IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE, BAJALI, BARPETA : : ASSAM. C.R. No- 09/2009 U/S. 7 of the Essential Commodities Act.

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1 1 IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE, BAJALI, BARPETA : : ASSAM C.R. No- 09/2009 U/S. 7 of the Essential Commodities Act. State of Assam Represented by the Inspector Food, Civil Supply & C.A., Bajali, Pathshala.. COMPLAINANT. Versus 1. Sri. Hem Chandra Khatoniyar Son of late Harmohan Khatoniyar, Of village : Bhutanta Mahitora P.S. : Patacherkuchi District :- Barpeta, Assam. 2. Sri. Sivaram Nath Son of Late Peturam Nath Of village : Phularguri P.S. :- Barpeta, District :- Barpeta, Assam. 3. Sri. Dinesh Medhi Son of Late Sambaru Ram Medhi Of village : Bhutanta Mahitara P.S. :- Patacherkuchi, District :- Barpeta, Assam. 4. Sri. Anil Talukder Son of Deven Talukder Of village : Bhutanta Mahitara P.S. :- Patacherkuchi, District :- Barpeta, Assam. ACCUSED PERSONS.

2 2 Present :- Md. M.H. Barbhuiya, LL.M., A.J.S. S.D.J.M., Bajali. Advocate for the complainant :- Mr. J. Khan (A.P.P.). Advocates for the accused persons :- Sri. S. Das Md. N.M.H. Rahman Sri. G. Chaudhury Sri. N. Sharma Dates of recording evidence : , , , , , , , , & Date of hearing argument : Date of delivering judgement : Judgment and order 1. Case of the complainant : In a nutshell, the case of the complainant, is that on as many as 12 (twelve) no s Fair Price Dealers under Uttar Bajali Samabay (Samitee in short) lodged a complaint (Ext. 1) before the Sub-divisional Officer (civil), Bajali, Pathshala alleging that they did not receive the additional APL Rice collected by the secretary (Shivaram Nath) of the Samitee. Accordingly, the matter being under the Food and Civil Supply wing, the P.W. 7 Sri. C.N. Baishya inspected the matter on that day itself. It is the contention of the prosecution that during enquiry the secretary Sri. Shivram Nath confessed in writing that he sold some portion of the APL Rice in the open market. It is the contention of the prosecution that during enquiry it was found that 140 quintals of APL rice were lifted for the month of May/07 but there was no opening balance as on and the closing balance as on It is the contention of the prosecution that although it is shown that the 140 quintals of rice was distributed amongst 46

3 3 fare rice dealers, but in fact, quintals rice against 6 dealers were not delivered to them. It is also the contention of the prosecution that although the GPSS showed distribution of 150 quintals APL Rice for the month of June/07 and 120 quintals adhoc additional APL Rice for the month of May/07, in fact, quintals of APL rice was not delivered to 17 dealers and the additional APL Rice 120 quintals was not delivered to any of the dealers. It is the contention of the prosecution that the accused Dinesh Medhi (manager) and the accused Anil Talukder (accounts keeper) stated that they sold the rice in open market as per the direction of the chairman Hemchandra Khatoniyar and secretary Sivrama Nath. It is also the contention of the prosecution that the accused persons manipulated the cash memos etc. of the Samitee. It is the further contention of the prosecution that the accused persons who were the in the management of the Samitee did not display the board of notified articles and also did not submit the return of the notified articles to the authorities. 2. On receipt of the complaint, after due enquiry as required U/S. 200 and 202 Cr.P.C., my ld. predecessor took cognizance of the offences complained off and thereafter issued summons to the accused persons to apprise their stand. 3. In due course, the accused persons caused their appearance. After recording the evidence of the witnesses, on the basis of the materials available, charge U/S. 7 of the Essential Commodities Act, 1955 in detail were framed, read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The defence availed the opportunities to cross-examine the P.W s after the charge. 4. In support of the case, the complainant side has examined oral and documentary evidence such as : P.W.1 : Sri. Ramnatha Chaudhury P.W.2 : Sri. Nripendra Barman P.W.3 : Sri. Parikhit Talukder P.W.5 : Sri. Prafulla Roy P.W4 : Sri. Utpal Barman P.W.6 : Sri. Kapil Roy

4 4 P.W.7 : Sri. Satindra Nath Baishya P.W.8 : Sri. Naren Kakoty Ext. 1 : Complaint filed by the consumers before the S.D.O. (Civil), Bajlai. Exts. 2, 4, 5, 6 & 11 : Statements of the P.W. s 1, 4, 5, 6 & 8 before the Inspector (P.W.7). Exts. 3 & 9 : Seizure lists Ext. 7 & 8: Detail statements of the Inspector showing nondistribution of the allotted rice. Ext. 10 : Offence Report. 5. The case of the accused persons is of denial of the accusations against them. The specific plea of the accused Hemchandra Khatoniyar is that at the relevant time he was not in the management of the Samitee. The defence also adduced oral as well as documentary evidence such as : D.W.1 : Giyash Ali D.W.2 : Hem Chandra Khatoniyar Ext. A : Forwarding letter of the B.S.S. Ltd. dated to the higher authority for approval of the new committee. Ext. B : Photocopy of the list of shareholders along with the relevant resolutions. Ext. C : Forwarding letter of the B.S.S. dated Ext. D : Extract photocopy of the resolution dated Ext. E : Approval of the committee vide order dated Ext. F : Result of the election of B.S.S.. Ext. G : Approval of the committee by the Asstt. Registrar. Ext. H : Certified copy of the order passed by the Hon ble Gauhati High Court in W.P ( C) No. 2792/07.

5 5 Ext. I : Stay order dated issued by the Registrar. Ext. J : Order dated passed by the Registrar. 6. Points for determination:- 1. Whether the accused persons being the president, secretary, manger and accountant of Utter Bajali Samabay Samitee maintained false and fabricated account of quintals of APL rice for May /07 & June/07 including 120 quintals of Ad-hoc additional rice for the month of May/07? 2. Whether the accused persons above named did not distribute the ad-hoc additional APL Rice 120 quintals to the Fair Price Dealers under them, rather, sold the same in open market? 3. Whether the accused persons failed to submit the return of notified articles to the licensing authority for the aforesaid period?. 4. Whether the accused persons failed to display the board of notified articles in the Samitee for the aforesaid period?. 7. Discussion, Decision and reasons therefor :- I have heard Mr. J. Khan, assisted by Mrs. D.Devi, the learned counsel appearing for the complainant. Also heard Mr. S.Das, the ld. counsel appearing for the accused Dinesh Medhi and Anil Talukder, Sri. G. Chaudhury ld. counsel appearing for the accused Shiva Ram Nath and Mr. N. Sharma ld. counsel appearing for the accused H. Khatoniyar. Upon hearing the learned counsel for the parties and on perusal of the records, I am of the considered opinion to hold the following :- 8. Mr. Khan the ld. counsel for the complainant submitted although the defence took the plea that at the relevant time they were not holding the charge of the Bajali Samabay Samitee, yet, from the evidence and documents submitted on behalf of the complainant it appears that the accused persons in furtherance of their common intention misappropriated the allotted rice for their personal gain. He submitted that the accused persons cheated the common people of the locality and manipulated the documents. Pointing out the

6 6 above, he submitted that the accused persons are liable to be punished in accordance with law. 9. On the other hand, Mr. Das submitted that the prosecution who alleged that the accused persons Dinesh Medhi and Anil Talukder confessed to had sold the rice in open market did not and could not prove the same in accordance with law. He submitted that the informant of the case stated that as per the order of the S.D.O. Bajali he conducted the enquiry but the prosecution did not produce the order for perusal of the court. He submitted that the prosecution alleged that the signatures of the fare price dealers were forged but the prosecution did not compare the signatures through expert to authenticate the accusations. He submitted that the P.W.2 stated that he put his signature in the seizure list in the morning hours but the informant stated that he seized the documents at about 1/ 2 P.M.. He further submitted that the informant had no jurisdiction to file the case in as much as at the relevant time he was working at Tinsukiya and this indicates that he had some ulterior motive. He also submitted that it is admitted by the D.W.1 that the accused persons Anil and Dinesh were engaged in 2008 but the offence was allegedly committed in Pointing out the above, he submitted that the accused persons who are innocent are entitled to be acquitted. Mr. Chaudhury, the ld. counsel appearing of the accused person Shiva Ram Nath particularly pointed out that the prosecution alleged that the accused person authorized the other accused persons to sell the rice in open market but the prosecution could not and did not submit any such document to prove the said accusations. He also submitted that the accused person is entitled to be acquitted. Mr. Sharma the ld. counsel appearing for the accused Hemchandra Khatoniyar submitted that from the documentary evidence marked as Exts. A to I it is clear that at the relevant time the accused person was not the chairman/president of the Samitee.

7 7 He submitted that if at all the other accused persons committed anything, he was not aware about the same. Pointing out the above, he also submitted that the accused person is entitled to be acquitted. 10. I have heard the rival submissions advanced on behalf of parties. Also perused the records. Let us analyze the evidence on record so as to find out as to whether the complainant has been able to prove the guilt against the accused persons or not. In this regard, from Ext. 1 it appears that as many as 12 No s of fair price dealers submitted a written complaint before the S.D.O., Bajali, alleging non-distribution of the ad-hoc additional APL rice by the Samitee to them. The P.W s 1 and P.W.4 are also the signatories of that complaint. Their signatures are marked as Exts. 1 (1) and 1 (2). 11. The defence argued that the prosecution has failed to produce the order of the S.D.O. by which the P.W.7 was directed to conduct the enquiry and therefore, the case of the prosecution is doubtful. In this connection, it requires a mention that the Food and Civil supply wing of the administration is under the administrative control of the S.D.O. (Civil). Section 28(c) of the Assam Public Distribution of Articles Order 1982 provides that the Sub-Divisional Officer shall have all the powers of the licensing authority. And in view of section 31 of the aforesaid order the power of the licensing authority includes power of inspection of any co-operative society within his jurisdiction. It is not required that in all cases the order must be written. It may be oral also. In the case in hand, from the evidence of the P.W s it has come into light that the P.W.7 (inspector) conducted the enquiry on itself. The action was taken promptly, otherwise, the material evidence might have been destroyed. Therefore, the point as raised by the defence that the prosecution did not produce the order of inspection, according to me, does not have such force to discard the case of the prosecution. 12. From M. Exts. 7 to 9 (release orders) it appears that for the month of May/ quintals and 120 quintals of APL rice were lifted by

8 8 the Samitee. The rice weighing 120 quintals for the month of May/07 was sanctioned as additional rice and the same was received by the accused Dinesh Medhi on from the Food Corporation of India, Barpeta Road Godown. It also appears that for the month of June/ quintals of APL Rice was collected from the said Godown and the same was also received by the accused Dinesh Medhi by putting his initial. Importantly, the lifting of the aforesaid rice from the F.C.I. has not been denied by the defence. 13. I have perused the stock and sale registers marked as M. Exts. ga and Gha (1 and 2) it appears that there is no entry of the ad-hoc additional APL Rice weighing 120 quintals. 14. Further, on perusal of the Exts. 2, 4, 5, 6 & 11 i.e. the statements of the P.W. s 1, 4, 5, 6 & 8 before the Inspector of Food and Civil Supply (P.W.7) it appears that they, being the fair price dealers, did not receive the additional rice lifted for the month of May The P.W.1 Ramnath Chaudhury stated that he received only 4.5 quintal normal rice for the month of May, 2007 but he did not receive the additional rice for the month of May, The P.W. 2 Parikhit Talukder stated that he did not receive the additional rice from the Samitee. The P.W. 5 namely Prafulla Roy in his evidence stated that he also did not receive the additional rice for the month of May, The P.W.6 namely Kapil Roy in his statement stated that he also did not receive the additional rice for the month of May, The P.W.8 namely Naren Kakati also stated that on he also did not receive the additional APL rice for the month of May/ On perusal of the evidence on record, it appears that the P.Ws retained their stand on their evidence adduced before the court including in the cross-examination. The P.W s 1, 5, 6 and 8 reiterated the fact that they did not receive the additional APL rice lifted by the Samitee for the month of May/07. The defence could not rebut the evidence of these witnesses on the above point. Even, the defence did not put a suggestion to those witnesses to defy their statements. Thus, from the oral evidence of these witnesses coupled

9 9 with the documentary evidence marked as Exts. 2, 4, 5, 6 & 11 it has come into light that the fair price dealers, at least, the dealers who adduced evidence before this court were not given to the allotted additional rice lifted by the Samitee for distributing the same to them. 16. Further, I have perused the Lifting Books of the fair price dealers mentioned in the list of enclosures and pointed out at sl. No.9 of that list. On perusal of the lifting books specially those of the dealers namely Prafulla Roy, Utpal Barman, Kapil Roy and Naren Kakati it appears that there was no entry of the distribution of the Ad-hoc additional APL Rice in favour of any dealers. 17. From the license issued to the Samitee it appears amongst others, that vide clause No. 4 the Samitee was under obligation to follow the Public Distribution Orders or any other law for the time being in force. Needless to mention more except the fact that the Samitee is and was under the obligation to distribute the essential commodities to the fair price dealers in controlled price so that the poor people of this locality will not suffer from starvation. 18. I have gone through the relevant provisions connected in the instant case. Section 11 of the Assam Public Distribution of Articles Order 1982 states that no appointed dealer who has been appointed as sub-wholesale dealer shall issue or sell any quantity of notified articles to any customer excepting to the retailer appointed and attached to his shop by the licensing authority. Section 14 of the aforesaid order speaks that no holder of a licence issued under this order or his agent or servant of any person acting on his behalf shall contravene any of the terms and conditions of the licence. 19. Apart form the above, Section 6(4) of the Public Distribution System (Control) Order, 2001 is also relevant here. This section speaks that the authority or person who is engaged in the distribution and handling of essential commodities under the Public Distribution

10 10 System shall not willfully indulge in substitution or adulteration or diversion of the stocks from Central Godowns to fair price premises or at the premises of the fair price shop. For the purpose of this clause diversion means unauthorized movement or delivery of essential commodities released form Central godowns but not reaching the intended beneficiary under the public distribution system. The aforesaid provisions have been made by the Govt. in accordance with the powers provided vide section 3 of the Essential Commodities Act, These are enforceable. 20. It requires a mention that although the prosecution contended that the accused persons did not distribute 18.0 quintals of APL rice (general) for the month of May, 2007, and quintals of APL rice for the month of June, 2007, yet, the witnesses so far examined by the complainant side did not support the said fact. As stated above, the dealers who adduced evidence in this case stated that they received the other rice except the rice allotted in the additional quota i.e. from the 120 quintals. From Ext. 8 list of beneficiaries prepared by the P.W.7 (Inspector) it appears that as many as 17 persons including the P.W. s 1, 4, 5, and 8 did not receive the additional quota rice for the month of May/07. That document has also not been challenged by the defence. Therefore, it appears that the fact that the fare price dealers did not receive the additional APL Rice for the month of May/07 is established by the prosecution through oral as well as documentary evidence, and obviously, these are violations of the aforesaid rules as well as the terms of the license. 21. FIXING THE RESPONSIBILITY : Let us analyze the materials available on record to find out as to whether the accused persons were responsible for the non-distribution of the rice in question or not. From the Release orders attached with the seizure lists marked as M.Exts. unga it has been seen that the APL rice weighing 120 quintals was collected by the accused Dinesh Medhi. He collected

11 11 the same on and The Release orders indicate that the aforesaid rice were delivered in favour of the Utter Bajali Samabay Samitee and for none else. 22. Herein, I am reminded about the special provision pertaining to trial of such a case. Section 14 of the Essential Commodities Act, 1955 provides that where a person is prosecuted for contravening any order made under section 3 which prohibits him from doing any act, or being in possession of thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him. This section provides that if any person does any act contravening any order made under section 3 of the Act, the burden lies on him/her to prove that he/she has the authority to act in such a manner. In the case in hand, it is the accused persons to prove that they had authority to sell the additional rice to persons who are not the registered fair price dealers. 23. The defence contended that at the relevant time the committee of the Samitee was not in function and therefore, the accused persons were not responsible for the offence alleged. I have perused the documents submitted on behalf of the defence. Perusal of the Ext. A it appears that the resolution of the Annual General Meeting of the Samitee held on (marked as Ext. B ) was forwarded to the Asstt. Registrar of Co-operative Societies, Barpeta for approval. From this resolution as well as from Ext. F it appears that in the new committee the accused person Hem Chandra Khatoniyar was elected as the president. From Ext. E and G it appears that the new committee was approved by the Asstt. Registrar Co-operative Societies, Barpeta on From Ext. I it appears that pursuant to the order dated passed by the Hon ble Gauhati High Court in W.P. No. 2792/07 the Registrar of Co-operative Societies, on , suspended the approval of the committee issued by the Asstt. Registrar and during the interim period placed Sr. Inspector Hiteswar Das as one man committee of the Samitee. From Ext. J it appears that vide order

12 12 dated the Registrar Co-operative Societies withdrew the order of suspension issued by him earlier. 24. On perusal of the materials available on record, it appears that the accused persons Shivaram Nath, Anil Talukder and Dinesh Medhi were acting as secretary, manager and sales man of the Samitee is not disputed by the defence at any point of time in the trial. Rather, these three accused persons admitted the same in their statement recorded under section 313 (1) (b) Cr.P.C.. Further, on perusal of the Lifting Books of the Fair Price Dealers (M. Ext. ka) it appears that at the relevant time, it was the accused Dinesh Medhi who issued the AAY Rice, MDM Rice, Kerosene oil etc. to the dealers. These documents further reveal that the accused persons above named were in the management of the Samitee at the relevant time. Further, the P.W.7 (inspector) in his evidence reiterated that during the time of inspection he found the accused Shivaram Nath in the office of the Samitee and he handed over the relevant documents to him. This aspect also makes it further clear that the accused person was managing the Samitee. The defence could not produce any cogent materials to show that at the relevant time these three persons were not managing the activities of the Samitee. 25. But, the accused person Hemchandra Khatoniyar, during the trial including the statement recorded under section 313 (1) (b) Cr.P.C.. denied to had been functioning during the months of May, June and July, Form Ext. I it appears that the Registrar Co-operative Societies vide his order dated suspended the approval of the new approved by the Asstt. Registrar concerned vide his order dated marked as Ext. G. From Ext. J it appears that vide order dated the Registrar concerned cancelled his earlier order and allowed the elected committee of function. From these aspects it appears that the accused person Hemchandra Khatoniyar was not functioning from to Thus, I am of the humble opinion to hold that the accused Hem Chandra Khatoniyar could prove the fact that at the relevant time

13 13 he was not functioning in the society because of the aforesaid orders issued by the higher authority. 26. So far as the display of board and returns etc., on careful perusal of the record it appears that the P.W. s 1, 4 and 6 categorically stated that the display board is displayed in the office. The other witnesses except the P.W.7 did not state anything to the effect that required notice board is not displayed in the office of the Samitee. I do not find that the prosecution has produced any cogent materials on these points against the accused persons. 27. In view of the foregoing discussion, I am of the humble opinion to hold that the complainant has been able to prove the fact that the accused persons Shivaram Nath, Dinesh Medhi and Anil Talukder, being in the management of the Utter Bajali Samabay Samitee has violated the Orders made under section 3 of the Essential Commodities Act, 1955 by not distributing the 120 quintals of ad-hoc additional APL Rice lifted for the month of May/07 to the fair price dealers registered under it. I am also humble opinion to hold that the complainant has failed to prove the nexus or involvement of the accused Hem Chandra Kahtoniyar in the offence proved. 28. In the result, the accused persons Shivaram Nath, Dinesh Medhi and Anil Talukder are hereby convicted for the offence U/S. 7 (1) (a)(ii) of the Essential Commodities Act, At the same time the accused person Hem Chandra Khatoniyar is hereby acquitted from the charge against him. Bail bonds furnished by him/his sureties are hereby cancelled/discharged. 30. Considering the nature of the offence, the way it was committed and also considering the fact that the accused persons who were entrusted with public trust indirectly cheated the poor people of the locality by not delivering their rice under controlled price as per the scheme framed by the govt., I am not inclined to release them on probation.

14 Heard the convicts on the point of sentence. The convict Shivaram Nath states that he is an old man and therefore, he may be exempted form punishment. The convict Anil Talukder states that he is the only earning member of the family and therefore, he may be exempted form punishment. The convict Dinesh Medhi states that he is having minor children and he is the only bread earner of the family, and therefore, he may be exempted from punishment. 32. I have given due consideration on the statements made by the convicts and thereupon considering the entire facts and circumstances, I do hereby sentence the convicts Shivaram Nath, Dinesh Medhi and Anil Talukder to undergo simple imprisonment for a period of 2 (two) years and to pay a fine of Rs. 3,000/- each I/D to pay the fine, to suffer S.I. for another period of 2 (two) months for the offence punishable under section 7 (1) (a) (ii) of the Essential Commodities Act, This disposed of the case on contest. 34. Furnish a copy of this judgment to the convicts free of cost. Given under my hand and seal of this court on this the 17 th day of January, 2013 at Bajali, Pathshala, Barpeta. Sd/- (Md. M.H.Barbhuiya ) S.D.J.M. (M), Bajali, Pathshala, Barpeta.

15 15 A P P E N D I X The oral and documentary evidence adduced by the complainant side are : P.W.1 : Sri. Ramnatha Chaudhury P.W.3 : Sri. Parikhit Talukder P.W.5 : Sri. Prafulla Roy P.W.2 : Sri. Nripendra Barman P.W4 : Sri. Utpal Barman P.W.6 : Sri. Kapil Roy P.W.7 : Sri. Satindra Nath Baishya P.W.8 : Sri. Naren Kakoty Ext. 1 : Complaint filed by the consumers before the S.D.O. (Civil), Bajlai. Exts. 2, 4, 5, 6 & 11 : Statements of the P.W. s 1, 4, 5, 6 & 8 before the Inspector (P.W.7). Exts. 3 & 9: Seizure lists Ext. 7 & 8: Detail statements of the Inspector showing non-distribution of the allotted rice. Ext. 10 : Offence Report. The defence also adduced oral as well as documentary evidence such as : D.W.1 : Giyash Ali D.W.2 : Hem Chandra Khatoniyar Ext. A : Forwarding letter of the B.S.S. Ltd. dated to the higher authority for approval of the new committee. Ext. B : Photocopy of the list of shareholders along with the relevant resolutions. Ext. C : Forwarding letter of the B.S.S. dated Ext. D : Extract photocopy of the resolution dated Ext. E : Approval of the committee vide order dated Ext. F : Result of the election of B.S.S.. Ext. G : Approval of the committee by the Asstt. Registrar. Ext. H : Certified copy of the order passed by the Hon ble Gauhati High Court in W.P ( C) No. 2792/07. Ext. I : Stay order dated issued by the Registrar. Ext. J : Order dated passed by the Registrar. Sd/- (Md. M.H.Barbhuiya ) S.D.J.M. (M), Bajali, Pathshala, Barpeta.