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1982 DIGILAW 202 (CAL)

Kirodimmll Agarwalla v. State

1982-06-04

JYOTIRMOYEE NAG

body1982
ORDER This is an application on behalf of the State with a prayer for recalling an order dated 25.5.82 passed by this Court in connection with Criminal Revision Case No. 913 of 1982. The petitioner in the above case (Criminal Revision Case No. 912 of 1982) is the owner of a shop styled as M/s Mangturam Krirodimall at 2B, Rabindra Sarani, Terethi Bazar, Calcutta. This firm carries on business in edible oils amongst other articles. It is the case of the petitioner that he had obtained Trade Licence from the Corporation of Calcutta and also a Licence from the Rationing Department for dealing in edible oils under the Dealers Licensing Order, 1977. It is the further case of the petitioners that the petitioner purchased edible oils in bulk from the whole-sellers in barrels and re-packed the same in tins for convenience of selling to intending purchasers. On 17.5.82 some Police Officers of the Enforcement Branch, Calcutta raided the shop of the petitioners at 14.30 hours and seized 45 tins of palm oil containing 15.5 kgs. in each tin and also seized 105 tins of refined rape seed oil containing 155 kgs. in each tin along with the stock and rate board of the said firm together with other documents. As the petitioner could not produce his licence and other documents to show that he had legal authority to possess edible oil before the Police Officers, the petitioner was arrested and enlarged on bail later by the learned Magistrate. On 20.5.82 the petitioner made an application before the learned Magistrate for return of the seized oil. The petitioner contended that he had purchased the oil from Shakti Oil Co of 13, Russa Road, 3rd Lane, Calcutta-33 and from Pradip Traders of P-45 Strand Bank Road, Calcutta and that the goods were delivered to the petitioner's firm under challans, that the said quantity of oil was duly entered in the books of account of the firm and hence there was no violation of law. The learned Magistrate on 20.5.82 on the application for return of the seized articles called upon the investigating officer to submit it report by 27.5.82 although the Investigating Officer was present in Court on that date. It is contended on behalf of the petitioner that in fact amounted to rejection of the application for return of the goods. The learned Magistrate on 20.5.82 on the application for return of the seized articles called upon the investigating officer to submit it report by 27.5.82 although the Investigating Officer was present in Court on that date. It is contended on behalf of the petitioner that in fact amounted to rejection of the application for return of the goods. Be that as it may, the petitioner moved an application before this Court on 24.5.82 and after hearing both the parties including the learned Advocate for the State who, however, could not give much assistance as he did not receive any instructions from the Investigating Officer in time the order dated 25.5.82 was passed by this Court. 2. Mr. Sankardas Banerjee, learned Counsel appearing for the petitioner produced the licence on behalf of the petitioner, the challans in respect of the seized goods and also the Municipal Trade Licence. On being satisfied, the said order dated 25.5.82 was passed to the effect that the seized goods may be returned to the petitioner on his executing a bond to the satisfaction of the learned Magistrate and if necessary some specimen may he kept by the Investigating Officer for the purpose of investigation. After this order was passed and I believe the bond was executed before the learned Magistrate, the application in question for recalling the said order was made on behalf of the State. 3. It is contended on behalf of the Slate that this order dated 25.5.82 for release of the goods was obtained by suppression of material facts and fraud was played upon this Court by production of forged documents and challans if the true state of facts were disclosed to the court, this order would not have been passed. On the other hand, a preliminary objection is taken by Mr. Sankardas Banerjee appearing on behalf of rile petitioner. It is contended by Mr. Banerjee that once the Court has passed an order and signed the same S. 362 of the Code of Criminal Procedure is a bar to altering, the same and in this connection. Mr. Banerjee has cited several cases both of the Supreme Court and this Court. These cases are reported in AIR 1981 SC 736 , AIR 1978 SC 1310, AIR 1975 Cal 662 and AIR 1969 Patna 415. 4. On behalf of the State, Mr. Mr. Banerjee has cited several cases both of the Supreme Court and this Court. These cases are reported in AIR 1981 SC 736 , AIR 1978 SC 1310, AIR 1975 Cal 662 and AIR 1969 Patna 415. 4. On behalf of the State, Mr. Arun Prakash Chatterjee learned Senior standing Counsel has submitted that S. 362 Cr P.C. has no application to this case inasmuch as the order passed is neither a judgment nor a final order disposing of the case. True, it is not a judgment. Now, the question is whether it is a final order disposing of a case. In this connection Mr. Arun Prakash Chatterjee, learned Senior Standing Counsel certain excerpts from a reported decision of the Federal AIR 1939 Federal Court 43 at page 49 "The real test for determination as to whether the judgment or order as made, finally disposes of the rights of the parties. If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order. The test of finality is whether the order finally disposes of the rights of the parties. The final order may be either in civil or criminal case. Therefore, the definition given in 47 Cal page 918 in connection with a civil case applies to criminal case as well, by analogy". 5. On a consideration of the principles laid down in this case and also on a consideration of the Supreme Court cases cited by Mr. Banerjee which relate only to judgments and not to orders such as the present one which can not be said to be a final one. I hold that I am not debarred from altering the order passed by me on 25.5.82. Now, to go into the merits of the case, I now find that on 25.5.82 the Investigating Officer was not present before the learned Metropolitan Magistrate and hence the learned Magistrate fixed 27.5.82 for submitting a report by the Investigating Officer in regard to the return of the seized oil made by the petitioner. Now, to go into the merits of the case, I now find that on 25.5.82 the Investigating Officer was not present before the learned Metropolitan Magistrate and hence the learned Magistrate fixed 27.5.82 for submitting a report by the Investigating Officer in regard to the return of the seized oil made by the petitioner. It is further submitted on behalf of the State that the proprietor of M/s. Mangturam Kurodimull could not produce or show any Trade Licence to the Investigating Officer for dealing in edible oil although he was present at the time of inspection of the said firm nor did he show any challan to justify his contention that his acquisition of the edible oil is bona fide, namely 105 tins refined rape seed oil containing 15.5 kg,. each upon each of these tins there was a label written in Bengali. "The State Trading Corporating Ltd" and 45 tins of R.B.D. Palm Oil containing 15.5 kgs. Each. The quantity of palm oil was not shown in the stock-register nor was it shown in the stock-cum-rate board. In the stock register and the stock cum rate board the number of refined rape seed oil was shown as 155 tins but on physical verification only 105 tins were found. It is further contended that 105 tins of rape seed oil with the label "State Trading Corporation" thereon, seized from the petitioner, the proprietor of the firm and the quantity of oil imported by the State Trading Corporation Ltd. is to he distributed only through West Bengal Essential Commodities Supply Corporation Ltd to the Ration shops for consumption of Ration Card holders. That the edible oil earmarked for West Bengal Essential Commodities, Supply Ltd. is not allowed to be stored by anyone other than West Bengal Essential Commodities Supply Corporation Ltd. through its direct agents and is not permitted to be sold or distributed except through the Public Distributing Agency. It now appears that the Investigating Officer has made a prayer under S. 6A of the West Bengal Essential Commodities Act before the learned Collector, 24 Parganas for drawing up a proceeding in connection with the seized oil, now lying in the Mal Khana. So far as this contention is concerned, on 25.5.82 when the order in question was passed by this Court there was no reference made to the Collector. So far as this contention is concerned, on 25.5.82 when the order in question was passed by this Court there was no reference made to the Collector. It is only on 29.5.82 that this reference was made by the Collector so that cannot be a ground for recalling the order. As the order in question is not a final order disposing of the case, it is permissible for this Court to recall it and I must held that in the facts and circumstances now disclosed in the affidavit-in-opposition and also supplementary affidavit, I am constrained to recall my order. I accordingly allow the prayer of the State. 6. In the result, this application is allowed and the application of the petitioner is dismissed. The bond if executed by the petitioner may be cancelled by the learned Magistrate. Let this order be communicated to the learned Magistrate immediately. Application allowed.