Joymalya Bagchi, J.@mdashThe appeal is directed against the judgment and order dated 09.01.1986 passed by the learned Judge, Special Court, E.C. Act of Alipore, convicting the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for three months more with a direction that 50% of the fine, if realised, be paid to P.W. 5, Sudhir Malakar by way of compensation.
2. Prosecution case, as alleged, against the appellant is as follows:-
The appellant is the proprietor of M/s. Eastern Trade Enterprises (ETE for short) which was a transport-cum-handling and storing agent of levy cement under West Bengal Essential Commodities Supply Corporation Ltd. (Corporation for short) having its godown at Bornefild Row, Kolkata-700027 within P.S. Ekbalpur.
3. One Sudhir Malakar, (PW 5) applied before the Corporation for issuance of levy cement for the purpose of constructing his house at 64/1 Pallisri, Maharani Indira Debi Road, Kolkata-700060. Corporation issued a delivery order to the tune of 10 MT levy cement in his favour. Such delivery was to be taken from the godown of ETE, the agent of the Corporation, against the payment of Rs. 9291.85 as price of the said cement. Such amount was paid by PW 5 to the Corporation and 10 MT of levy cement was delivered in 200 bags from the godown of ETE to PW 5 on 29.11.1983. PW 5 commenced construction work by using such cement. While construction was in progress it was noticed that concrete on the mortar was not drying up and the RC columns of the construction gave way on being pressed with thumb within a week of its casting. Accordingly, suspicion arose as to the quality of the cement taken delivery from the godown of ETE and PW 5 suspended the construction work. He lodged complaint with the Corporation with regard to quality of the cement. 122 bags of cement were remaining unused at that time.
4. On the basis of such complaint, the Corporation took samples of cement from some of the unused bags on 25.01.1984. Sample was sent to Director General, National Test House, Alipore on 23.02.1984 and on analysis of the cement National Test House opined that the same was not of prescribed substandard.
5. Corporation lodged complaint with the Officer-in-Charge, Ekbalpur Police Station against the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3 of Cement Quality Control Order, 1962. During investigation, 122 bags of cement were seized from PW 5. In conclusion of investigation, charge sheet was filed under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3 of the Cement Quality Control Order, 1962 against the appellant.
6. Substance of accusation was read out and explained to appellant. The appellant pleaded not guilty and claimed to be tried.
7. In the course of trial, the prosecution examined as many as 11 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, trial Court by judgment and order dated 09.01.1986 convicted the appellant for commission of offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for three months more with a direction that 50% of the fine, if realised, be paid to P.W. 5, Sudhir Malakar by way of compensation. Hence, the present appeal.
8. Mr. Ranadeb Sengupta, learned advocate appearing for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. He submitted that the alleged sample was drawn behind the back of the appellant. There is no evidence on record as to the manner in which it was preserved prior to its despatch for examination at the National Test House. There is also inordinate delay in sending sample for examination. He submitted that there is evidence on record that PW 5 had obtained cement from other sources also to complete his construction. He further submitted that there was no identification marks on the cement bags seized from the possession of PW 5 to establish that they were supplied from the end of the appellant''s firm. Accordingly, he submitted that the conviction and sentence imposed upon the appellant be set aside.
9. Mr. Banerjee, learned Additional Public Prosecutor appearing for the State submitted that there is evidence on record that levy cement sanctioned in favour of PW 5 was supplied by the firm of the appellant. There is no legal necessity to draw sample in the presence of the appellant. The evidence on record is clear that the sample was drawn from the bags of cement supplied by the appellant. There is nothing to show that there is any tampering or any substitution of the sample drawn. Report of National Test House proved that the cement was of sub-standard quality. Accordingly, conviction and sentence of the appellant is liable to be upheld.
10. PW 1, Matilal Roy, is a neighbour of PW 5 Sudhir Malakar. He deposed that police seized 122 bags of cement from the house of Sudhir Malakar, PW 5. He has proved his signature on the seizure list.
11. PW 2, Pravu Mahato, is a labourer by profession. He worked as a labourer to the mason constructing the house of PW 5 at Pallishri, Behala. While doing construction work, he noticed that the mortar was coming out and the cement was not drying up even after expiry of 5/6 days. He brought the same to the notice of PW 5. Owing to such reason, the pillar of the staircase had to be demolished and construction work stopped. User of the previous cement was stopped and construction was finished with the cement taken from other sources. 122 bags of cement were kept unused.
12. In cross-examination, he stated that the defect regarding quality of cement came to his notice about two months after starting work in the house.
13. PW 3, Brahmadeo Mahato, is a mason by profession. He worked in such capacity for the construction of the house of PW 5. He deposed that after the foundation casting of the house was made he starting raising wall. He noticed that the mortar used in the casting had not dried up. Suspicion arose in his mind as to the quality of cement used. He brought it to the notice of PW 5. Thereafter two RC pillars were cast by him and after expiry of 5/6 days he noticed that the casting was coming off. RC pillars automatically crumbled. Sudhir Babu asked him to stop work. Further construction was started by means of new cement collected from other sources and construction was completed. While handling the old cement bags he noticed that the cement bags were stitched by hand by means of jute string or cotton thread.
14. In cross-examination, he stated that he did not tell IO that the cement bags were stitched with jute string and cotton thread.
15. PW 4, Arup Roy, is a office colleague of Sudhir Malakar, PW 5. He is a LCE. He supervised the construction of Sudhir Babu''s house. Construction work bagan in November, 1983. On 28.12.1983 foundation of two RC columns on which the staircase and entire load of the roof were to rest were cast. Construction work was completed upto lintel level. Casting of one of the pillars was done upto 6 feet on 30.12.1983. On 04.01.1984 he went to the house of Malakar and noticed that the mortar of the RC columns was coming off by application of force. He was of the opinion that the cement was not upto the mark and advised Malakar to stop using the cement.
16. In cross-examination, he stated that he was employed at Guestken William. He did not have any document to prove that he is a Civil Engineer. He was posted as Assistant Superintendent in the department of services. On 04.01.1984 he did not think it necessary to lodge complaint at local police station about the quality of cement.
17. PW 5, Sudhir Malakar, is the principal witness of the case. He applied to Sub-divisional Controller of Food and Supply, Alipore for 17 tons of cement for the purpose of construction of his house. Order was issued by Corporation authorising him to take delivery of 10 tons of cement from ETE on 29.11.1983. After depositing the price of such cement he took delivery of the cement on 29.11.1983 and construction work began on 04.01.1984. His suspicion arose when his neighbour Matilal Roy, PW 1, Arup Roy, PW 4 were of the opinion that the cement was sub-standard upon examining the mortar at the site. PW 3 was the mason engaged for construction work. He was unwilling to accept the view of his neighbours as he had obtained the cement from a good dealer. His suspicion about the quality of cement crystallized on 28.12.1983. It was within a month from the date of delivery of cement. Pillars under construction were already cast upto the height of 4/6 feet. Casting was made on 2/3 days ago. PW 2, Pravu Mahato found that the mortar was coming out when he removed the planks from the pillars. He stated that Pravu Mahato made such discovery on 03.01.1984. He lodged complaint with Corporation on 05.01.1984 being Exhibit 5. Following his complaint two Inspectors and one Peon of Corporation came to his house on 25.01.1984 and took samples from 4/5 cements bags. Out of 200 bags lifted from ETE 78 bags were utilised and 122 bags remained intact and samples were taken from 4/5 bags out of 122 bags. A memorandum was prepared for that purpose. He signed on the memorandum (Exhibit 6/1). Subsequently police seized those 122 bags from his possession and kept the same in his Zimba. He produced various documents to the police during the investigation.
18. PW 6, Palash Choudhury, is Junior Assistant Manager (Storage and Division) of Corporation. In November, 1983 he was posted at Kalighat Railway siding with regard to the delivery of government quota of Levy cement. ETE was the handling-cum-storing agent of the Corporation. The appellant, according to hearsay, is the proprietor of the Corporation. He identified the appellant as the proprietor. He was in-charge of delivery of cement on behalf of the Corporation from the Kalighat Railway siding and the agent''s godown. The handling-cum-storing agent is the custodian of the godown. The godown was not required to be opened or closed in the presence of the staff of the Corporation. He proved the challan issued by ETE on 29.11.1983 in favour of Sudhir Malakar on delivery of 200 bags of cement countersigned by Corporation''s staff, Niloy Majumder. The challan was written by the staff of ETE (Exhibit 4). He deposed that before delivery, order produced by the customer is verified by the staff of the Corporation at the site of the railway siding or the godown with reference to the internal copy of the Corporation. On receipt of price of cement by bank draft, from the customer, receipt is issued from the office of the Corporation to the customer. He stated that the cement was delivery against delivery order on 29.11.1983 under his supervision. He has proved the letter of complaint lodged by the Corporation to Officer-in-Charge, Ekbalpur Police Station (Exhibit 9).
19. In cross-examination, he stated that complaint book was maintained in the godown for any person to lodge complaint about the quality, quantity, nature and character of cement bags at the time of delivery. No such complaint was lodged by Sudhir Malakar.
20. PW 7, Swapan Kumar Basu, is a Commercial Inspector of the Corporation. On 25.01.1984 he along with Tapas Kumar Saha, another Commercial Inspector (PW 9) had been to the house of the PW 5, Sudhir Malakar for enquiry following a complaint to the effect that adulterated cement was delivered to him by Corporation''s agent, ETE. Before the visit to the house of the complainant, agent of ETE were apprised by official correspondence. He produced the copy of the letter which was forwarded to him under the signature of Deputy Chief Manager, Mr. Pal (Exhibit 10). On arrival at the site samples were collected by him as well as his colleague out of a number of bags. Samples were drawn from 6/7 bags and were mixed in a tin can which was taken from the office for this purpose. The tin can was sealed and labelled of the site in the presence of Sudhir Malakar and a memorandum was prepared by Tapas Saha (Exhibit 6). Sudhir Babu signed it. He also signed it. Label was prepared by Mr. Saha. The sealed container was deposited with Deputy Commercial Manager, Mr. Pal and subsequently sent to Director General, National Test House for physical and chemical test under office memo dated 23.02.1984 signed by Mr. Pal (Exhibit 11). On receiving samples on that day i.e. 23.02.1984 endorsement under official seal was given on the office copy of the memo on behalf of National Test House (Exhibit 11/1). From the office of the Director General, National Test House, test report was received in official course which was marked as Exhibit 12.
21. In cross-examination, he admitted that in the office communication (Exhibit 10) date of drawal of sample was notified on 17.01.1984. By Exhibit 10 ETE was asked to contact him on 17.01.1984. He admitted that there was overwriting in the memorandum (Exhibit 6). Memorandum does not contain the signature of Deputy General Manager. No receipt was issued by Deputy General Manager on receiving the samples.
22. PW 8, Sk. Wahed Ali, used to go the house of PW 5 with the head mason for construction work. He witnessed the seizure of 122 bags of cement by the police and had signed on the seizure list.
23. PW 9, Tapas Saha, is another Commercial Inspector of the Corporation who was present when samples were drawn from the cement bags in the house of PW 5. He stated that sample was taken in two tin boxes in the presence of the owner. He stated that more than one memorandum was prepared by him by carbon process for affixing them on the tin boxes and preserving a copy for the office. He identified Exhibit 6 as one of such copies. He stated that no one from the side of the agent was present at the time of taken of samples.
24. PW 10, Niloy Majumder, is a Commercial Inspector of WBCS Corporation. He proved his signature on the delivery challan (Exhibit 4) endorsing delivery of cement bags from the godown of ETE to PW 5.
25. In cross-examination he admitted that no complaint was lodged in the complaint register maintained by the Corporation staff at the time of taking delivery of the cement with regard to its quality, quantity, nature and character of the bags.
26. PW 11, Ganesh Chandra Saha, is the Investigating Officer of the case. He identified the first information report (Exhibit 9). He deposed that on 24.08.1984 he seized 122 bags of cement from the house of PW 5 upon preparation of seizure list (Exhibit 1). Thereafter he kept the cement bags in the Zimba of PW 5 (Exhibit 7). He received report issued by National Test House with regard to the quality of the samples of cement and filed charge sheet.
27. It appears from the evidence on record that PW 5 had obtained delivery of 10 MT of levy cement in 200 bags from the godown of ETE, handling-cum-storing agent of the Corporation for making construction of his house at Pallisri, Behala. Evidence on record shows that in the course of construction, PW 5 entertained suspicion as to the quality of cement supplied to him as the cement used for constructing the RC pillars was not drying up and was coming out upon use of little force. It is the evidence of PW 2 that they noticed the defect in the quality of cement about two months after commencing work on the house. PW 5 however stated that the construction work began on 04.01.1984 and his doubt as to the quality of cement crystallized on 28.12.1983, a month after the commencement of construction. There is some confusion in the evidence of the witnesses as to when the construction on the house commenced and the date on which PW 5 came to a firm conclusion that the quality of cement supplied to him was sub-standard. It however appears that he lodged complaint with the Corporation with regard to the sub-standard quality of cement supplied to him on 05.01.1984 (Exhibit 5).
28. It is the prosecution''s case that pursuant to such complaint, inquiry was made at the residence of PW 5 on 25.01.1984 by PW 7 and PW 9. It is the evidence of PW 7 and 9 that the samples were drawn from some of the bags of cement kept in the house of the appellant and such samples were put in a tin box which was sealed and labelled at the spot. The tin bore was deposited with Mr. Pal, Deputy Chief Manager and despatched to National Test House for testing under cover of office memo dated 23.02.1984. Report of the National Test House was to the effect that the sample of cement was sub-standard.
29. It has been emphatically argued that the samples were illegally drawn behind the back of the appellant without serving any notice to him. It appears that a letter dated 09.01.1984 written by Deputy Commercial Manager, Mr. Pal to PW 5 (Exhibit 10) was forwarded to PW 7 on the basis of the latter claimed that representative of ETE had been apprised of the joint inspection. In cross-examination he admitted that the date of joint inspection in the said notice (Exhibit 10) was 17.01.1983. He further stated that Eastern Trade Enterprises was asked to contact him on 17.01.1984. On the other hand, inspection was held on 25.01.1984. There is no evidence on record that Exhibit 10 was served upon the representative of ETE. That apart, inspection was actually held on 25.01.1984 and there is absolutely nothing on record that the date of such inspection was notified to ETE. Hence, there is no escape from the conclusion that samples were drawn from cement bags in the residence of PW 5 without intimation to ETE and behind its back.
30. Mr. Banerjee, strenuously argued that there is nothing in law that notice had to be given to the appellant or the representative of the agent for drawing samples of cement bags in the possession of PW 5. He further argued that as cement was a regulated commodity there is ample evidence that the bags in the possession of the appellant were those supplied by the appellant.
31. I am unable to accept such contention of Mr. Banerjee.
32. Firstly, Exhibit 10 shows that it was the intention of the Corporation to hold joint inspection at the residence of PW 5 pursuant to the latter''s complaint. However, for reasons best known to the Corporation, such prudent course was abandoned and no effect was made to inform ETE, the agent, of the date of actual inspection, that is, 25.01.1984. As the samples were being drawn from commodities which were admittedly not in the possession of the appellant or his firm and were intended to tested to the latter''s prejudice, it was incumbent upon the Corporation as a facet of fair and just procedure to undertake such exercise upon due notice to the appellant. Failure to do so, renders to the procedure arbitrary and casts a brooding shadow on the authenticity of the evidence so collected.
33. There is also confusion as to the manner in which the samples in the instant case were drawn, preserved and despatched for testing. There was no identification of marks on the bags from where the cement was drawn in the instant case. The bags seized in the course of investigation and also did not bear any identification mark so as to connect them with those supplied by the appellant.
34. On the other hand, there is evidence on record from PW 2 and 3, that PW 5 procured cement from other sources to complete construction. Hence, it cannot be said with certainty the cement bags (which bore no identification marks) in the possession of PW 5 on the date of inspection were only those supplied by ETE and not from other sources.
35. While it is the evidence of PW 7 that samples of cement collected was kept in one tin box, PW 9 stated that the samples was kept in two tin boxes. There is no documentary evidence on record that the tin box containing the sample were delivered to Mr. Pal, Deputy Commercial Manager. Mr. Pal has not been examined in this case. No document showing receipt of custody of the tin box by him has exhibited. No direct evidence is forthcoming as to how the tin box was kept from the date of seizure, that is, 25.01.1984 and the date of despatch to National Test House, that is, 23.02.1984. There is a clear breach in the link evidence between the collection of sample at the residence of PW 5 on 25.01.1984 and its despatch to the National Test House on 23.02.1984 in the instant case. Prosecution has argued that some of the seized cement bags were stitched by hand give rise to suspicion that they may have been tampered by the appellant prior to delivery to PW 5 whereas the others were machine stitched. It is on record that there was a complaint register maintained at the godown of ETE where a purchaser could lodge complaint about the deficiency in the quality of cement or the nature of the bags. PW 5 did not lodge any complaint about the stitching in the bags at the earliest opportunity. After having taken delivery with demur, any alleged deficiency in the stitching of the bags cannot be attributed to the Corporation or its agent in any manner whatsoever.
36. For the aforesaid reasons, I am of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt. The conviction and the sentence imposed upon the appellant is liable to be set aside and he is acquitted of the charge levelled against him. The appellant shall be discharged from his bail bond after expiry of six months from date in terms of section 437A of the Code of Criminal Procedure.
37. Lower court records along with copy of judgment be sent down to the trial Court at once.
