Calcutta High Court: In a Criminal Revision application against the judgement passed by the Special Judge where the appellant was found guilty of an offense punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for alleged non-compliance with license conditions, specifically the omission of the license number on the signboard and cash memos, a single-judge bench comprising of Subhendu Samanta,* J., found discrepancies in the prosecution’s conduct, including the lack of authorization for the inspection conducted by PW 1. The Court allowed the appeal, the order of conviction was set aside, and the appellant was acquitted.
Brief Facts
The instant appeal is preferred against the judgment dated 23-03-1990, passed by the Special Judge (EC Act) Birbhum, Suri, where the appellant was found guilty of an offense punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, for violating Paragraph 4 of the West Bengal Cloth and Yarn Control Order 1960.
On 05-02-1988, Prosecution Witness 1 (PW 1) visited the cloth store “Ali Cloth Store” owned by the appellant. During the inspection, it was discovered that cash memos lacked a license number, and the shop’s signboard did not display the license number. Consequently, a notice was served, and a mill-made saree, along with the cash memos and signboard, was seized in the presence of witnesses.
The appellant was arrested, and a written complaint was lodged, leading to the initiation of the prosecution. The charge sheet was filed under Section 7(1)(a)(ii) of the Essential Commodities Act, and the appellant was tried before the Learned Special Judge. The Special Judge, after recording evidence, found the appellant guilty of violating Paragraph 4 of the West Bengal Cloth and Yarn Control Order 1960.
Parties’ Arguments
The appellant contended that the judgment and conviction are impermissible and not supported by law. It was argued that the essential elements of the charges were not proven beyond reasonable doubt. It was alleged that there was lack of consideration for the guidelines of the Enforcement Authorities, suggesting the possibility of vexatious complaints. The appellant, holding valid licenses, asserted that the mere omission of the license number in cash memos does not constitute an offense. The appellant also questioned the jurisdiction of PW 1 in inspecting the appellant’s shop without specific authority.
The State argued that the evidence presented has probative value, and the seizure was sufficiently proven by independent witnesses. It was contended that the investigating officer (PW 4) affirmed the sufficiency of evidence regarding the violation of Paragraph 4. It was also contended that the judgment and conviction are legal, and the appeal should be dismissed.
Court’s Assessment
The Court observed that the Special Judge recorded the conviction based on the violation of Paragraph 4 of the West Bengal Cloth and Yarn Control Order 1960. It was observed that conditions 4 and 5 of the license required the display of the license number on the signboard and quoting it in bills and cash memos. It was further observed that Order 16 of the West Bengal Cloth and Yarn Control Order outlines the conditions for inspection.
The Court observed that the State-prosecution alleged the appellant’s failure to comply with these conditions and on the other hand, the appellant raised concerns about the prosecution’s conduct, emphasizing the lack of written authorization for the inspection beyond territorial jurisdiction.
The Court noted that the prosecution failed to demonstrate written authorization for the inspection as per Order 16 of the West Bengal Cloth and Yarn Control Order. The Court noted discrepancies, such as the absence of the DEB Inspector’s signature and the failure to prove secret information or specific orders for inspection. The Court found that the prosecution’s initiation of the investigation without proper authorization is bad in law. The Court opined that Mens rea, a key element in criminal offenses, is not established merely by the omission of the license number.
The Court criticized the failure to consider departmental guidelines, stating that such mistakes during normal transactions do not mandate prosecution. The Court held that the appeal has merit, setting aside the conviction and acquitting the appellant.
Court’s Decision
The Court allowed the appeal, setting aside the order of conviction and acquitted the appellant. The appellant, who was on bail, was ordered to be released immediately, and the sureties were released. The Court directed the return of the Lower Court Record and issuance of a certified copy of the judgment to the department concerned.
[Amzed Ali v. State of W.B., 2023 SCC OnLine Cal 4658, order dated 20-11-2023]
*Judgment by Justice Subhendu Samanta
Advocates who appeared in this case :
Mr. Achin Jana, Mr. Prosenjit Ghosh, Counsel for the Appellant;
Ms. Faria Hossain, Ms. Trina Mitra, Counsel for the Respondent/State.
