Foundation Of Complaint Doubtful Where Police Accompanying Raid Turns Hostile: Calcutta High Court Sets Aside Conviction Under Essential Commodities Act

The High Court was considering a criminal appeal filed under Section 374(2) of the Code of Criminal Procedure against the order of conviction and sentence passed against the accused appellant under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3(2) of the West Bengal Declaration Of Stocks and Prices Of Essential Commodities Order, 1977 and 3(2) of the West Bengal Motor Spirit and High Speed Diesel Oil (licensing control, and maintenance of supplies) Order, 1860.

The Single Bench of Justice Chaitali Chatterjee Das held, “In terms of criminal jurisprudence the order of conviction can only be passed after the Court is satisfied that the prosecution has proved the case beyond the shadow of all reasonable doubts. Where the police accompanying the raid turned hostile, the foundation of the complaint remains doubtful and the officers measuring the excess quantity having no knowledge of the slopping of the underground tanks, create a doubt over the correct measurement of the quantity itself .Further the stock cum rate Board was found at the service station and seized, primarily do not established that the prosecutions proved the case beyond doubt that there was violation.”

Advocate Anirudha Bhattacharyya acted as Amicus Curiae, while Advocate Manisha Sharma represented the Respondent.

Factual Background

The case dates back to the year 1990, when some police officers and the enforcement branch raided the Sage service station when the appellant was not personally present. On inspection of the pump, they found one wooden board with the writing no oil available display in the front office room of the said petrol pump. During inspection, they checked the Stock cum Rate Board, Stock, cum Sale Register, Cash Memo Book, etc., in respect of dealing with H.S.D oil and found opening stock on November 23, 1990, as 3447 L, but on physical verification of the underground tank of the said petrol pump, found a shortage of 279 L oil. Subsequently, a charge sheet was submitted against the appellant, and the Special Court passed an order of conviction.

Arguments

It was the appellant’s case that the measurement of H.S.D oil in the two underground tanks of the service station by D.E.B Officials was not done following the procedure. It was his further contention that there was no satisfactory explanation for the allegation of keeping a hundred litres of oil as alleged.

Reasoning

On a perusal of the facts of the case, the Bench noted that the fact of selling of 750 L of H.S.DL2 different customers under cash memos were not controverted, and there was nothing contrary proved. The sale of such a quantity being affected from the service station on that day was also proved. It was noted that the quantity was decided was not on the basis of a robust scientific mechanism, but mostly on primary measurement made with a stick.

As per the Bench, the fact of not displaying the stock and price Board of the service station showing the opening balance of oil as well as its sale price on the relevant day itself, remained doubtful in the absence of any corroborative evidence with regard to the prosecution case. “The learned Special Court relied upon the evidence of Page 9 of 10 P.W.1 and 6 for passing an order of conviction and the actual measurement of the oil found from the underground tanks, which has been challenged by the defence counsel was not considered as the zimma holder, did not demur the receipt of the quantity of oil mentioned in the document”, it added.

After a scrutiny of all of the evidence of the witnesses, the Bench noted that the officials found a board displayed outside the service station where it was mentioned that oil was not available, but the board was removable and it was doubtful whether at all at that time the Board was there or not.

The Bench further took note of the fact that the police accompanying the raid turned hostile and the officers measuring the excess quantity, having no knowledge of the slopping of the underground tanks, created a doubt over the correct measurement of the quantity itself. Thus, allowing the appeal, the Bench set aside the order of the conviction passed by the Special Court.

Cause Title: Bidhi Chand Chowrasia v. The State of West Bengal (Case No.: CRA 2 OF 1993)

Appearance

Amicus Curiae: Advocate Anirudha Bhattacharyya

Respondent: Advocates Manisha Sharma, Pushpita Saha

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