HARENDRA NATH CHAKRABORTYversusSTATE OF WEST BENGAL

                   [2008] 17 S.C.R. 1439


           HARENDRA NATH CHAKRABORTY                                 A
                              v.
                STATE OF \NEST BENqAL
            (Criminal Appeal No.2086 of 2008)
                   DECEMBER 19, 2008
                                                                     B
        [S.B. SINHA AND CYRIAC JOSEPH, JJ.]

    ESSENTIAL COMMODITIES ACT, 1955:
    S. 7(1)(a)(ii) proviso- Dealer in kerosene - Convicted and
sentenced to 6 months imprisonment for non-display of stock C
and prices - Sentence reduced to 3 months by High Court -
Held: As the appeal of the accused was admitted by High
Court only on the question of sentence, neither High Court
nor Supreme Court was required to go into merits of the matter
- However, on merits also, no failure of justice has occasioned 0
nor was the trial in any way unfair - High Court, having taken
into consideration entire facts and circumstances, reduced the
sentence of iinprisonment from six months to three months
which was tht.9 minimum sentence provided under the
provision - No case made out to invoke the proviso to
s.7(1)(a)(ii) particularly in view of the fact that accused was E
found to have via.fated provisions of both the 1968 Order as
also the 1977 Order - Sentencing - West Bengal Kerosene
Control Order, 1968 - West Bengal Declaration of Stocks and
Prices of Essential Commodities Order, 1971.
    CODE OF CRIMINAL PROCEDURE, 1973:
    s. 313 - Examination of accused - Conviction under
Essential Commodities Act - Plea that prosecution case was       1




not specifically put to accused u/s 313 - Held: Entire
Prosecution case was based on documentary evidence as
also material objects which had been seized - All material G
evidence on record was brought to notice of accused - It was
for him to explain the same - He did not adduce any
evidence in defence - No failure of justice has occasioned
nor was the trial in any way unfair - Conviction upheld -
                           1439                              H
    1440      SUPREME COURT REPORTS              [2008] 17 S.C.R.


A   Essential Commodities Act, 1955.
          The appellant was a dealer in Kerosene. He was
     granted licence -under the West Bengal Kerosene Control
     Order, 1968. He was pro~ecuted 'for commission of
     offences punishable under the provisions of the E$sential
B Commodities Act, 1955 on the charges of non-display of
     stock and price list as requirJd under para 3(2) of the West
 ... Bengal (Declaration of Stocks and Prices of Essential
     Commodities) Order, 1977, 'non-maintenance 1 of stock
     register as required under para 12 of the order: and that
c his stock was found short. The trial court held that since
     the Investigating Officer did not verify the cash memos,
     the charge of the stock being short was not proved.
     However, on the charges of non-display of stock and
     price list and non-compliance of Para 12 of,the Order as
     regards maintenance of the stock register,· the accused
0
     was convicted u/s 7(1 )(a)(ii) of the Act. sentenced to
     imprisonment for six months and to pay a fine of Rs.2000/
     -. On appeal, the High Court reduced the sentence to
     imprisonment for 3 months. The accused filed the appeal
     challenging the conviction and sentence.
E        Dismissing the appeal, the -court
       HELD:1. No appeal having been preferred by the
  State against the finding of the trial court that the
  prosecution case that the physical stock of kerosene did
  not tally with the expected stock/was not proved, the
F same must be held to have attain~tl finality. [Para 15 and
  16] [1449-D-E]                     /
       2. It cannot be said that the judgment of conviction
  and sentence stands vitiated by reason of non-
G compliance of the provisions bf Section 313 of the Code
                                   1



  of Criminal Procedure, 19.73. It was not a case of
  circumstantial evidence. The entire prosecution case was
  based on documentary e:vidence as also the material
  objects, which had been;.seized. The seizure witnesses,
  namely, P.Ws. 1 and 2, might have been declared hostile,
H
HARENDRA NATH CHAKRABORTY v. STATE OF WEST 1441
                 BENGAL

but the seizure memos were duly proved. The seized             A
documents were also proved. The appellant having been
maintaining the said documents, when discrepancies
occurring therein were pointed out to him, it was for him
to explain the same. He did not adduce any evidence in
defence. The prosecution case based on the basic               8
primary material brought by it on record, namely, raid in
the shop, the stock of kerosene found, seizure of display
board, stock register, cash memo, etc. were put to the
notice of the accused. Apart from making a bald denial
that measurement had not been taken or that no
"Tieasurement chart had been prepared he did not explain       C
the discrepancies in the stock nor did he explain non-
display thereof. It has not been shown as to how he was
prejudiced, particularly, when his son was examined as
a witness. Keeping in view the facts and circumstances
of the case and the nature of allegations made against         b
the appellant, no failure of justice has occasioned nor the
trial was in any way unfair. [Paras 18, 19 and 21] [1451-
H; 1452-A-F]
      State of Punjab vs. Swaran Singh (2005) 6 SCC 101,
referred to.                                                   E
      Vikramjit Singh Alias Vicky vs. State of Punjab (2006)
12 sec 306, distinguished.
     3.1. The appeal preferred by the appellant was
admitted by the High Court only on the question of
sentence, and, therefore, neither the High Court nor this F
Court was required to go into the merits of the matter.
That part of the order of the High Court whereby a limited
notice was issued is not in question. The High Court
having taken into consideration the entire facts and
circumstances of the case, reduced the period of G
imprisonment from six months to three months. [Para
22) [1452-E-F]
     3.2. In India, we do not have any statutory sentencing
policy. Ordinarily, the legislative sentencing policy as (aid
in some special Acts where Parliamentary intent has H
    1442        SUPREME COURT REPORTS              [2008] 17 S.C.R.


A been expressed in unequivocal terms should be applied.
  In the instant case, Parliament has provided for a
  minimum sentence, the same should ordinarily be
  imposed save and except some exceptional cases which
  may justify invocation of the proviso appended thereto.
8 The appellant was dealing with an essential commodity
  like kerosene.In the facts and circumstances, no case
  has been made out to invoke the proviso appended to
  s.7(1)(a)(ii) of the Essential Commodities Act, 1955,
  part~cularly, in view of the fact that the appellant was
  found to have violated the provisions of both West
C Bengal Kerosene Control Order 1968 as also the West
  Bengal Declaration of Stocks and Prices of Essential
  Commodities Order 1977. [Paras 24 and 25] (1453-C-E]
           State of Punjab vs. Prem Sagar & Ors. 2008 (9) SCALE
    590, referred to.
D
           Harivallabha & Anr. vs. State of M.P. (2005) 10 SCC 330,
    distinguished.
                      Case Law Reference:
        (2005) 6 sec 101      referred to                 para 18
E       (2006) 12 sec 306     distinguished               para 20
        (2005) 10 sec 330     distinguished               para 23
        2008 (9) SCALE 590    referred to                 para 25
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No.2086 of 2008.
F       From the final Order dated 29.2.2008 of the High Court of
    Calcutta at Calcutta in C.R.A. No. 80 of 1993.
           Rauf Rahim and Yadunandan Bansal for the Appellant.
        Avijit Bhattacharjee, Saumya Kundu and Subrata Biswas
G for the Respondent.
        The -Judgment of the Court was delivered by                       ~
        S.B. SINHA, J.1. Leave granted.
        2. This appeal is directed against a judgment and order       1
    dated 29.2.2008 passed by a learned Single Judge of the High
H   Court of Calcutta allowing the appeal in part preferred by the
HARENDRA NATH CHAKRABORTY v. STATE OF WEST 1443
           BENGAL [S.8. SINHA, J.]

appellant herein from a judgment and order of conviction and           A
sentence dated 16.3.1993 passed by the learned Judge,
Special Court (E.C. Act), Hooghly, West Bengal in Special
Court Case No. 12 of 1991 convicting him under Section
7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter
called and referred to, for the sake of brevity, as "the Act'')        B
reducing the sentence imposed on him from rigorous
imprisonment for six months and to pay a fine of Rs. 2,000/- in
default to suffer RI. for another one month to suffer RI. for three
months and to pay fine of Rs.2000/- in default to suffer RI. for
15 days.
                                                                       c
     3. Appellant was a dealer in kerosene oil having been
granted licence in terms of the provisions of the West Bengal
Kerosene Control Order, 1968 (for short, "the 1968 Order'I)
made by the State of West Bengal in exercise of its powers
conferred by sub-section ( 1) of Section 3 of the Act read with
clauses (d), (e), (h) and fj) of sub-section (2) of that Section and   D
Section 7(1) thereof as also the Order No. 26(11)-Com.Genl/
66, dated 18th June, 1966.
     4. The State of West Bengal apart from the
aforementioned 1968 Order made West Bengal Declaration of
Stocks and Prices of Essential Commodities Order, 1977 (for            E
short, "the 1977 Order")
     5. Indisputably, kerosene is an essential commodity within
the meaning of sub-section (1) of Section 2A of the Act. For
dealing in the said commodity, a licence is required to be taken
under the 1968 Order. Appellant was holder of a licence                F
bearing No. DP/64 in terms whereof he was entitled to deal in
the said commodity.
      6. Section 7(1 )(a)(ii) provides for imposition of a penalty
on a person who contravenes any order made under Section
3 with imprisonment for a term which shall not be less than three      G
months but which may extend to seven years and shall also be
liable to fine. The proviso appended thereto postulates that the
court may, for any adequate and special reasons to be
recorded in the judgment, impose a sentence of imprisonment
for a term of less than three months.                                  H
    1444             SUPREME CO~RT REPORTS              [2008] 17 S.C.R.


A        7. Manik Lal Das, a Sub-Inspector of Police conducted a
    raid in the shop of the appellant on 28.1.1991. Several
    irregularities were found. A first information report was lodged        .,_
    inter alia alleging:
        "I started physical verification of stock cum rate board
B       stock register, cash memo book in respect of dealing of
         K.Oil and found opening stock of K.Oil dated 27.01.1991
        as 1500 liters. According to stock register he received 200
        liters of K. Oil on the same date i.e. total 1700 liters of K.
        Oil on 27.01.1991. Out of 1700 liters he sold 1198 liter as         ]A


c       per cash memo dated 27.01.1991. As such the opening
                                                                            -'\·
        balance should have been 502 liters on 28.01.1991. But
        the Harendranath Chakraborty did not put opening balance
        on 28.01.199:1 though he received 1000 liters of K. Oil
        vide cash memo No. 767, 768 dt. 28.1.1991 from
        distributor. During physical verification in presence of
D       witnesses (i) Sri Ashoke Kr. Mallick S/o Shri Hardhan
        Mallick of Alipore, P .S. Dadpur, Dist - Hooghly (ii) Sk.
         Kasem S/o Late Sk. Rabin of Alipore village, P.S.
        Dadpore. The total stock of Kerosene Oil was found as
                                                                             -~
        450 excepting sale of K. Oil 257 liters dated 28.01.1991.
E       According to stock register and cash memo book the total
        stock of K.Oil should have been 1502 liters. As such there
        is shortage of K. Oil 795 l!ters."
         8. He did not, however, examine himself. He seized the
    following articles under a seizure list in the presence of witness
F   as well as the appellant:
           "1.       One K. Oil licence No. DP/64 in the name of Shri
                     Harendra Nath Chakraborty S/o Dinabandhu
                                                                             -+--  -
                     Chakraborty of village Alipore, P.S. Dadpore, Dist.
                     Hooghly, valid upto 31.12.1991.
                 -
G          2.        One daily stock register in the name of Sri Harendra
                     Nath Chakraborty for K. Oil duly certified by the
                     Inspector Food & Supply Officer containing page
                     No.1 to 46 in which page No. 1 to 44 have been          'r
                     return and showing opening balance in the said
H                    stock register dated 27 .01.1991 1500 liters and
 HARENDRA NATH CHAKRABORTY v. STATE OF WEST1445
            BENGAL [S.B. SINHA, J.]

            showing received 200 liters on 27.01.1991 and           A
            1000 (one thousand) liters on 28.01.1991.
      3.    One tin made stock board of K. Oil in the name of
            Sri Harendra Nath Chakraborty, nothing was
            written.
      4.    One cash m.emo book in the name of Sri Harendra         B
            Nath Chakraborty for K.Oil commencing from
            memo No.1to1000 in which memo 1to477 have
            been written.
      5.    Two barrels of Kerosene Oil 200 liter in each barrel.
      6.    50 (fifty) liters of Kerosene oil found in an open
                                                                    c
            small drum.
      7.    One polythene pipe measuring 7' feet.
      8.    One tin made measuring pot for 1 liter.
      9.    One tin made measuring pot for 1/2 liter.               D
      10.   One tin made funnel.
     9. Two independent witnesses, namely, (i) Ashok Kumar
Mullick (P.W.1) and (ii) Sk. Kashem (P.W.2) who were examined
before the Court and proved the seizure of articles during the
said raid, were declared hostile. Ravindra Nath Mondal (P.W.6),     E
Investigating Officer, however, examined himself.
    All the documents as also the material objects which were
seized were duly approved.
     10. The learned Trial Judge formulated the following points    F
for his consideration:
      "1.   Whether the accused can be indicted for non-
            display of stock and price list as required under
            para 3(2) of W.B. Declaration of Stocks and Prices
            of E.C. Order, 1977.                                    G
      2.    Whether the accused has failed to comply with the
            terms and conditions of the licence for dealing in
            kerosene oil."
     On point No. 1, it was held that the stock of kerosene was
not displayed on the display board. Thus, the condition No. 6       H
    1446      SUPREME COURT REPORTS                (2008] 17 S.C.R.


A of the licence issued to him under the 1968 Order was found
  to have been violated. The learned Judge held:
         "Onus, thus, shifts upon the accused to discharge the
         burden lying upon him regarding display of stock and price
         board as required under para 3(2) of the Order. He failed
B        to do so. Inference, as such, can rightly be drawn against
         him under· Section 114(g) of the Evidence Act and to
         conclude that the material Ext. Ill is nothing but the stock
        ·and rate board intended to be displayed by the accused
         as required under para 3(2) of the Order. On scrutiny of
c        the said board, as the indication of the opening being found
         conspicuous by its absence stock of kerosene oil as well
         as its wholesale or retail price on the relevant date, I am
         of the view that the allegation against ttie accused that he
         has violated the provision of para 3(2) of the Order is well
         founded."
D
        So far as point No. 2 is concerned, the learned trial Judge
    opined:
        "It is worthwhile to see, therefore, how far the prosecution
        has succeed~d to bring home the said charge against the
        accused beyond reasonable doubt. Material Ext. II is the
E
        so-called stock register produced and identified by 1.0.
        (PW.6) before the court in the absence of non-examination
        of the defacto complaint. On a look at the said document
        it appears that the opening stock of kerosene oil in col.

F
        No. 2 remained blank nor anything was mentioned in
        column No.6 on 27.01.1991 as to the actual sale of
        kerosene oil nor column No. 7 indicated shortage of said        +-
                                                                          ...
        kerosene oil nor anything was pointed out in column No.
        8 as to the balance of kerosene oil, which should be drawn
        as opening balance on 28.01.1'991. Inference, as such, can
G       be drawn against the accused for non-maintenance of the
        stock register as requir.ed by a licensee. lt·is not unlikely
        to mention in this connection that PWs 1 and 2 said to be
        the witnesses to seizure though declared hostile vouched
        for the stock of kerosene oil as 502 ltrs. of kerosene oil at
H   ·   the shop of the accused on the relevant date and thereby
            HARENDRA NATH CHAKRABORTY v. STATE OF WEST1447
                       BENGAL [S.B. SINHA, J.]

              lends support to the case of the prosecution regarding              A
              opening balance of kerosene oil after taking into account
     -r       the sale transaction on 27.01.1991 as 502 ltrs. According
              to the prosecution, accused received 1000 ltrs. of
               kerosene·oil from his distributor on 28.01.1991. This fact
                                                                                  I
               is borne out from the entry made in column No. 4 of Daily          B
               Stock Register (Mat. Ext. II) and thereby belies the
               statement of P.W. 5 (who was rightly declared as hostile)
               that only 400 ltrs. of kerosene oil was received- during
      ...      business hours. Consequently, taking into account this
               1000 ltrs. of kerosene oil together with 502 ltrs. of kerosene
     f
              oil as opening balance on 28.01.1991 at the shop of the             c
               accused, the figure comes to 1502 ltrs. True of course,
              there is no ocular testimony from the side of the
               prosecution barring production of cash memo regarding
               sale of any kerosene oil by the accused on 28.01.1991
               P.W. 6 (1.0.) having admitted that he did not verify the cash      D
               memo book for the purpose of ascertaining the sale
              transaction on 27.01.1991and28.01.1991, the court is left
              with no cogent material to subscribe to the view of the
               prosecution regarding sale of kerosene oil of 257 ltrs. of
               kerosene oil by the accused on 28.01.1991 and in that              E
l,            view of the matter, it is difficult to conceive that the physical
               stock of kerosene oil at the shop of the accused having
              taken into the aforesaid sale transaction would be 795 ltrs.
              As opposed 450 ltrs. found on measurement. Or, more
               precisely, in the absence of any legal unimpeachable
              evidence as to the expected physical stock of kerosene              F
     -4       oil at the shop of the accused on 28.01.1991 having taken
              into account the sale transaction it is difficult to see eye to
              eye with the version of the prosecution that the physical
              stock of kerosene oil was not in consonance with the
              expected stock. But, the fact remains as has been already           G.
              pointed out that the accused did not maintain the stock
              register showing the opening balance and the
      f       consequence sale from the said quantity to the consumers
              in breach of the mandatory provi$ion of para 12 of the
                                                                                  H
    1448          SUPREME COURT REPORTS                [2008] 17 S.C.R.


A        order and in that view of the matter, he comes under the
         mischief of the provision of the said para."
       It was, however, held that having regard to the fact that the        'r
  Investigating Officer did not verify the-cash memos, the charges
  brought against the ·appellant that the actual quantity of
B kerosene   was found to be short by 795 liters was not proved.
  On the aforementioned findings, a judgment of conviction and
  sentence as indicated hereinbefore was recorded.
         11. An appeal preferred by the appellant before the High                       I
                                                                            !"
    Court was admitted only on the question of sentence.
c   Presumably, with a view to satisfy itself as to whether a case          ~

    has been made out for invoking the proviso appended to
    Section 7(1)(a)(ii) of the Act, the High Court also went into the
    matter and ultimately reduced the quantum of sentence in the
    manner as noticed hereinbefore.
D         12. Mr. Rauf Rahim, learned counsel appearing on behalf
    .of appellant in support of this appeal would raise the following
    contentions:
           i.     As P.Ws. 1 and 2 who were examined as                     i           '
                  independent witnesses in their depositions
E                 categorically stated that the stock of the kerosene
                  oil was written on the display board, the learned trial         .J·

                  judge as also the High Court committed a serious
                  error of law in opining that appellant had
                  contravened condition No. 6 of the licence.
F          ii.      That the prosecution case that the stock register did
                    not contain any entry in respect of 502 liters of
                                                                            +-
                  . kerosene oil having not been.put to appellant while
                    he was examined under Section 313 of the Code
                    of Criminal Procedure, the judgment of conviction
                    recorded for non-maintenance of the stock register
G
                    must be held to be erroneous.
           iii.   The complainant as also S.I. N.K. Sikder who
                  accompanied him having not been examined, the             )
                  prosecution cannot be said to have proved its case.
H                                                                                ·--,
         HARENDRA NATH CHAKRABORTY v. STATE OF WEST1449
                    BENGAL [S.B. SINHA, J.]

              13. Mr. Avijit Bhattacharjee, learned counsel appearing on      A
        behalf of the respondent, on the other hand, would s~pport the
 -<;•   impugned judgment.
              14. The prosecution case as against appellant discloses
        three distinct offences. The opening balance of kerosene oil as
        on 28.1.1991 was not mentioned in the stock register.                 B
        Admittedly, appellant received 1000 liters of kerosene oil from
        the distributor on the same day. However, on physical
        verification the total stock of kerosene oil was found as 450
 ....   liters only. On that date, kerosene oil to the extent of 257 liters
·'f     had been sold. Thus, although the total stock of kerosene oil         G
        should have been 1502 liters but as only 450 liters were found,
        there is a shortage of 795 liters of kerosene oil.
              15. The learned Special Judge, as noticed hereinbefore,
        although found that having regard to the fact that Investigating
        Officer did not verify the cash memo book for the purpose of          D·
        ascertaining the sale transaction on 27.1.1991 and 28.1.1991,
        the prosecution case that the physical- stock of kerosene did
        not tally with the expected stock has not been proved.
;,.          16. As no appeal was preferred by the State against the
        said finding, the same must be held to have attained finality.        E,
        The fact, however, remains and as noticed by the learned
        Special Judge as also by the High Court the entire prosecution
        case was based on documentary evidence as also the material
        objects, which had been seized. The seizure witnesses, namely,
        P.Ws. 1 and 2 might have been declared hostile, but the seizure
        memos had duly been proved. The seized documents had also             F
        been proved. Appellant having been maintaining the said
        documents, when discrepancies occurring therein were pointed
        out to him it was for him to explain the same.
             17. Appellant did not adduce any evidence in defence. It
        has not been denied or disputed that the seized kerosene oil          G
        had been put in the custody of Tapan Chakraborty, son of the
        appellant. He was examined as a prosecution witness as P.W.
        5. Appellant also accepted the said fact. Thus, the amount of
        kerosene which had been seized and kept in the custody of his
                                                                              H
    1450       SUPREME COURT REPORTS                 [2008] 17 S.C.R.


A son has not been denied or disputed. The fact that only 450
  liters of kerosene oil was found in the shop has, thus, been
  proved.                                                                 '(
        18. Submission of Mr. Rauf Rahim that the learned Special
  Judge should have specifically put the prosecution case to
B appellant under Section 313 of the Code of Criminal Procedure
  that the stock register did not contain any entry of 502 liters, in
  our opinion, does not appear to be correct. The prosecution
  ca~e based on the basic primary material which the prosecution
  haa brought on record, namely, raid in the shop, the stock of           ,.    '

c kerosene oil found, the seizure of the display board, stock              \    '
  register, cash memo, etc., had been put to him. Apart from
  making a bald denial that measurement had not been taken or
  that no measurement chart had been prepared he had not
  explained the discrepancies in the stock or non-display thereof.
        We may notice the question Nos. 6, 7 and 8 in this behalf:
D
           "Q-6: It appears further from the statement made by the
                 PW-4 that having examined the oil in stock the
                 register and the stock register it was found that
                                                                           ~-
                 there was a discrepancy of 794 (sic) liters of
                 kerosene oil and for that the officer-in-charge
E
                 seized the kerosene oil found in the shop along with
                 the registers stock and rate bound etc., and
                 prepared a seizu_re list (Ext. 1/4). What do you say
                 in this regard?
           Ans.: This is not true, I am innocent.
F                                           !
           Q-7: It appears further from the statement made by the
                PW Nos. 3 and 4 that the seized kerosene oil was
                put in the custody of Tapan Chakraborty, your son
                (PW-5) by way of a Zimmanama. What do you say
                in this regard?
G
           Ans. Yes, kept.
           Q-8. Having taken the charge to investigate this case the
                ·PW-6 perused(?) the said registers and identified         )·
                 the said cash memo book, stock register and stock
H                board respectively as the Mat. Ext. Nos. I, II and Ill
      HARENDRA NATH CHAKRABORTY v. STATE OF WEST1451
.-               BENGAL [S.B. SINHA, J.]

                in the Court. What do you say in this regard?            A
          Ans: Everything is in order, Sir. The stock board has not
               been brought."
          As all the material evidences brought on record by the
     prosecution had been brought to his notice. It has not been
     shown before us as to how he was prejudiced, parffcularly when      B
     his son was examined as a witness. He could have given his
     side of the story which, according to him, could have proved
     his defence, on the basis of material brought on record.
         Submission of Mr. Rauf Rahim that the judgment of
     conviction and sentence stands vitiated by reason of non-           C
     compliance of the provisions of Section 313 of the Code of
     Criminal Procedure, thus, cannot be accepted.
          In State of Punjab vs. Swaran Singh [(2005) 6 SCC 101],
     this Court was dealing with a matter under NDPS Act. Therein,
     only general questions were put to the accused. Elaborating the     D
     purpose for which an accused is required to be examined under
     Section 313 of the Code, it was stated:
         "Apart from all these, as part of fair trial the accused is
         given opportunity to give his explanation regarding the
         evidence adduced by the prosecution. However, it is not
         necessary that the entire prosecution evidence need be
         put to him and answers elicited from the accused. If there
         were circumstances in the evidence which are adverse to
         the accused and his explanation would help the court in
         evaluating the evidence properly, the court should bring the    F
         same to the notice of the accused to enable him to give
         any explanation or answers for such adverse circumstance
         in the evidence. Generally, composite questions shall not
         be asked to the accused bundling so many facts together.
         Questions must be such that any reasonable person in the
                                                                         G
         position of the accused may be in a position to give
         rational explanation to the questions as had been asked.
         There shall not be failure of justice on account of an unfair
         trial."
         19. Keeping in view the facts and circumstances of this         H
    1452      SUPREME COURT REPORTS                [2008] 17 S.C.R.


A   case and the nature of allegations made against appellant, we
    are of the opinion that no failure of justice has occasioned nor
    the trial was in any way unfair.
        20. Reliance has also been placed by Mr. Rauf Rahim on
    Vikramjit Singh Alias Vicky vs. State of Punjab [(2006) 12
B SCC 306],JNherein this Court while dealing with a case under
  Section 302 of the Indian Penal Code totally based on
  circumstantial evidence, this Court held:
         "It is now a well-settled principle of law that the
         circumstances which according to the prosecution lead to      ,...

c        proof of the guilt against the accused. must be put to him      \
         in his examination under Section 313 of the Code of
         Criminal Procedure."
       21. The prosecution case is purely based on the
  documentary evidence maintained by the accused himself. In
D our opinion, a case of this nature where the prosecution intends
  to bring home the charges on the basis of the documentary
  evidence maintained by the accused himself cannot be
  equated with a case where the accused is charged with
  commission of an offence, the proof whereof is based on                 -..:
  circumstantial evidence alone.
E
       22. Furthermore, as the appeal preferred by the appellant
  was admitted by the High Court only on the question of
  sentence, neither the High Court nor this Court was required
  to go into the merit of the matter. We have done so inter alia
  on the ground that the High Court has also entered into the
F
  merit thereof. That part of the order of the High Court whereby
  a limited notice was issued is not in question. The High Court              )-·
  having taken into consideration the entire facts and
  circumstances of this case reduced the period of imprisonment
  from six months to three months.
G
       Mr. Rauf Rahim would contend that we should invoke the
  proviso appended to Section 7(1 )(a)(ii) of the Act.
         The said provision can be invoked provided the Court is
    in a position to assign special reasons therefor. Such a case,            't
    in our opinion, has not been made out. Appellant is found to
H
          HARENDRA NATH CHAKRABORTY v. STATE OF WEST1453
                     BENGAL [S.B. SINHA, J.]

         have contravened both the 1968 Order as also the 1977 Order.        A
  -",         23. Our attention has been drawn to a decision of this
         Court in Harival/abha & Anr. vs. State of M.P. [(2005) 10 SCC
         330). No reason has been assigned therein. What were the
         special facts and circumstances of their case which persuaded
         their Lordships to invoke the provisions of Section 360 of the      B
         Code had not been stated.
               24. In the facts and circumstances of the case, we are of
    •    the opinion that no case has been made out to invoke the
         proviso appended to Section 7(1)(a)(ii) of the Act particularly
   f
         in view of the fact that appellant was found to have violated the   c
         provisions of both the Orders.
             Appellant was dealing with an essential commodity like
         kerosene.
             If the Parliament has provided for a minimum sentence, the
         same should ordinarily be imposed save and except some              D
         exceptional cases which may justify invocation of the proviso
         appended thereto.
  \',-
              25. In India, we do not have any statutory sentencing policy
         as has been noticed by this Court in State of Punjab vs. Prem
         Sagar & Ors. [2008 (9) SCALE 590). Ordinarily, the legislative      E
         sentencing policy as laid in some special Acts where the
         Parliamentary intent has been expressed in unequivocal terms
         should be applied. Sentence of less than the minimum period
         prescribed by the Parliament may be imposed only in
         exceptional cases. No such case has been made out herein.           F
•-J          26. For the reasons aforementioned, the appeal is
         dismissed. Appellant shall surrender before the learned Special
         Judge for serving out the remaining sentence.
         RP.                                         Appeal dismissed.