High Court affirms the West Bengal Kerosene Control Order, 1968, and recognizes Article 21 speedy-trial rights to mitigate sentence; binding on subordinate courts
Summary
| Category | Data |
|---|---|
| Case Name | CRA/423/1988 of SWAPAN KUMAR BERA Vs THE STATE CNR WBCHCA0080881988 |
| Date of Registration | 23-09-1988 |
| Decision Date | 26-08-2025 |
| Disposal Nature | PARTLY ALLOWED |
| Judgment Author | Prasenjit Biswas, J. |
| Court | Calcutta High Court (Appellate Side) |
| Bench | Single Judge |
| Precedent Value | Binding in West Bengal; persuasive elsewhere |
| Overrules / Affirms | Affirms existing law |
| Type of Law | Criminal/Regulatory (Essential Commodities Act 1955; West Bengal Kerosene Control Order, 1968) |
| Questions of Law |
|
| Ratio Decidendi |
The court held that seizure of 219 litres of kerosene and diesel oil from an unauthorized shop, without licence or stock-cum-rate display, violated Para 11(2) of the West Bengal Kerosene Control Order, 1968, and warranted conviction under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. The appellant’s failure to produce any permit or account books, coupled with a cogent seizure list and lab report, left no reasonable doubt. While upholding conviction, the court found that a 39-year delay in trial and appeal infringed the appellant’s fundamental right to a speedy trial under Article 21 and justified reducing the remaining sentence to the period already served, subject to enhancement of the fine. |
| Judgments Relied Upon | Nagaraj v. State represented by Inspector of Police, Salem Town, Tamil Nadu, (2015) 4 SCC 739 |
| Logic / Jurisprudence / Authorities Relied Upon |
|
| Facts as Summarised by the Court |
The De-facto complainant (PW1), a D.E.O., led a raid on 11 June 1986 (9:30–11:30 hrs) at the appellant’s unauthorized shop and godown. Authorities seized three barrels containing 125 L diesel, 75 L kerosene, and 144 L kerosene (total 219 L), took 200 g samples of each, and prepared a seizure list signed by independent witnesses. PW6’s lab report confirmed the substances. The appellant failed to produce any licence, stock-cum-rate board, or account books. No defence evidence was adduced. After conviction under Section 7(1)(a)(ii), the appeal was heard 39 years later. |
| Citations | (2015) 4 SCC 739 (Nagaraj) |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in West Bengal ruling on kerosene-control offences |
| Persuasive For | Other High Courts considering sentence mitigation for delayed trials under Article 21 |
What’s New / What Lawyers Should Note
- Possession of kerosene or diesel oil exceeding 10 litres without a permit is conclusively an offence under Section 7(1)(a)(ii) of the Essential Commodities Act when regulated by Para 11(2) of the West Bengal Kerosene Control Order, 1968.
- A well-drawn seizure list and chemical test report suffice to prove unauthorised possession; defence must produce licence or account books to raise reasonable doubt.
- Courts may treat decades-long trial and appeal delays as mitigating circumstances under Article 21, reducing unserved jail terms to time already undergone.
- Enhancement of fine can balance ends of justice when substantive sentence is curtailed for delay.
- Petitions for sentence modification on speedy-trial grounds can be cited to secure relief in long-pending criminal matters.
Summary of Legal Reasoning
-
Seizure and Proof
- PW1 and PW3 described seizure of 219 L from the appellant’s shop, supported by a signed seizure list (Exh. 4) and lab report (Exh. 8).
- PW6 confirmed the substances as kerosene and light diesel oil per Indian standards.
-
Statutory Violation
- Para 11(2), West Bengal Kerosene Control Order, 1968: no person may possess over 10 L without a permit.
- Section 7(1)(a)(ii), Act X of 1955: penalises unauthorised possession, transport, or storage of essential commodities.
-
Absence of Defence
- Appellant failed to produce any licence, stock-cum-rate board, or account books.
- No defence witnesses were eventually called, despite notice under Section 313 CrPC.
-
Conviction Upheld
The court found prosecution evidence consistent, cogent, and beyond reasonable doubt, justifying conviction under Section 7(1)(a)(ii).
-
Article 21 and Speedy Trial
- Trial and appeal spanned ~39 years, infringing the fundamental right to a speedy trial.
- Prolonged delay is a recognized mitigating factor for sentence modification.
-
Sentence Modification
- Substantive imprisonment reduced to time already served (9 days).
- Fine enhanced from Rs 1,000 to Rs 3,000, with balance default term of one month.
Arguments by the Parties
Petitioner
- Contradictions in seizure-place evidence (shop vs. football ground).
- Hostile independent witnesses undermining seizure list.
- No measurement chart for samples; only memory-based quantities.
- Appellant stored oil for personal machine use.
- Reliance on Nagaraj (2015) SCC 739 to challenge conviction and process.
State
- Statutory breach of Para 11(2), Kerosene Control Order; 219 L seized.
- No licence or permit produced; no stock-cum-rate display.
- Chemical report confirms substances.
- Conviction under Section 7(1)(a)(ii) is legally sound.
Factual Background
In June 1986 the District Excise Officer and a raiding team conducted a search of the appellant’s unauthorized kerosene/diesel shop and godown in Daspur PS. They seized three barrels containing a total of 219 litres of kerosene and diesel oil, took 200 g samples of each, and prepared a seizure list signed by independent witnesses. No licence, stock-cum-rate board, or account books were produced. A lab report confirmed the seized substances. The appellant was convicted under Section 7(1)(a)(ii) of Act X of 1955 and sentenced. After an approximately 39-year delay in appeal, the High Court partly allowed the appeal by modifying the sentence on speedy-trial grounds.
Statutory Analysis
-
Para 11(2), West Bengal Kerosene Control Order, 1968
Defines permissible possession of kerosene (max 10 L) and requires a permit from the Director or DM for excess. -
Section 7(1)(a)(ii), Act X of 1955 (Essential Commodities Act, 1955)
Penalises unauthorized transport, storage, or possession of essential commodities in excess of prescribed limits. -
Article 21, Constitution of India
Guarantees the right to life and personal liberty, including the right to a speedy trial; long delays may warrant sentence mitigation.
Alert Indicators
- ✔ Precedent Followed
- 📅 Time-Sensitive (speedy-trial considerations under Article 21)
Citations
- Nagaraj v. State represented by Inspector of Police, Salem Town, Tamil Nadu, (2015) 4 SCC 739