Calcutta High Court (Appellete Side)
Majed Ali vs The State Of West Bengal on 24 June, 2025
2025:CHC-AS:1112
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 290 of 1999
Majed Ali
-Versus-
The State of West Bengal
For the Appellants : Mr. Atulya Sinha, Ld. Amicus Curiae
For the State : Ms. Faria Hossain, A.P.P.
Mr. Anand Keshari.
Hearing concluded on : 18.06.2025
Judgment On : 24.06.2025
Prasenjit Biswas, J:-
1.
The judgment and order dated 16.06.1999 passed by the learned Judge,
Special Court, (E.C. Act), Murshidabad, in connection with E.C. Case No.
10 of 1993, Sessions Trial No. 81/93 arising out of Bhagawangola P.S.
Case No. 21/93 dated 31.1.1993 is assailed in this appeal.
2. By passing the impugned judgment and order the Special Court found this
appellant guilty for commission of offence punishable under Section
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7(1)(a)(ii) of the E.C. Act for violation of Para 3 of the West Bengal
Lubricating Oil Licensing Order, 1967 and sentenced him to suffer simple
imprisonment for three months and to pay a fine of Rs. 500/-, in default to
suffer simple imprisonment for one month.
3. In short campus the case of the prosecution is that:
“On 30.01.1993 at about 16.05 hrs., the de-facto complainant had
been to Malibasa under P.S. Bhagwangola near the brick field of
Zilla Parishad of Berhampore, Jangipara Pucca Road and noticed
that one rickshaw van carrying 39 cartoons containing lubricating
oil was going from Berhampore to Bhagobangola. The de-facto
complainant intercepted the said rickshaw along with the person
who was driving the same in a suspicious manner and on checking
the cartoon several sealed tins of lubricating oil containing 5 litres
each was found. On demand the accused persons failed to produce
any valid challan or licence in support of carrying that lubricating
oil. On interrogation the accused stated that those sealed tins
containing lubricating oil were carried for business purpose at
Bhagawangola Bazar. Thus, the accused violated the provisions of
Para 3 of the West Bengal Lubricating Oil Licensing Order, 1967
and hence he is held for prosecution under Section 7(1)(a)(ii) of Act
X of 1955 for violating the provision of Para 3 of the West Bengal
Lubricating Oil Licensing Order, 1967. The said 39 sealed tins
containing lubricating oil was seized by the de-facto complainant by
preparing a seizure list in presence of the witnesses. Over the
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3complainant a case was lodged before the concerned police station
being Bhagawangola, P.S. Case No. 21 of 1993 dated 31.01.1993.
After completion of investigation charge-sheet was submitted by the
police personnel against these accused persons under Sections
7(1)(a)(ii) of Act X, 1955 for violation of Para 3 of the West Bengal
Lubricating Oil Licensing Order, 1967.”
4. In this case, three witnesses were examined by the side of the prosecution.
Neither any oral nor any documentary evidence was adduced by the side of
the defence.
5. Mr. Atulya Sinha, Ld. Amicus Curiae appeared on behalf of the appellant
said that there are apparent contradictions and omissions in the
statement of witnesses cited on behalf of the prosecution and as such, the
conclusion of guilt of this appellant as well as directing confiscation of the
seized goods to the State is bad in law. It is said by the learned Advocate
that the prosecution has been failed to prove recovery of the lubricating oil
from the accused persons and as such, conviction of the appellant based
on the findings as made in the impugned judgment and order by the
learned Trial Court is illegal and is liable to be interfered with. As per
submission of the learned Advocate there is no document in the record
from which it can be said that the seized articles were belonged to this
appellant and the learned Trial Court failed to appreciate the said fact. It is
assailed by the learned Advocate that the prosecution has led evidences of
witnesses contradicting to each other and it would not be prudent to arrive
at a conclusion of the guilt of the appellant on the basis of the said
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evidences on record. So, it is submitted by the learned Advocate that the
impugned judgment and order of conviction passed against this appellant
may be set aside.
6. Ms. Faria Hossain, learned Advocate for the State said that there is
nothing illegality or irregularity in the impugned judgment and order of
conviction for which the impugned judgment passed by the learned Trial
Court may be interfered with. It is said by the learned Advocate that PW1
and PW2 who are the independent witnesses to the seizure witnesses
stated that 39 cartoons containing lubricating oil was recovered from the
possession of this appellant and was seized by the de-facto complainant by
preparing seizure list in his presence and in presence of other witnesses.
The signatures of these witnesses in the seizure list are marked as Exhibit
1 and 1/1. It is further said by the learned Advocate that PW3 also
supported the contentions of the written complaint by stating that this
appellant on the relevant date and time was carrying 39 cartoons
containing lubricating oil by his rickshaw and was going to sell it at the
Bhagawangola Bazar. So, as per submission of the learned Advocate that
there is no doubt about the testimonies of the prosecution witnesses and
as such, the impugned judgment and order may be affirmed and the
appeal filed by this appellant convict may be rejected outright.
7. I have considered the rival submissions advanced by both the parties.
8. PW1, Abdul Bari one of the seizure witnesses stated that on the relevant
date and time he noticed one rickshaw van carrying cartoons containing
lubricating oil and the police officer opened the cartoons and found
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lubricating oil inside the cartoons. It is said by this witness that there were
39 cartoons of different companies and each cartoons contained five litre
of lubricating oil and on interrogation this appellant admitted before the
police officer that he would go to Bhagawangola to sell the lubricating oil
in different shops. This witness further said that on demand by the police
this appellant failed to produce any licence or cash memo or permit for
carrying and possessing the said lubricating oil. This PW1 said that the
police officer seized the oil under a seizure list in his presence and he put
his signature thereon.
9. PW2, Aminul Islam another witness to the seizure stated in the same line
of PW1 and said that there were 39 cartoons containing five litres in each
cartoons of different companies and the police officer opened the seal and
found lubricating oil inside the said cartoons. Same as PW1, this PW2
being another independent witness said that this appellant told the police
officer that he would sell the oil to different shops at Bhagawangola and
the accused could not produce any licence or permit for carrying and
possessing the said oil. This PW2 said that the police officer seized the oil
under the seizure list in his presence and in presence of other witnesses.
This PW2 identified his signature on the seizure list which is marked as
exhibit 1/2 in this case. So, these witnesses being PW1 and PW2 in their
evidences supported the contentions of the written complaint that this
appellant was carrying 39 cartoons containing lubricating oil illegally to
sell it at Bhagawangola Bazar and the appellant failed to produce any
document for carrying the said lubricating oil in his rickshaw van. These
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two witnesses proved the factum of seizure of the police and identified
their signatures as witnesses to it. There is nothing in this cross-
examination for which the testimonies of these two witnesses can be
discarded.
10. PW3, Pallav Bhattacharjee, S.I. of Police stated that he lodged the written
complaint and after completion of investigation submitted charge-sheet.
This PW3 stated that on the relevant point of time when the alleged
incident happened he had been to Malibasa, under P.S. Bhagawangola at
16.05 hrs. and seized cartoons containing lubricating oil from the
possession of this appellant when this appellant was carrying the said
cartoons with intention to sell the same at Bhagawangola Bazar. This
witness stated that he seized 39 tins in total containing 195 litres packed
in six cartoons from the rickshaw van of this appellant. This PW3 said that
on interrogation this appellant failed to produce any licence/permit/cash
memo for carrying and possessing the said lubricating oil and thereafter,
he seized the materials under preparation of seizure list and in presence of
PW1 and PW2. The said seizure list is marked as exhibit 1/3 in this case.
The evidences of PWs 1 and 2 have been corroborated by this witness. It is
said by this witness that the appellant failed to produce any valid
document for carrying the lubricating oil.
11. So, after scanning of the evidences of PW1 and PW2 who are the
independent witnesses to the seizure and PW3 it has come out that the
lubricating oil was recovered from the custody of this appellant and he
failed to produce any documents before the seizing officer. On cross-
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examination of these witnesses by the defence nothing has been elicited
for which the story of the prosecution can be disbelieved. In the instant
case, PWs 1, 2 and 3 clearly stated that the lubricating oil was recovered
from the conscious possession of the appellant when he was carrying the
same in his rickshaw and was proceeding towards Bhagawangola for the
purpose of selling of it.
12. The provision of Para 3 of the West Bengal Lubricating Oil Licensing
Order, 1967 is quoted in the impugned judgment by the Trial Court. I am
reiterating the said provision for the purpose of better understanding of
the same. The said provision entails that – “no person shall carry on
business as a Distributor, Agent or Retailer except under in accordance
with the terms and conditions of a valid licence granted under sub-
paragraph (1) of paragraph 6 of this order”.
13. At the time of examination of this accused under Section 313 of Cr.P.C. he
did not disclose that at the relevant point of time he had with all the
relevant documents for carrying the lubricating oil in his rickshaw. No
witness was cited on behalf of this appellant to prove that he had valid
permit to carry the said materials. This appellant also failed to discharge
his onus either by examining witnesses or by producing documents that
he had lawful authority to carry the lubricating oils.
14. The learned Special Judge after considering the oral as well as
documentary evidences convicted the appellant. The appellant was
carrying lubricating oil in his rickshaw contravening the provision of Para
3 of the Lubricating Oil Licensing Order, 1967 and failed to produce any
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8
scrap of document of possessing/carrying the same from one place to
another. Having heard the learned Advocates for the parties, I do not find
any ground to interfere with the judgment passed by the learned Trial
Court. Such, the order of conviction passed by the learned Trial Court
dated 16.06.1999 is found to be justified.
15. At the time of conclusion of hearing both the parties to the case candidly
submitted that the present appellant is aged about more than 70 years
and the incident took place in the year 1993 and the present appellant has
no criminal antecedent and as such, this appellant may be dealt with
leniently.
16. It is profitable to quote the observation of the Hon’ble Apex Court in the
case of Tarak Nath Keshari -vs- State of West Bengal1 wherein Hon’ble
Apex Court held as follows:
“10. However, still we find that a case is made out for grant of
benefit of probation to the appellant for the reason that the
offence was committed more than 37 years back and it was not
pointed out at the time of hearing that the appellant was involved
in any other offence. Before all the courts below, the appellant
remained on bail. Criminal Appeal No. 1444 of 2023 While
entertaining his appeal, even this Court had granted him
exemption from surrendering. Section 4 of the Probation of
Offenders Act, 1958 has a non obstante clause. The same is
extracted below:
1 2023 SCC OnLine SC 605
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9“4. Power of court to release certain offenders on probation of
good conduct.–(1) When any person is found guilty of having
committed an offence not punishable with death or imprisonment
for life and the court by which the person is found guilty is of
opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the
offender, it is expedient to release him on probation of good
conduct, then, notwithstanding anything contained in any other
law for the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he be
released on his entering into a bond, with or without sureties, to
appear and receive sentence when called upon during such
period, not exceeding three years, as the court may direct, and in
the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender
unless it is satisfied that the offender or his surety, if any, has a
fixed place of abode or regular occupation in the place over which
the court exercises jurisdiction or in which the offender is likely to
live during the period for which he enters into the bond.(2) Before making any order under sub-section (1), the court shall
take into consideration the report, if any, of the probation officer
concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if
it is of opinion that in the interests of the offender and of the
public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the
supervision of a probation officer named in the order during such
period, not being less than one year, as may be specified therein,
and may in such supervision order impose such conditions as it
deems necessary for the due supervision of the offender.
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(4) The court making a supervision order under sub-section (3)
shall require the offender, before he is released, to enter into a
bond, with or without sureties, to observe the conditions specified
in such order and such additional conditions with respect to
residence, abstention from intoxicants or any other matter as the
court may, having regard to the particular circumstances,
consider fit to impose for preventing a repetition of the same
offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub- section (3)
shall explain to the offender the terms and conditions of the order
and shall forthwith furnish one copy of the supervision order to
each of the offenders, the sureties, if any, and the probation
officer concerned.”
11. Even if there is minimum sentence provided in Section 7 of the
EC Act, in our opinion, the appellant is entitled to the benefit of
probation, the EC Act, being of the year 1955 and the Probation of
Offenders Act, 1958 being later. Even if minimum sentence is
provided in the EC Act, 1955 the same will not be a hurdle for
invoking the applicability of provisions of the Probation of
Offenders Act, 1958. Reference can be made to a judgment of this
Court in Lakhvir Singh v. The State of Punjab & Ors.”
17. It has been observed by the Hon’ble Apex Court in the case of
Dhurukumar & Ors. -vs- State of Maharashtra2 wherein Hon’ble Apex
Court held, inter alia at paragraph 2 as follows:
“2. Having heard learned counsel for the parties, we do not
find any ground to interfere with the judgment of the High
2
(2017) 9 SCC 411
2025:CHC-AS:1112
11Court. At this stage, learned counsel for the appellants
submitted that the appellants are the first offenders. Therefore,
the appellants may be dealt with under Section 360 of the
Code of Criminal Procedure, 1908 (sic 1973). It is true that the
appellants do not have antecedents of offender. Both of them
are the first offenders. Having regard to the facts and
circumstances of the case, we are of the view that the
appellants should have been dealt with under Section
360 Cr.P.C. The ends of justice would be met by granting the
benefit of Probation of Offenders Act, 1958 to the appellants.
We order accordingly. Hence, the appeal is allowed in part and
while upholding the conviction and sentence of fine awarded to
the appellants, sentence of imprisonment awarded against
them is set aside and the trial court is directed to deal with
them under the provisions of Section 360 of the Code of
Criminal Procedure, 1908 (sic 1973).”
18. I have given due consideration to the submissions put forth before me,
as also the documents on record. I have also taken note of the social
background of the appellant, the gravity and impact of the offence and
the fact that he is a first offender with no criminal antecedents. The
conduct of the appellant who remained on bail during the course of trial
and post the trial is also noted. After his conviction, he was enlarged on
bail but he made no attempts to flee. The learned Advocate for the State
has not placed any evidence before this court that the present appellant
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convict is a recidivist. There were no adverse reports against him from
any quarter post the conviction. Perusal of the Learned Trial Court
records also reveals no such antecedents. In view of the observations as
cited above I am of the opinion that the appellant convict is entitled to
benefit of probation and can be released on probation since the incident
related to in the year 1993. The appellant to be taken into custody to
serve out the sentence would not be expedient in the interest of justice
after lapse of 32 years.
19. The appellant is directed to be released on probation under Section 4 of
the Probation of Offenders Act, 1958 on entering into bond of Rs.
5000/- (Rupees Five Thousand) with two sureties to the satisfaction of
the learned Chief Judicial Magistrate, Murshidabad. He has to ensure
that he will maintain peace and good behaviour for the remaining part
of his sentence, and shall not repeat the offence. Should he fail to
maintain the peace or not be of good behaviour or repeat the offence, he
shall serve out the sentence imposed by the Learned Trial Court.
20. The Appellant is released from his bail bonds.
21. Accordingly, the Criminal Appeal being CRA 290 of 1999 stands
disposed of.
22. Hence, the appeal is allowed in part upholding the conviction and
sentence awarded to the appellant.
23. Copy of this Judgment also be remitted to the Learned Trial Court for
information and compliance along with its records.
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24. Urgent Photostat certified copy of this order, if applied for, be given to
the parties on payment of requisite fees.
(Prasenjit Biswas, J.)