REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2086 OF 2008 [Arising out of Special Leave Petition (Criminal) No. 4697 of 2008]

HARENDRA NATH CHAKRABORTY     … APPELLANT

Versus

STATE OF WEST BENGAL    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 29.2.2008

passed by a learned Single Judge of the High Court of Calcutta allowing the

appeal in part preferred by the appellant herein from a judgment and order

of conviction and sentence dated 16.3.1993 passed by the learned Judge,

Special Court (E.C. Act), Hooghly, West Bengal in Special Court Case No.

12  of  1991  convicting  him  under  Section  7(1)(a)(ii)  of  the  Essential

Commodities Act,1955 (hereinafter called and referred to,  for the sake of

brevity, as “the Act”) reducing the sentence imposed on him from rigorous

imprisonment for six months and to pay a fine of Rs. 2,000/- in default to

suffer R.I. for another one month to suffer R.I. for three months and to pay

fine of Rs.2000/- in default to suffer R.I. for 15 days.  

3. Appellant was a dealer in kerosene oil having been granted licence in

terms of the provisions of the West Bengal Kerosene Control Order, 1968

(for short, “the 1968 Order”) made by the State of West Bengal in exercise

of its powers conferred by sub-section (1) of Section 3 of the Act read with

clauses (d), (e), (h) and (j) of sub-section (2) of that Section and Section 7

(1)  thereof  as  also  the  Order  No.  26(11)-Com.Genl/66,  dated  18th June,

1966.   

4. The State of West Bengal apart from the aforementioned 1968 Order

made  West  Bengal  Declaration  of  Stocks  and  Prices  of  Essential

Commodities Order, 1977 (for short, “the 1977 Order”)

5.  Indisputably, kerosene is an essential commodity within the meaning

of sub-section (1) of Section 2A of the Act. For  dealing  in  the  said

commodity,  a  licence  is  required  to  be  taken  under  the  1968  Order.

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Appellant was holder of a licence bearing No. DP/64 in terms whereof he

was entitled to deal in the said commodity.  

6. Section 7(1)(a)(ii)  provides for imposition of a penalty on a person

who contravenes any order made under Section 3 with imprisonment for a

term which shall  not be less than three months but which may extend to

seven years and shall also be liable to fine. The proviso appended thereto

postulates that the court may, for any adequate and special reasons to be

recorded in the judgment, impose a sentence of imprisonment for a term of

less than three months.   

7. Manik  Lal  Das,  a  Sub-Inspector  of  Police  conducted  a raid  in  the

shop of the appellant on 28.1.1991.  Several irregularities were found.  A

first information report was lodged inter alia alleging:

“I started physical  verification  of stock cum rate board stock register, cash memo book in respect of dealing of K.Oil and found opening stock of K.Oil dated  27.01.1991  as  1500  liters.  According  to stock register he received 200 liters of K. Oil on the same date  i.e.  total  1700 liters  of  K.  Oil  on 27.01.1991.  Out of 1700 liters he sold 1198 liter as per cash memo dated 27.01.1991.  As such the opening  balance  should  have  been  502 liters  on 28.01.1991.   But  the  Harendranath  Chakraborty did not put opening balance on 28.01.1991 though he received 1000 liters of K. Oil vide cash memo No.  767,  768  dt.  28.1.1991  from  distributor.

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During  physical  verification  in  presence  of witnesses  (i)  Sri  Ashoke  Kr.  Mallick  S/o  Shri Hardhan Mallick of Alipore, P.S. Dadpur,  Dist – Hooghly  (ii)  Sk.  Kasem S/o  Late  Sk.  Rabin  of Alipore village, P.S. Dadpore.  The total stock of Kerosene Oil was found as 450 excepting sale of K. Oil 257 liters dated 28.01.1991.  According to stock register and cash memo book the total stock of K.Oil  should have been 1502 liters.   As such there is shortage of K. Oil 795 liters.”

8. He  did  not,  however,  examine  himself.   He  seized  the  following

articles  under  a  seizure  list  in  the  presence  of  witness  as  well  as  the

appellant:

“1. One K. Oil licence No. DP/64 in the name of Shri Harendra  Nath  Chakraborty  S/o  Dinabandhu Chakraborty  of  village  Alipore,  P.S.  Dadpore, Dist. Hooghly, valid upto 31.12.1991.

2. One  daily  stock  register  in  the  name  of  Sri Harendra  Nath  Chakraborty  for  K.  Oil  duly certified by the Inspector Food & Supply Officer containing page No.1 to 46 in which page No. 1 to 44 have been return and showing opening balance in the  said  stock  register  dated 27.01.1991 1500 liters  and  showing  received  200  liters  on 27.01.1991  and  1000  (one  thousand)  liters  on 28.01.1991.

3. One tin made stock board of K. Oil in the name of Sri  Harendra  Nath  Chakraborty,  nothing  was written.

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4. One cash memo book in the name of Sri Harendra Nath  Chakraborty  for  K.Oil  commencing  from memo No.1 to 1000 in which memo 1 to 477 have been written.

5. Two  barrels  of  Kerosene  Oil  200  liter  in  each barrel.

6. 50 (fifty) liters of Kerosene oil found in an open small drum.  

7. One polythene pipe measuring 7’ feet.

8. One tin made measuring pot for 1 liter.

9. One tin made measuring pot for ½ liter.

10. One tin made funnel.

9. Two  independent  witnesses,  namely,  (i)  Ashok  Kumar  Mullick

(P.W.1) and (ii) Sk. Kashem (P.W.2) who were examined before the Court

and proved the seizure of articles during the said raid, were declared hostile.

Ravindra Nath Mondal (P.W.6), Investigating Officer, however, examined

himself.   

All  the  documents  as  also  the  material  objects  which  were  seized

were duly approved.   

10. The  learned  Trial  Judge  formulated  the  following  points  for  his

consideration:

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“1. Whether  the  accused  can  be  indicted  for non-display  of  stock  and  price  list  as required  under  para  3(2)  of  W.B. Declaration  of  Stocks  and  Prices  of  E.C. Order, 1977.

2. Whether  the  accused  has  failed  to  comply with the terms and conditions of the licence for dealing in kerosene oil.”

On  point  No.  1,  it  was  held  that  the  stock  of  kerosene  was  not

displayed on the display board.  Thus, the condition No. 6 of the licence

issued to him under the 1968 Order was found to have been violated.  The

learned Judge held:

“Onus, thus, shifts upon the accused to discharge the  burden  lying  upon  him regarding  display  of stock and price board as required under para 3(2) of the Order.  He failed to  do so.   Inference,  as such,  can  rightly  be  drawn  against  him  under Section  114(g)  of  the  Evidence  Act  and  to conclude that the material Ext. III is nothing but the stock and rate board intended to be displayed by the accused as required under para 3(2) of the Order.   On  scrutiny  of  the  said  board,  as  the indication of the opening being found conspicuous by its absence stock of kerosene oil as well as its wholesale or retail price on the relevant date, I am of the view that the allegation against the accused that he has violated the provision of para 3(2) of the Order is well founded.”

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So far as point No. 2 is concerned, the learned trial Judge opined:

“It  is  worthwhile  to  see,  therefore,  how  far  the prosecution has succeeded to bring home the said charge  against  the  accused  beyond  reasonable doubt.  Material  Ext.  II  is  the  so-called  stock register  produced  and  identified  by  I.O.  (PW.6) before the court in the absence of non-examination of the  defacto complaint.   On a look at  the  said document  it  appears  that  the  opening  stock  of kerosene  oil  in  col.  No.  2  remained  blank  nor anything  was  mentioned  in  column  No.6  on 27.01.1991 as to the actual sale of kerosene oil nor column No. 7 indicated shortage of said kerosene oil nor anything was pointed out in column No. 8 as to the balance of kerosene oil, which should be drawn  as  opening  balance  on  28.01.1991. Inference,  as  such,  can  be  drawn  against  the accused for non-maintenance of the stock register as  required  by  a  licensee.   It  is  not  unlikely  to mention in this connection that PWs 1 and 2 said to  be  the  witnesses  to  seizure  though  declared hostile  vouched for  the stock  of  kerosene  oil  as 502 ltrs. of kerosene oil at the shop of the accused on the relevant date and thereby lends support to the  case  of  the  prosecution  regarding  opening balance of kerosene oil  after  taking into account the  sale  transaction  on  27.01.1991  as  502  ltrs. According  to  the  prosecution,  accused  received 1000 ltrs. of kerosene oil from his distributor on 28.01.1991. This fact is borne out from the entry made  in  column  No.  4  of  Daily  Stock  Register (Mat. Ext. II) and thereby belies the statement of P.W. 5 (who was rightly declared as hostile) that only 400 ltrs. of kerosene oil was received during business hours.  Consequently, taking into account this  1000 ltrs.  of  kerosene oil  together  with  502 ltrs.  of  kerosene  oil  as  opening  balance  on

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28.01.1991 at the shop of the accused, the figure comes to  1502 ltrs.   True  of  course,  there  is  no ocular testimony from the side of the prosecution barring production of cash memo regarding sale of any  kerosene  oil  by  the  accused  on  28.01.1991 P.W.  6  (I.O.)  having  admitted  that  he  did  not verify  the  cash  memo  book  for  the  purpose  of ascertaining  the  sale  transaction  on  27.01.1991 and 28.01.1991,  the  court  is  left  with  no  cogent material  to  subscribe  to  the  view  of  the prosecution regarding sale of kerosene oil of 257 ltrs. of kerosene oil by the accused on 28.01.1991 and  in  that  view of  the  matter,  it  is  difficult  to conceive that the physical stock of kerosene oil at the  shop  of  the  accused  having  taken  into  the aforesaid sale transaction would be 795 ltrs.   As opposed  450  ltrs.  found  on  measurement.   Or, more  precisely,  in  the  absence  of  any  legal unimpeachable  evidence  as  to  the  expected physical stock of kerosene oil  at  the shop of the accused on 28.01.1991 having taken into account the sale transaction it is difficult to see eye to eye with  the  version  of  the  prosecution  that  the physical  stock  of  kerosene  oil  was  not  in consonance with the expected stock.  But, the fact remains as has been already pointed out  that  the accused  did  not  maintain  the  stock  register showing the opening balance and the consequence sale  from the  said  quantity  to  the  consumers  in breach of the mandatory provision of para 12 of the order and in that view of the matter, he comes under  the  mischief  of  the  provision  of  the  said para.”

It  was,  however,  held  that  having  regard  to  the  fact  that  the

Investigating Officer did not  verify the cash memos, the charges brought

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against the appellant that the actual quantity of kerosene was found to be

short  by  795  liters  was  not  proved.   On  the  aforementioned  findings,  a

judgment  of  conviction  and  sentence  as  indicated  hereinbefore  was

recorded.

11. An  appeal  preferred  by  the  appellant  before  the  High  Court  was

admitted  only on  the  question  of  sentence.   Presumably,  with  a  view to

satisfy  itself  as  to  whether  a  case  has  been  made  out  for  invoking  the

proviso appended to Section 7(1)(a)(ii) of the Act, the High Court also went

into  the  matter  and  ultimately  reduced  the  quantum  of  sentence  in  the

manner as noticed hereinbefore.  

12. Mr. Rauf Rahim, learned counsel appearing on behalf of appellant in

support of this appeal would raise the following contentions:

i. As P.Ws. 1 and 2 who were examined as independent

witnesses  in  their  depositions  categorically  stated  that

the stock of the kerosene oil was written on the display

board,  the  learned  trial  judge  as  also  the  High  Court

committed  a  serious  error  of  law  in  opining  that

appellant had contravened condition No. 6 of the licence.

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ii. That the prosecution case that the stock register did not

contain any entry in respect of 502 liters of kerosene oil

having not been put to appellant while he was examined

under Section 313 of the  Code of  Criminal  Procedure,

the  judgment  of  conviction  recorded  for  non-

maintenance  of  the  stock  register  must  be  held  to  be

erroneous.   

iii. The  complainant  as  also  S.I.  N.K.  Sikder  who

accompanied  him  having  not  been  examined,  the

prosecution cannot be said to have proved its case.  

13. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the

respondent, on the other hand, would support the impugned judgment.  

14. The  prosecution  case  as  against  appellant  discloses  three  distinct

offences.   The opening balance of  kerosene oil  as  on 28.1.1991 was not

mentioned in the stock register.  Admittedly, appellant received 1000 liters

of kerosene oil from the distributor on the same day.  However, on physical

verification the total stock of kerosene oil was found as 450 liters only.  On

that  date,  kerosene  oil  to  the  extent  of  257  liters  had  been  sold.   Thus,

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although the total stock of kerosene oil should have been 1502 liters but as

only 450 liters were found, there is a shortage of 795 liters of kerosene oil.  

15. The learned Special Judge, as noticed hereinbefore, although found

that having regard to the fact that Investigating Officer did not verify the

cash  memo book  for  the  purpose  of  ascertaining  the  sale  transaction  on

27.1.1991 and 28.1.1991, the  prosecution  case  that  the  physical  stock  of

kerosene did not tally with the expected stock has not been proved.   

16. As no appeal was preferred by the State against the said finding, the

same must be held to have attained finality.  The fact, however, remains and

as noticed by the learned Special Judge as also by the High Court the entire

prosecution case was based on documentary evidence as also the material

objects, which had been seized.  The seizure witnesses, namely, P.Ws. 1 and

2 might have been declared hostile, but the seizure memos had duly been

proved.  The seized documents  had also been proved.   Appellant  having

been maintaining the said documents, when discrepancies occurring therein

were pointed out to him it was for him to explain the same.  

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17. Appellant did not adduce any evidence in defence.  It has not been

denied or disputed that the seized kerosene oil had been put in the custody

of  Tapan  Chakraborty,  son  of  the  appellant.  He  was  examined  as  a

prosecution witness as P.W. 5.  Appellant also accepted the said fact.  Thus,

the amount of kerosene which had been seized and kept in the custody of

his son has not been denied or disputed.  The fact that only 450 liters of

kerosene oil was found in the shop has, thus, been proved.

18. Submission of Mr. Rauf Rahim that the learned Special Judge should

have specifically put the prosecution case to appellant under Section 313 of

the Code of Criminal Procedure that the stock register did not contain any

entry  of  502  liters,  in  our  opinion,  does  not  appear  to  be  correct.   The

prosecution case based on the basic primary material which the prosecution

had brought on record, namely, raid in the shop, the stock of kerosene oil

found, the seizure of the display board, stock register, cash memo, etc., had

been put to him.  Apart from making a bald denial that measurement had not

been  taken  or  that  no  measurement  chart  had  been  prepared  he  had  not

explained the discrepancies in the stock or non-display thereof.   

We may notice the question Nos. 6, 7 and 8 in this behalf:

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“Q-6: It appears further from the statement made by the PW-4 that having examined the oil in stock  the  register  and  the  stock  register  it was found that  there was a discrepancy of 794 (sic) liters of kerosene oil and for that the officer-in-charge seized the kerosene oil found in  the shop along with the  registers stock  and  rate  bound  etc.,  and  prepared  a seizure list  (Ext. 1/4).  What do you say in this regard?

Ans.: This is not true, I am innocent.

Q-7: It appears further from the statement made by  the  PW  Nos.  3  and  4  that  the  seized kerosene  oil  was  put  in  the  custody  of Tapan  Chakraborty,  your  son  (PW-5)  by way of a Zimmanama.  What do you say in this regard?

Ans. Yes, kept.

Q-8. Having taken the charge to investigate this case the PW-6 perused(?) the said registers and  identified  the  said  cash  memo  book, stock register  and stock board respectively as  the  Mat.  Ext.  Nos.  I,  II  and  III  in  the Court.  What do you say in this regard?

Ans: Everything is in order, Sir.  The stock board has not been brought.”

As all  the material  evidences brought on record by the prosecution

had been brought to his notice.  It has not been shown before us as to how

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he was prejudiced, particularly when his son was examined as a witness. He

could have given his side of the story which, according to him, could have

proved his defence, on the basis of material brought on record.

Submission of Mr. Rauf Rahim that the judgment of conviction and

sentence stands vitiated by reason of non-compliance of the provisions of

Section 313 of the Code of Criminal Procedure, thus, cannot be accepted.   

In State of Punjab vs. Swaran Singh [(2005) 6 SCC 101], this Court

was dealing with a matter under NDPS Act.  Therein, only general questions

were put to the accused.  Elaborating the purpose for which an accused is

required to be examined under Section 313 of the Code, it was stated:

“Apart  from  all  these,  as  part  of  fair  trial  the accused  is  given  opportunity  to  give  his explanation regarding the evidence adduced by the prosecution.  However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused.  If there were circumstances  in the evidence which are adverse to the accused and his explanation would help the court  in  evaluating  the  evidence  properly,  the court  should bring the same to the notice  of  the accused to enable him to give any explanation or answers  for  such  adverse  circumstance  in  the evidence.   Generally,  composite  questions  shall not  be  asked  to  the  accused  bundling  so  many facts  together.   Questions  must  be such that  any reasonable  person in  the position  of  the  accused may be in a position to give rational explanation to

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the questions as had been asked.  There shall not be failure of justice on account of an unfair trial.”

19. Keeping  in  view the  facts  and  circumstances  of  this  case  and  the

nature of allegations made against appellant, we are of the opinion that no

failure of justice has occasioned nor the trial was in any way unfair.  

20. Reliance has also been placed by Mr. Rauf Rahim on Vikramjit Singh

Alias Vicky  vs.  State of Punjab [(2006) 12 SCC 306], wherein this Court

while dealing with a case under Section 302 of the Indian Penal Code totally

based on circumstantial evidence, this Court held:

“It is now a well-settled principle of law that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be  put  to  him in  his  examination  under  Section 313 of the Code of Criminal Procedure.”   

21. The prosecution case is  purely based on the documentary evidence

maintained by the accused himself.  In our opinion,  a case of this nature

where the prosecution intends to bring home the charges on the basis of the

documentary evidence maintained by the accused himself cannot be equated

with a case where the accused is charged with commission of an offence,

the proof whereof is based on circumstantial evidence alone.   

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22. Furthermore, as the appeal preferred by the appellant was admitted by

the High Court only on the question of sentence, neither the High Court nor

this Court was required to go into the merit of the matter.  We have done so

inter alia on the ground that the High Court has also entered into the merit

thereof.   That part of the order of the High Court whereby a limited notice

was  issued  is  not  in  question.   The  High  Court  having  taken  into

consideration  the  entire  facts  and circumstances  of  this  case reduced the

period of imprisonment from six months to three months.   

Mr. Rauf Rahim would contend that  we should invoke the proviso

appended to Section 7(1)(a)(ii) of the Act.  

The said provision can be invoked provided the Court is in a position

to assign special reasons therefor.  Such a case, in our opinion, has not been

made out.  Appellant is found to have contravened both the 1968 Order as

also the 1977 Order.   

23. Our  attention  has  been  drawn  to  a  decision  of  this  Court  in

Harivallabha & Anr. vs. State of M.P. [(2005) 10 SCC 330].  No reason has

been assigned therein.  What were the special facts and circumstances of

their  case  which  persuaded  their  Lordships  to  invoke  the  provisions  of

Section 360 of the Code had not been stated.   

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24. In the facts and circumstances of the case, we are of the opinion that

no case has been made out to invoke the proviso appended to Section 7(1)

(a)(ii) of the Act particularly in view of the fact that appellant was found to

have violated the provisions of both the Orders.   

Appellant was dealing with an essential commodity like kerosene.   

If  the  Parliament  has  provided  for  a  minimum sentence,  the  same

should ordinarily be imposed save and except some exceptional cases which

may justify invocation of the proviso appended thereto.  

25. In India, we do not have any statutory sentencing policy as has been

noticed by this Court in  State of Punjab  vs.  Prem Sagar & Ors.  [2008 (9)

SCALE 590].  Ordinarily, the legislative sentencing policy as laid in some

special  Acts  where  the  Parliamentary  intent  has  been  expressed  in

unequivocal terms should be applied.  Sentence of less than the minimum

period prescribed by the Parliament  may be imposed only in  exceptional

cases. No such case has been made out herein.   

26. For the reasons aforementioned, the appeal is dismissed.  Appellant

shall  surrender  before  the  learned  Special  Judge  for  serving  out  the

remaining sentence.   

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……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 19, 2008

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