Calcutta HC Sets Aside 33 Yrs Old Conviction Under Essential Commodities Act, Says No Mens Rea In Omitting License Number From Shop’s Cash Memo

The Calcutta High Court recently acquitted an individual who, in 1990, was found guilty by the trial court under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (“EC Act”) for violation of the WB Cloth and Yarn Order 1960, and sentenced to undergo imprisonment for one month along with fine.

In holding that the trial judge had erred in appreciating the guidelines framed by the Enforcement authorities under the EC Act, while convicting the appellant, a single bench of Justice Subhendu Samanta held:

Only by not mentioning the licence No. in the Sign board or in the cash memo does not constitute any mens rea on behalf of the appellant. Department guidelines indicate that if any person during the course of normal transaction forgets to mention either the licence number or the date on the bill or memo, such type of mistake and omission is not obligatory upon the directorate to launch a prosecution. In this case Learned Special Judge has failed to appreciate guidelines of the said department and passed the erroneous order.

The prosecution case was that in 1988, when PW1 visited the cloth store of the accused for an inspection, he served a notice upon the appellant upon finding that cash memos in the shop were written up without license number. Later on further inspection, it was also revealed that the shop’s signboard did not have the license number mentioned as well.

PW1 accordingly seized the cash memo, signboard and a mill saree and the accused was arrested and taken to the local police station.

Upon completing the investigation, the police chargesheeted the appellant under relevant Sections of the EC Act, and trial commenced before a special judge.

On hearing the evidence and witnesses, the special judge found the appellant guilty and passed an order of conviction against him.

Appellant’s counsel submitted that the conviction of the appellant was not permissible in the eyes of law.

It was argued that the offences charged against the appellant had not been proven beyond reasonable doubt, and that the special judge had failed to appreciate the guidelines of the Enforcement Authorities of the relevant department regarding chances of malicious prosecution.

Counsel submitted that the appellant had a valid license and that only non-mentioning of the license number on the cash memo did not constitute any offence.

It was further argued that the prosecution had not provided any explanation for why the PW1 had inspected the appellant’s shop, which was beyond his territorial jurisdiction without any order from the Director/Deputy Commissioner.

It was argued that the prosecution was mala fide and hence the appellant must be acquitted.

State counsel on the other hand, argued that the special judge had observed the probative value of evidence laid before him.

It was submitted that the seizure had been sufficiently proved by independent witnesses and that the statutory violations had been sufficiently proved. It was thus argued that the order of the special judge suffered from no illegality.

On hearing both parties, the Court looked at the order of conviction passed by the special judge. It was noted that while PW1 had inspected the shop of the appellant, during cross-examination he had admitted that the shop was beyond his territorial jurisdiction.

Further the Court noted that the FIR mentioned the presence of a DEB inspector, but this inspector’s signature had not been recorded on any document. It was also noted that no members of the raiding party had deposed before the special judge regarding the fact of the inspection/raid.

The Court perused through Order 16 of the West Bengal Cotton Cloth and Yarn Control Order 1960, and noted that it directed officers to inspect any premises on the basis of special or general orders passed by a Superintendent, Director or Deputy Commissioner, none of which had been done in the present case.

In this case it appears that the P W 1 has inspected shop room of appellant which lies beyond his territorial jurisdiction and admittedly PW 1 had no written authorisation or order to inspect the premises, it was held.

The Court held that the special judge’s observations that the aforesaid discrepancies cannot invalidate a criminal investigation were not justified and that the prosecution was not able to explain why the PW1 had suddenly inspected the shop of the appellant without any apparent information or order from a superior.

In conclusion, the Court observed that on merits, to constitute a criminal offence, mens rea would be the most important ingredient.

It was held that in the present case, there was no mens rea on part of the appellant by merely omitting to mention his shop’s license number on the sign board or cash memo, and even the Department guidelines which discouraged such prosecutions were ignored by the special judge.

Hence the appeal was allowed, and the conviction and sentence were set aside.

Citation: 2023 LiveLaw (Cal) 332

Case: Amzed Ali Vs. State of West Bengal

Case No: CRR 154 of 1990

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