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1987 DIGILAW 111 (CAL)

Hirendra Nath Dey Sarkar v. State of Welt Bengal

1987-04-09

MONORANJAN MALLICK

body1987
ORDER This revision is directed against the Older dated 3.5.86 passed by the learned Judicial Magistrate, 7th Court, Alipore, 24-Parganas by which the learned Magistrate bas dismissed the present accused petitioner’s application prayer for discharge from the Criminal Case no. D.E.B.G.R 421(4) 74 T.R. 350/84 under s. 7 of the Essential Commodities Act (Act X of 1955). 2. The petitioner submits that the genesis of the case lies in a complaint made by Sri Satya Bhusan Roy, B.D.O. Sonarpur dated 30.6.74 alleging that on 27.11.73 the compliant caused publication of the Levy Roll in terms of paragraph 4 of West Bengal Food Grain Procurement (Levy) Order, 1973 and in the said Levy Roll the name of the petitioner was published, that the present petitioner along with others in the said Levy Roll were directed to sell the respective quantity of paddy to the D.P. Agent as indicated in the said Levy Roll within 15.1.74 and it was also directed that the producers could make representations before the complaint before 12.12.73. It was further alleged that the petitioner was assessed 32 quintals and 62 kgs of paddy as levy but the petitioner did not submit any representation against the said Levy Roll. It is further alleged that a notice in Form II under sub-paragraph 5 of paragraph 4 of the said Levy Order was issued under Office memo no. 2584 dated 27.12.73 in the petitioner’s name at Village Baishnabghata P.O. Naktola, P.S. Sonarpur, Calcutta 47, District 24-Paraganas although petitioner’s said house was number 396/1, Netaji Subhas Chandra Bose Road, directing him to sell the assessed levy paddy to the local D.P. Agent on or before 15.1.1974. The petitioner submits that no such order was served on him. It is also submitted that the said order was alleged to have been communicated to the present petitioner under certificate of posting. As the present petitioner failed and neglected to sell the assessed levy paddy, the prosecution has been launched as against the petitioner for violating the provisions of West Bengal Food Grains Procurement (Levy) Order, 1973. But when no order was communicated no prosecution would lie. 3. It is further submitted that the investigating Officer submitted his report on 27.9.74 and the same was placed before the learned S.D.J.M. on 12.8.1976. But thereafter the matter is pending for trial for so many years. But when no order was communicated no prosecution would lie. 3. It is further submitted that the investigating Officer submitted his report on 27.9.74 and the same was placed before the learned S.D.J.M. on 12.8.1976. But thereafter the matter is pending for trial for so many years. It is also submitted that the permanent address of the petitioner is at 8/44A, Fern Road, P.S. Gariahat, is usually served with notice for payment of water tax and other incidental matter in his fishery business and that he was never served with any notice in terms of sub-paragraph (5) of paragraph 4 of the Levy Order. The petitioner, on or about 17th January 1984 for the first time was informed through a messenger of the Police at his residence at Fern Road to meet the Officer in charge, Jadavpur P.S. It is also submitted that in terms of sub-s (5) of s. 3 of the Essential Commodities Act 1955 the manner of service of an order directed to an individual shall have to be served on such individual. i) by delivering or tendering it to that individual, or ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by the persons living in the neighbourhood. 4. It is further submitted that the petitioner filed an application before the learned Judicial Magistrate and prayed for discharge from the said case. The learned Magistrate rejected the said prayer of the petitioner and fixed 3.7.86 for framing of charge. Being aggrieved by the said order dated 3.5.86 rejecting petitioner application for discharge and fixing 3.7.86 for framing of charge, the petitioner has moved this Court in revision and obtained the present Rule. 5. The learned Magistrate rejected the said prayer of the petitioner and fixed 3.7.86 for framing of charge. Being aggrieved by the said order dated 3.5.86 rejecting petitioner application for discharge and fixing 3.7.86 for framing of charge, the petitioner has moved this Court in revision and obtained the present Rule. 5. On perusing a copy of the First Information Report annexed to the revision petition, I find that the complainant being the Requiring Authority Block Development Officer has stated in the said First Information Report that "a Notice in form II under sub-paragraph (5) of Paragraph 40 of the said Levy Order was issued on 27.12.73 under the office memo no 2584 dated 27.12.73 by post under Certificate of Posting directing the aforesaid producer to sell 32 quintals 62 kgs of paddy to the said D.P. Agent on or before 15th January, 1974, But in terms of sub-s. (5) of s. 3 of the Essential Commodities Act, it has to be served on the petitioner by delivering or tendering the same to him personally or by affixing it on the outer door or some other conspicuous part of the premises of the individual, and a written report thereof shall be prepared and witnessed by the persons living in the neighbourhood. Admittedly, the impugned Levy Order was issued by post under Certificate of posting to his village address of the petitioner and not to his residential address in Calcutta. The petitioner alleges that he has his residential address at Fern Road, P.S Gariahat, Calcutta. 6. None has appeared to oppose the Rule on behalf of the opposite party. 7. As it appears that there was no proper communication of the Levy order on the petitioner it cannot be said that the petitioner contravened any of the provisions of the said Levy Order find that he should be prosecuted for violation of the same. 8. Therefore, the prosecution cannot be continued against the present petitioner. There is another aspect of the matter. The report of the Investigating Officer was placed before the Learned Sub-divisional Judicial Magistrate in the year 1976 and more than 10 years have lapsed since then. In the circumstances, the prosecution as against the petitioner with reference to the alleged offence cannot be allowed to be continued any further. The impugned prosecution is hereby quashed. The Revision petition is thereby allowed and the Rule is made absolute. In the circumstances, the prosecution as against the petitioner with reference to the alleged offence cannot be allowed to be continued any further. The impugned prosecution is hereby quashed. The Revision petition is thereby allowed and the Rule is made absolute. Rule made absolute; impugned order quashed.