“Sending Appellant To Jail After 42 Years Not Expedient”: Calcutta High Court Releases Essential Commodities Act Convict On Probation

Holding that sending a man to jail more than four decades after the alleged offence would serve no meaningful purpose, the Calcutta High Court released an Essential Commodities Act convict on probation while upholding his conviction. Justice Ananya Bandyopadhyay observed that requiring the appellant to undergo imprisonment at this stage, nearly 42 years after the incident, would not be “expedient in the interest of justice”, and that the ends of justice would be better served by extending the benefit of the Probation of Offenders Act.The criminal appeal arose from a 1989 judgment of the Special Court (ECA), Midnapore, which had convicted the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentenced him to one year's simple imprisonment with fine. The prosecution case was that during an inspection of the appellant's oil godown in August 1984, officials seized 200 litres of High Speed Diesel, 200 litres of kerosene and several bags of fertilizers. The appellant allegedly failed to produce any licence, stock register or records authorising storage or trade in those commodities, leading to prosecution for violations of the West Bengal Motor Spirit & High Speed Diesel Oil (Licensing, Control & Maintenance of Supplies) Order, the West Bengal Kerosene Control Order and the Fertilizer (Control) Order.Before the High Court, the appellant argued that mere storage could not automatically lead to an inference of sale or “dealing”, that the search and seizure were not conducted by duly authorised officers, and that amendments to the Kerosene Control Order had been wrongly applied retrospectively. It was further contended that the statutory presumptions under the Act had been misapplied and that the prosecution failed to establish culpable intent.After examining the record, the Court found no merit in these submissions. It held that the prosecution had proved seizure of the controlled commodities from the appellant's possession and that he had failed to produce licences, accounts or returns as required under the control orders. The Court observed that non-compliance with statutory requirements was clearly established and that the trial court had correctly appreciated both oral and documentary evidence. Accordingly, the conviction was affirmed.However, while considering the question of sentence, the Court noted that the incident dated back to 1984 and that the appellant had remained on bail throughout the pendency of the proceedings. Relying on the Supreme Court's decision in Tarak Nath Keshari v. State of West Bengal, the Court reiterated that the benefit of the Probation of Offenders Act, 1958 can be extended even where the Essential Commodities Act prescribes minimum sentences, particularly in old matters where incarceration would serve little purpose.Terming it inexpedient to send the appellant to custody after such a long lapse of time, the Court directed his release on probation under Section 4 of the Probation of Offenders Act upon execution of a bond of ₹20,000 with two sureties to maintain peace and good behaviour. He was also directed to pay a fine of ₹20,000 within 60 days, failing which he would have to serve the sentence. The appeal was accordingly disposed of with the conviction maintained but the sentence modified to probation.Case: Ashis Kumar Kulovi -Vs- The State of West BengalCase No: C.R.A. 289 of 1989Click here to read order

“Sending Appellant To Jail After 42 Years Not Expedient”: Calcutta High Court Releases Essential Commodities Act Convict On Probation

Srinjoy Das

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