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1995 DIGILAW 176 (CAL)

S. P. SINGH v. STATE

1995-05-17

ARUN KUMAR DUTTA

body1995
ARUN KUMAR DUTTA, J. ( 1 ) BY this Revisional Application under Ss. 401/482 of the Code of Criminal Proce dure, 1973 (hereinafter REFERRED TO as Code), the Petitioners-accused (hereinafter REFERRED TO as Petitioners) have prayed for quashing of the relevant Proceedings, being G. R. Case No. 1623 of 1994 pending before the Learned Judge, First Special Court (E. C. Act) Calcutta, arising out of Hastings P. S. Case No. 165 dated 2-7-1994, on the grounds made out therein. ( 2 ) IT is contended by the petitioners that the petitioner No. 1 is a partnership firm of which the other Petitioners are partners, and they were granted licence No. AGT/cal/66 dated 16-2-1989 under the provisions of the West Bengal Kerosene Control, Order, 1968 (hereinafter shortened into Order of 1968) to act as an Agent of the Indian Oil Corporation for distribution of kerosene to the Licensed Dealers under the public distribution system. The said Licence is valid, being extended from time to time by the opposite-party No. 2, the Licensing Authority. ( 3 ) THE opposite-party No. 2, the Director of Consumer Goods, West Bengal, with various other police officers, had held a raid at the petitioners' storage-cum-godown at S-3, St. George Gate, Fort William, Calcutta-700 021 (although it was shown to be at B. 6, Garrison Bazar, Fort William, Calcutta- 700 021) from 23-30 hours of 1-7-1994 to 1-30 hours of 2-7-1994, and it was allegedly detected that the petitioners were attempting to convert blue kerosene oil to white kerosene oil. Some of the accused persons were found during the said raid to be in the act of adulterating kerosene oil by converting blue kerosene oil to white in order to dispose of the same in open market at higher prices. A number of articles had also been seized during the said raid. The petitioners-accused, along with others, have thus been prosecuted for aiding and abetting each other for running of clandestine business of adulteration of kerosene oil by violating the conditions of licence and the directions laid down in paras 12 and 14 of the Kerosene Control Order of 1968, punishable under Ss. 7 (1) (a) (ii)/8 of the Essential Commodities Act, 1955 (hereinafter REFERRED TO as E. C. Act) on the allegations made in the FIR. 7 (1) (a) (ii)/8 of the Essential Commodities Act, 1955 (hereinafter REFERRED TO as E. C. Act) on the allegations made in the FIR. ( 4 ) IN view of the aforesaid allegations, the licence of the petitioner No. 1 was suspended under Para 9 of the Order of 1968. But the Opposite-party No. 3 had eventually revoked the order of suspen sion of the petitioners' Licence by his order dated 10/08/1994 after giving the Petitioner No. 1 an opportunity of being heard in the matter in terms of the proviso thereto, holding that the charges framed against the petitioner No. 1 were not substan tiated since the opposite-party No. 5 had failed to prove the charge prima facie beyond any reasonable doubt. The licence of the petitioner No. 1 was, therefore, allowed to continue pending final order by the Special Court in terms of the said order. ( 5 ) THE relevant proceedings before the court below is now sought to be quashed by the petitioners only on the ground that since the order of suspension of licence of the petitioner No. 1 was revoked by the concerned Authority in terms of Paragraph 9 of the aforesaid Order of 1968, the relevant Criminal Pro ceedings on the same allegations is liable to be quashed as a matter of course. The learned Advocate for the petitioners, Mr. Alok Kumar Sengupta, had REFERRED TO the decisions in Bhabnesh Kumar alias Pappu v. Union of India, Crimes XI-1992 (3) 777, S. K. Sinha v. S. K. Singhal Crimes IV-1987 (1) 842 Kishorilal Bihani v. The Additional Collector and District Magistrate, Kanpur, AIR 1969 All 159 : (1969 Cri LJ 449), Uttam Chand v. The Income-tax Officer, Central Circle, Amritsar, (1982) 133 ITR 909, and M/s. Warren Tea Ltd. v. A. B. K. Bihari Chand, 1994 C CR LR (Cal) 7 in support of the aforesaid plea. But the aforesaid decisions would be of little avail to the petitioners for the reasons I shall presently discuss. But the aforesaid decisions would be of little avail to the petitioners for the reasons I shall presently discuss. ( 6 ) FOLLOWING the observations of the Supreme Court in Uttam Chand's case that in case the Depart mental Authorities on a particular set of facts come to the conclusion that there is no case it cannot initiate prosecution on the same set of facts and evidence, and if at all it happens, such proceedings would be a fit case for quashing, the Delhi High Court in the case of Bhabnesh Kumar alias Pappu (supra) had held that it is now settled by the pro nouncement of that court as well as of the Supreme Court that once Administrative Tribunal or Adjudi cating Authority has exonerated the petitioner, then on the same facts and materials Criminal Proceed ings cannot continue and have to be ordered to be dropped on the principle that the criminal court should not reappraise the whole evidence which has already been gone into by the Adjudicating Author ity. ( 7 ) THE Delhi High Court relying upon the deci sion of the Supreme Court in Uttam Chand's case had also earlier held in S. K. Sinha's case (supra) that it is not legal to prosecute the Petitioner for a criminal offence on the same set of facts and evi dence when he has been exonerated of the offence by the Departmental Authority. The petitioner therein had sought for quashing of a Criminal Proceedings before a Metropolitan Magistrate for an offence punishable under S. 135 of the Customs Act. In that case the Collector of Customs had imposed a fine upon the Petitioner in an Adjudication Proceedings on the same allegations. The fine imposed by the Collector was reduced by the Board by way of appeal. The appeal by he petitioner there against before the Customs, Excise and Gold Control (Appellate) Tribunal, New Delhi, was eventually al lowed by the said Appellate Tribunal. The facts and the evidence on which the Petitioner was being prosecuted before the criminal court were in no way different than what was adjudicated upon by the Departmental Authority. The appeal by he petitioner there against before the Customs, Excise and Gold Control (Appellate) Tribunal, New Delhi, was eventually al lowed by the said Appellate Tribunal. The facts and the evidence on which the Petitioner was being prosecuted before the criminal court were in no way different than what was adjudicated upon by the Departmental Authority. The Learned Judge, in the aforesaid facts and circumstances, had observed that he failed to understand as to how on the same set of farts and evidence, the department can foist criminal liability upon a person about whom it has accepted that on this set of facts and evidence he cannot even be proceeded against in the adjudication proceed ings. In criminal matters the degree of proof re quired is far more strict. If the departmental author ity has no good case, for purposes of adjudication, it cannot claim to have a good case for purposes of criminal prosecution, particularly when the pros ecution is also based on the same set of facts and evidence. It will be most unjust to require the peti tioner to go through the entire process of prosecution in the circumstances of this case. This might virtu ally amount to prosecution and in my view this will amount to abuse of the process of the court. I am in complete agreement with the observations so made by the Learned Judge for the reasons stated therein. ( 8 ) FOLLOWING the decision in Uttam Chand's case before the Supreme Court and those in Prakash Chand v. Income-tax Officer, A-I Sonepart, (1982) 134 ITR 8 , and in Kashiram Wadahwa v. Income-tax Officer, Kurukeshtra, (1984) 145 ITR 109 of the Punjab and Haryana High Court I had also quashed a Criminal Proceedings in M/s. Warren Tea Ltd. v. A. B. K. Bihari Chand, Commissioner of Income -tax, 1994, C Cr LR (Cal) 79 on the penalty imposed by the Authority concerned under S. 271 (1) (C) of the Income-tax Act in a penalty proceedings being set aside by the Appellate Authority on the principle that if there was no concealment, the Criminal Pro ceedings against assessee on the same allegations could not continue, and were liable to be quashed. It was held if there was no case for sustenance of penalty, it equally would not be a case, for criminal prosecution. It was held if there was no case for sustenance of penalty, it equally would not be a case, for criminal prosecution. ( 9 ) BUT the aforesaid decisions REFERRED TO by Mr. Sengupta are clearly distinguishable from the case at hand. In the relevant case before us, the suspension of the petitioners licence had been revoked by the Authority concerned under para 9 of the West Ben gal Kerosene Control Order, 1968. While revoking an order of suspension of licence thereunder the Authority concerned (the Director or the District Magistrate concerned) cannot be said to be acting either as an Adjudicating Authority or as an Admin istrative Tribunal thereunder. It is neither open to them to adjudicate any matter hereunder. The Au thority concerned under the aforesaid Para 9 could only temporarily suspend the licence, cancel a licence, or revoke the order of suspension of the licence in terms thereof upon materials collected and presented before it within the stipulated period of 30 days from the date of suspension of the licence, as specified therein, in terms thereof. The Authority concerned thereunder could thus act in terms thereof only on the basis of the materials collected and presented before him within the aforesaid specified period of 30 days from the date of suspension of the licence, whereas a criminal case on the same allega tions may proceed on evidence and materials col lected even thereafter. The Criminal Proceedings in such a case might not be based on the same set of facts and evidence on which the Authority con cerned acts under paragraph 9 of the aforesaid Order of 1968; but also on other materials/evidence which may be presented before the court at the appropriate stage. The degree and standard of proof in a Crimi nal Proceedings on similar allegations would be far more strict than those on which the Authority con cerned is required to act under para 9 of the aforesaid Order. An order passed by the concerned Authority under paragraph 9 of the aforesaid order could neither be deemed to be an order passed in an Adjudication Proceedings, in the aforesaid circum stances. An order passed by the concerned Authority under paragraph 9 of the aforesaid order could neither be deemed to be an order passed in an Adjudication Proceedings, in the aforesaid circum stances. ( 10 ) IT would be pertinent, in this context, to refer to paragraph 9 of the West Bengal Kerosene Control Order, 1968 which reads as follows : - cancellation or suspension of licence : "if it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this order or any condition of the licence or any direction given under paragraph 12 of this order, he may forthwith temporarily suspend the licence : provided that the agent or the dealer whose licence has been so suspended shall be given an opportunity of being heard before cancellation of the licence or revocation of the order of suspension of the licence finally by an order in writing to be made within 30 days from the date of suspension of the licence. The order shall be passed ex parte if the dealer whose licence has been so suspended fails to appear at the hearing. " ( 11 ) THE aforesaid paragraph being, what it is, the authority named therein (the Director or the District Magistrate concerned) could act thereunder "if it appears" to them that an agent or a dealer has indulged in any malpractice or contravened any provision of the order or any condition of the licence or any direction given under paragraph 12 of the Order. The Authority concerned cannot clearly, therefore, enter into the merits of the alleged mal practice or contravention. He has to form a prima- facie opinion as to the alleged malpractice or contra vention for action thereunder only fact the limited purposes of temporarily suspending the licence, canceling the licence, or revoking the order of suspension of the licence within the period of 30 days from the date of the suspension of the licence, as specified therein. He cannot clearly, therefore, consider any other material collected in support of the alleged malpractice/contravention beyond the aforesaid specified period of 30 days, as already indicated above. He cannot clearly, therefore, consider any other material collected in support of the alleged malpractice/contravention beyond the aforesaid specified period of 30 days, as already indicated above. But a criminal prosecution for any such alleged malpractice or contravention may pro ceed on the basis of materials/evidence collected and presented before the appropriate court at the appropriate stage even beyond the aforesaid speci fied period of 30 days. ( 12 ) AS against the aforesaid provision of para 9 of the aforesaid order, in a penalty proceedings under S. 271 of the Income-tax Act, 1961 (hereinaf ter REFERRED TO as I. T. Act) the appropriate authority mentioned therein can act thereunder "if he is satis fied" that any person - (A) "has failed to comply with a notice under Sub-Sec. (1) of S. 142 or Sub-Sec. (2) of S. 143 or fails to comply with a direction issued under Sub-Sec. (2a) of S. 142; or (b) has concealed the particulars of his income or furnished inaccurate particulars of such income. "similarly, in a confiscation proceedings under S. 6a of the Essential Commodities Act, 1955, the Collector may order confiscation of the essential commodities in terms thereof "if he is satisfied" that there has been a contravention of the order. So also the adjudicating Authority in an Adjudication Pro ceedings under the Customs Act. The aforesaid Authorities could act under the relevant provisions of the aforesaid Statutes "if they are satisfied" as to the alleged non-compliance/concealment/contraven tion/violation etc. of the relevant provisions of the relevant statutes. Such authorities are, therefore, required to go into the merits of the matter and come to a finding and decide whether there has been any non-compliance/concealment/contravention/viola tion of the relevant provisions of the aforesaid Stat utes. But the Authorities mentioned in paragraph 9 of the aforesaid order of 1968 could act in terms thereof "if it appears" to them that there has been any malpractice or contravention in terms thereof. The said authorities are not required to be satisfied as to whether there has been any malpractice or contra vention, as contemplated in the aforesaid Order. They are neither required to go into the merits of the matter and come to a finding and decide whether there has been any malpractice or contravention in terms thereof. The said authorities are not required to be satisfied as to whether there has been any malpractice or contra vention, as contemplated in the aforesaid Order. They are neither required to go into the merits of the matter and come to a finding and decide whether there has been any malpractice or contravention in terms thereof. As already noted, the said authorities can act thereunder if it appears to them on the materials collected and presented before them within the specified period of 30 days from the date of suspension of licence that there has been any mal practice or contravention thereunder. The malprac tice or contravention attracting the provisions of paragraph 9 of the West Bengal Kerosene Control Order, 1968 could not thus be said to have the same legal incidence and consequences and the same nature and character as the contravention punishable by S. 7 of the E. C. Act, 1955. The two provisions, i. e. paragraph 9 of the aforesaid Order of 1968 and S. 7 of the E. C. Act, to my judgment, could neither be held to be in pari materia. For much the same reasons and logic, the provisions of paragraph 9 of the aforesaid order of 1968 and S. 271 of the I. T. Act could neither be held to be in pari materia either. ( 13 ) THE following observations of the Supreme Court in P. Jayappan v. S. K. Perumal, First Income- tax Officer, Tuticorin, AIR 1984 SC 1693 : (1984 Tax LR 1197), seem worth bearing in mind in this context :"in the criminal case all ingredients of the of fence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regard to the result of any proceedings under the Act (Income-tax Act) having a bearing on the question in issue and in an appropriate case if may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it. " ( 14 ) IT would also be pertinent to refer to the decision of the Patna High Court in Lal Bahu Tewari v. State of Bihar, 1990 Cr LJ 1997, holding that the dropping of confiscation proceedings by the Collec tor under S. 6a of the Essential Commodities Act has no effect on the Criminal proceedings. I com pletely concur with the said view. The Collector under the aforesaid provision can make an order of confiscation in terms thereof "if he is satisfied" that there has been the alleged contravention. He is an Adjudicating Authority thereunder for that limited purpose. But, as already indicated above, an order passed by the Authority concerned under para 9 of the order of 1968 cannot be held to be an order passed in an Adjudication proceeding in that sense. As noted, such an authority can pass an order there under "if it appears to him" (without being satisfied) that there has been the alleged contravention. The authority concerned under para 9 of the aforesaid order could neither be held to be an Adjudicating Authority for passing an order thereunder. An order passed by him thereunder clearly, therefore, stands cm a lesser and weaker footing than an order passed by the Collector in a confiscation proceeding under S. 6a of the E. C. Act. In the aforesaid circumstances and for much the same reasons stated by the learned Judge in the aforesaid decision, the revocation of an order of suspension of licence under paragraph 9 of the aforesaid Order of 1968 (on the basis of materials available within the specified period of 30 days) could have no effect on the relevant Criminal Pro ceedings on similar allegations, which may be based on other materials/evidence as well which may be presented before the appropriate court at the appro priate stage. An order passed under para 9 of the aforesaid Order of 1968 is quite independent of an unconnected with the relevant Criminal Proceed ings for the contravention alleged therein. So if an order of suspension of the licence is revoked under para 9 of the aforesaid order it could have no effect on the Criminal proceedings on similar allegations. An order passed under para 9 of the aforesaid Order of 1968 is quite independent of an unconnected with the relevant Criminal Proceed ings for the contravention alleged therein. So if an order of suspension of the licence is revoked under para 9 of the aforesaid order it could have no effect on the Criminal proceedings on similar allegations. If the authority concerned acting under para 9 of the aforesaid order is a statutory Authority, so is the Special Judge dealing with the relevant case under S. 7 of the E. C. Act, 1955. They both being statutory authorities, the finding of the authority concerned under para 9 of the aforesaid order, in the absence of any law, cannot be said to be binding on the special Judge exercising his judicial discretion while deal ing with a case for an offence under the provisions of S. 7 of the E. C. Act, 1955. The special Judge, being a judicial authority, has to exercise his judicial discretion in dealing with/trying an offender under the provisions of S. 7 of the aforesaid Act on the basis of materials placed before him in the course of the trial. The law never contemplates that a judicial Authority should surrender its discretion in the mat ter to the statutory authority exercising power under paragraph 9 of the aforesaid Order of 1968; and is obliged under the law to blindly follow the prima facie finding of the latter (statutory authority) in connection therewith. The two jurisdictions are en tirely different. As already noted, the authority concerned under para 9 of the aforesaid order of 1968 may only temporarily suspend the licence, cancel the licence, or revoke the order of suspension of the licence in terms thereof in the manner indicated therein. He cannot convict a person for contraven tion of the Order and sentence him to imprisonment or impose any penalty prescribed for the alleged offence. Under S. 7 of the P. C. Act the competent court can convict a person, and sentence him to imprisonment or impose any penalty prescribed thereunder. He cannot convict a person for contraven tion of the Order and sentence him to imprisonment or impose any penalty prescribed for the alleged offence. Under S. 7 of the P. C. Act the competent court can convict a person, and sentence him to imprisonment or impose any penalty prescribed thereunder. Merely because the authority concerned has chosen not to cancel the licenee under para 9 of the aforesaid Order of 1968 (on the materials before it), it does not mean that the Special Judge cannot convict a person under S. 7 of the aforesaid Act for contravention of paragraph 14 of the aforesaid order (on the evidence presented before him ). There could be no denying that the power exercisable under paragraph 9 of the aforesaid Order of 1968 is sum mary in nature in the sense that it is to be exercised only for the limited purposes of temporary suspen sion of the licence, cancellation of the licence, or revocation of the order of suspension of the licence. Paragraph 9 of the aforesaid order does not envisage a regular trial, and it has nothing to do with the merits of the criminal case even though temporary suspen sion of the licence or cancellation of the licence may have penal consequences. ( 15 ) IN view of the discussions above, I am unable to persuade myself and to accept the submissions of Mr. Sengupta, the learned advocate for the petition ers, that the relevant Criminal Proceedings are liable to be quashed merely because the Director con cerned by his order dated 10/08/1994 had revoked the order of suspension of the licence of the petitioner No. 1 for the reasons recorded therein under para 9 of the West Bengal Kerosene Control Order, 1968. The First Information Report in the relevant Criminal Proceedings, as it is, seem prima facie, to make out the alleged offence. This Court, in this proceedings, could not be called upon to con sider the Chemical Examination report, enter into the merits of the matter, and decide whether there has been any contravention, as alleged in the FIR, or not, which are matters to be considered by the court below upon materials/evidence to be presented by the prosecution before it at the appropriate stage. ( 16 ) IN view of the discussions above, the Revisional Application should clearly fail, as it must. ( 16 ) IN view of the discussions above, the Revisional Application should clearly fail, as it must. The Revisional Application accordingly fails and be thus rejected. Interim stay granted in the matter by order dated 30-8-94 stands vacated. Since the relevant proceedings stood stayed during the pendency of the Revisional Application, the inves tigating Agency and the court below shall seek to expedite the same. The application filed by the petitioners for recalling and/or modification of the order dated 3-2-1995 also stands accordingly dis posed of. Application dismissed.