(1) IN THE COURT OF THE SESSIONS JUDGE, CACHAR, SILCHAR. (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 Assam ....... 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 Vairengte , 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.