext. 5(1) and Ext. 6(1). This witness stated further that accused was asked to show cause by the Deputy (11)

Commissioner, Cachar but he could not give satisfactory reply and then he laid the offence report after obtaining prosecution sanction. The show cause notice is proved as Ext.7 and Ext. 7(1) is as the signature of the Deputy Commissioner, Cachar which is known to him. He has also proved forwarding letter of offence report to the Court of C.J.M., Cachar as Ext. 8 and Ext. 8(1) as the signature of Additional Deputy Commissioner.

10. The PW-2, in his cross-examination has stated inter alia that he raided the godown of the accused as per verbal instruction of Mr.N. Khare. He has stated further that he has not enclosed the sanction letter with his offence report. He has stated further that he seized the diesel in presence two witnesses who are Ajoy Jain of SonaiRoad, Silchar and Swapan Kumar Nath of Natunbazar.He has further stated that Natunbazar is 5/6 km away from Panibora andSonai Raod is 20 KM away from Panibora. This witness in his cross examination has stated further that Ext.3 admission/ confession letter is in his hand writing and after putting signature of accused the witness Swapan Kumar Nath put his signature. PW.2 has stated further in his cross-examination that before giving Zimma of the seized articles he did not take permission from the District Magistrate. He could not say in his cross examination regarding any separate proceeding under the provisions of E.C. Act. The witness has denied the suggestion that he did not search and seize the articles in accordance with law. (12)

11. The PW-3 Pramesh Bhattacharjee has also deposed in his evidence that on 10-04-2006 he was posted at Silchar as Inspector, Food and Civil Supplies, Silchar and on that day he accompanied J.K. Paul and Sub Inspector Hrishikesh Choudhury to Panibora to detect High speed Diesel, Petrol etc stored illegally and there they found unauthorized storage of 7000 liters high speed diesel in the godown of accused Kripesh Ghose stored in 35 numbers of barrels. He has stated further that accused failed to produce any valid documents and the diesel was seized in presence of the accused. He has also stated further that J.K. Paul seized the diesel vide Ext-1 seizure list and Ext.-1(3) is the signature of PW.3 as a witness. He has also proved Ext.2(3) as his signature on zimmanama Ext.2 by which seized diesel was given in the zimma of Mehbob Alam Mazumder. He has also proved the recorded confession of the accused as Ext.3 and Ext.3(4) is his signature as witness.

In his cross examination PW.3 stated that he cannot show any written order of Mr. Nitin Khare at the moment of his deposition. He stated in his cross examination that one Swapan Nath was also a witness in Ext.1 and PW.3 was present there. He further stated in his cross examination that Ext.1 and Ext.3 were written earlier and Ext.2 was written a little after. Swapan Nath was also a witness in Ext.2. From the cross-examination of PW-3 it appears that he has denied the suggestion that Ext. 3 was not written by the accused in (13) his own hand writing. PW.3 also denied the suggestion that Ext.1,2 & 3 were written subsequently and he put his signatures later on. He has also denied the suggestion that nothing was seized in his presence and no confession was made in his presence.

12. The PW-4, Hrishikesh Choudhury has also deposed in his evidence that on 10-04-2006 he accompanied by Jugal Kishore Paul went to Panibhara and found unauthorized storage of 7000 litres of high speed diesel stored in 35 numbers of barrels in the godown of accused and they had seized the same from the accused who was present there and the accused failed to produce any documents for possessing the said diesel. He has stated further that Ext.1 is the seizure list prepared by Jugal Kishore Paul and PW.4 has proved his signature as a witness in the seizure list as Ext. 1(4). He has also proved his signature in Ext-2 zimmanama as Ext.2(4) by which seized diesel was given in the zimma of Mehboob Alam Mazumder. He has also proved the recorded confession of the accused as Ext-3 and Ext.-3(5) is the signature of PW.4 as witness.

In his cross examination, PW-4 stated that Ext.1 and Ext.3 were written earlier and Ext.2 was written a little after . PW.4 has denied the suggestion put forwarded to him that Ext. 3 was not written by the accused in his own hand writing and the same was written by J.K. Paul, and that Ext- 1,2 and 3 were written subsequently and also denied (14) that he put his signatures later on. He has also denied the suggestion that nothing was seized in his presence and no confession was made in his presence.

13. The CW-1, Subir Paul has stated in his evidence that on receipt of summons from the Court he has brought the required information with him on flash point of HSD (High Speed Diesel). He collected the information from website of Petroleum Explosive Safety Organization (PESO), an organization of Government of . This witness has stated further that PESO is the authorized institution to fix the standard of petroleum product. He has stated further that as per Petroleum Act, 1934,petroleum products were classified in three groups according to Flash Point System and they are Class A - i.e, petroleum having Flash Point below 23 degree centigrade; Class- B includes petroleum products having Flash Point of 23 degree centigrade and above but below 65 degree centigrade and Class-C includes petroleum products having Flash Point 65 degree and above but below 93 degree centigrade. He has deposed further that HSD in diesel is a product covered under Class B and HSD should have normally of 35 degree centigrade at the minimum. He has proved Ext. X as the forwarding letter of the required information and Ext.X(l) as the signature of Senior Divisional (Retail Sale), Manager, Silchar, Division He has also proved the classification of various petroleum products as Ext. Y.

14. Kripesh Ghose , the accused himself is (15) examined as DW.1 who has stated in his deposition that he deals in transportation of petroleum in IOC and he has got tanker. He has stated further that he got a show cause notice from the office of Deputy Commissioner relating to this case and he replied to the notice. He has proved Ext- A is the notice received by DW.1 which is the copy of Ext.7 and Ext.- B as his reply to the show cause. He has proved his signature as Ext.- B(1). He has stated that in his reply he mentioned that he plied 7/8 numbers of tankers for carrying oil and he deposited copy of work order issued by Indian Oil Corporation. He has proved the work orders as Ext. C,D & E. In his reply he also mentioned that he purchased the diesel from Mizofed for running his Oil Tankers and the same was kept stored in his Panibhara Godown. He has further stated that along with his show cause reply he enclosed the vouchers of purchasing the diesel and Ext- F to Ext. F(5) are the original vouchers. He has denied that he stored the diesel illegally for selling the same.

In his cross-examination, DW-1 has denied the suggestion that he has not submitted the documents relating to his tankers as well as his brother's tankers. He has denied the suggestion that vide Ext.-3 he confessed that he illegally stored the diesel in question. He has stated further that he could not show the vouchers to the Supply Inspector when he visited his godown as he (DW-1) was at Silchar then. He has stated further that he has not submitted any (16) documents in support of the fact that he has Oil Tankers. He also stated in his cross examination that he did not obtain any permission in respect of storing oil on purchasing the same. He denied the suggestion that his brother Prafulla has no oil tanker. He has denied the suggestion that he stored the diesel for running illegal business.

15. The DW-2, Joydeep Dey has stated in his evidence that he has been serving under I.O.C. for last 18 years and he is now posted as Senior Deputy Manager, Ramnagar Depot of IOC. He has stated further that accused Kripesh Ghose is a carrying contractor of IOC. He deposed that Ext.G appears to be an internet down load copy relating to Flash Point of Petroleum products and in Ext.G diesel fuel shown in category of three types - 1D,2D and 4D with respective Flash points.

The DW-2 in his cross examination has stated that he has no documents to show that the accused is a carrying contractor of IOC. This witness also stated that High Speed Diesel Flash Point is same worldwide. He further stated that Ext.X letter issued by their office and in this letter the flash point of Diesel , which is Category B Product, was shown as 23 degree and above up to 65 degree centigrade.

16. Appreciating the evidence on record , it is found that point for determination for the Ld. Trial court was -

“Whether on 10.4.2006 at about 12.30 PM at (17)

Panibhara Bazar under Dholai P.S accused was found by the informant Jugal Kishore Paul, Inspector , Food and Civil Supplies, Silchar found the accused Kripesh Ghosh illegally possessing 7000 liters of High Speed Diesel in his godown without any valid document for possessing the same and thereby committed an offence u/s 7 of the Essential Commodities Act, 1955 ?”

17. The prosecution has proved the seizure of 7000 liters of High Speed Diesel containing 35 nos. of barrels vide Ext.1 and the same was given zimma vide Ext.2 to one Mehabub Alom Mazumder , who is the Manager of Choudhury Service Station . The defence cross-examination of the P.Ws has failed to prove the above incriminating evidence put forwarded by the prosecution side in respect seizure of the 7000 liters of High Speed Diesel , rather the accused as DW.1 and more particularly by exhibiting the Ext.B had admitted possession of High Speed Diesel amounting to 7200 liters in 35 nos. of barrels which was shown by the Seizing Officer as 7000 liters in 35 nos. of barrels . Therefore, on the evidence of the P.Ws as well as of the stand of the accused it is clearly proved that the accused was found possessing 7000 liters of High Speed Diesel in 35 nos. of barrels which was seized vide the Ext.1.

18. Now, let me consider as to whether the said High Speed Diesel was kept in the godown of the accused without any valid documents for possessing the same. (18)

19. In the case at hand, the prosecution has proved the confessional statement of the accused/appellant in the form of Ext.3 and although the accused/appellant denied the execution of Ext.3 on the ground that his signature was taken on a blank paper but such stand was taken by the accused in Ext.B in his reply to his show cause notice that his signature was obtained on blank paper and as such the Ld. Tiral court has not accepted the stand taken by the accused and believes the truthfulness of Ext.3.

20. Section 3 of the E.C Act empowers the Central Government to regulate or prohibit the production, supply and distribution and trade and commerce of essential commodities. Section 2(a)(viii) provides that petroleum and petroleum products are essential commodities . Section 2(p) of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices)Orders, 1998 says that “unauthorized possession” means keeping of motor spirit or high speed diesel, in contravention of the provisions of this order or keeping any petroleum product or its mixture which can be used or adulteration under the control of the dealer or any other person without valid documents issued by the concerned oil company. Clause- 18 of the Assam Trade Articles(Licensing and Control) Order, 1982, provides that no person shall either by himself or by any person on his behalf, store or have in his possession at any time any trade articles (19) mentioned in schedule I and schedule II in quantity exceeding the limits fixed under an order issued by the Central Government or by the State Government by issuing notification in Official Gazette from time to time. Schedule I part-E includes petroleum products.

21. The oral and documentary evidence of the prosecution as well as defence as discussed above and even the stand of the accused in respect of seizure of High Speed Diesel proves the facts that 7000 liters of HSD was seized from the possession of the accused. The stand of the accused is that he is a Transport Contractor for petroleum products under Indian Oil Corporation Limited and he has exhibited the Ext.C to Ext. E, the various work orders given to him by the Indian Oil Corporation Ltd. The further stand of the accused is that he had purchased the HSD through the Ext.F to F(5) but while deciding the case the Ld. Trial court has not considered all the above aspects. Even if, it is proved and considered that the accused is a Transport Contractor having vehicles , which requires diesel then also without lawful authority he cannot store 7000 liters of HSD without any valid documents issued by the competent authority. In the instant case , the accused side has also failed to prove any document authorizing him to transport those High Speed Diesel from Mizoram to Panibhora bazaar. Therefore, upon consideration of the entire evidence of the prosecution and the defence, I am of the considered opinion that the accused cannot get the (20) benefit by virtue of Ext.F to F(5) to store the HSD amounting to 7000 liters without any valid documents , issued by the competent authority.

22. In the instant case , from the available evidence on record , it is found that the prosecution side has clearly established that the accused had stored 7000 liters of HSD in 35 nos. of barrels in his godown without any valid document in violation of the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply & Distribution and Prevention of Malpractices) Orders, 1998 and the Assam Trade Articles(Licensing & Control) Order, 1982, Promulgated u/s 3 of the Essential Commodities Act,1955 which entails punishment u/s 7 of the Essential Commodities Act,1955 and accordingly, the Ld. Trial court had rightly held the accused guilty and convicted for the offence u/s 7 of the E.C Act and punished accordingly.

23. In view of the above position, I do not find any illegality or irregularity in the order of the Ld. Tiral court rather, it is found that the Ld.Trial court has rightly appreciated the oral and documentary evidence on record to come to the judgment of conviction and sentence and the same does not requires any interference of this appellant court.

24. In the result, the appeal stands dismissed on contest, however, no costs are awarded. The judgment and (21) order of conviction & sentence dated 4.6.15 passed by the Ld. Trial court in C.R Case No. 2636/2006 is hereby upheld .

25. The accused/appellant is directed to appear before the Ld. Trial court within 30 days from today to serve out the sentences as ordered.

26. Send back the LCR with a copy of this judgment to the Ld. Court below.

Given under my hand and the seal of this court on this the 16th day of December/19.

( D. Ullah), Sessions Judge, Cachar, Silchar. Dictated & corrected by me ;

Sessions Judge, Cachar, Silchar.

Transcribed by- Sahid AhmedLaskar., stenographer.