Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 548 (CAL)

Umesh Kumar Gupta v. State of West Bengal

2000-11-10

Amitava Lala

body2000
JUDGMENT Amitava Lala, J. This is a writ petition in connection with the Essential Commodities Act, 1955. According to the petitioner an arbitrary and illegal search and seizure was made by the authority at the sub-centre of the petitioner without having an authorisation or prior permission from the competent authority in terms of the amended ordinance of the Essential Commodities Act, 1955 as also in terms of West Bengal Kerosene Control Order, 1968. 2. The petitioner is a rosene dealer having a kerosene shop at Rajendra Mullick Street, Calcutta- 700 007 within Jorasanko Police Station and running the said business in terms of the licence issued by the office of the Director of Consumer Goods, Food and Supplies Department, Govt. of West Bengal, 11, Mirja Galib Street, Calcutta-700 087. The petitioner was also authorised to sell kerosene oil from a sub-centre at 5, Raja Brojendra Narayan Street, Calcutta-700 007 within Burrabazar Police Station by the said officers. The petitioner was selling kerosene oil against the ration cards as tagged by the competent authority from the said two places and according to them the accounts were also maintained. 3. On 29th July, 1998 officers attached to the Enforcement Branch of Police representing the office of the Deputy Commissioner of Police, Enforcement Branch, 12, Ballygunge Circular Road, Calcutta -700 019 made a search in the sub-centre of the petitioner's kerosene oil shop and seized 110 liters of kerosene oil along with registers, cash memos against the seizure list and arrested two persons. According to the concerned officers at the time of checking of the registers and physical verification at the sub-centre of the petitioner, it was detected that there was a shortage of 1469 litres of kerosene oil and thereby the petitioner had violated the paragraphs 3(a), 4 and 7 of the condition of West Bengal Kerosene Control Order, 1968 and 3(2) of West Bengal Declaration of Stocks and Price of Essential Commodities Order, 1977. Therefore, it is punishable under section 7(i) (a) (ii)/ 8 of Essential Commodities Act. 4. On the basis of the aforesaid allegations, a criminal case was initiated before the learned Sub-Judge under the Essential Commodities Act being case No. 381 dated 29th July, 1998. The two persons were arrested and failed to obtain bail from such Court but ultimately obtained bail from this Hon'ble court and were released upon furnishing necessary bail bonds. 5. 4. On the basis of the aforesaid allegations, a criminal case was initiated before the learned Sub-Judge under the Essential Commodities Act being case No. 381 dated 29th July, 1998. The two persons were arrested and failed to obtain bail from such Court but ultimately obtained bail from this Hon'ble court and were released upon furnishing necessary bail bonds. 5. The petitioner was also impleaded as an accused in the First Information Report. Hence, an application under section 438 of the Code of Criminal Procedure was filed on behalf of the petitioner before the Hon'ble court but the same was rejected. The petitioner was also advised to file a revisional application. The same was filed which is pending for hearing till date. According to the petitioner, the search and seizure as made on 28th July, 1998 was in violation of the paragraph 1& of the West Bengal Kerosene Control Order, 1968 and the said officers did not have required authorisation for the purpose of search and seizure. By a notification published in the Gazette of India on 25th April, 1998 certain amendments were incorporated in the existing Essential Commodities Act. One of such amendments made in clause (j) of sub-section (2) of section 3 of the Essential Commodities Act is as follows: "Provided that where a person authorised under an order issued under this section to make the entry, search, examination or seizure is below the rank of a Magistrate of the First Class or its equivalent, he shall obtain prior permission of an officer not below the rank of a Magistrate of the First Class or its equivalent before making such entry, search, examination or seizure." 6. Therefore, a prior permission from the First Class Magistrate or its equivalent officer or superior to them is necessary for the purpose of such search and seizure. 7. It is contended that the authorities acted without any authority while making entry, search and seizure and therefore, the entire proceeding is bad in law and continuation of the same would be a clear abuse of process of law. It is further contended that inspite of search and seizure there is no obstruction on the part of the Director of the Consumer Goods, Food and Supplies Department, Government of West Bengal in carrying on the business. It is further contended that inspite of search and seizure there is no obstruction on the part of the Director of the Consumer Goods, Food and Supplies Department, Government of West Bengal in carrying on the business. From the facts it is evident that the police authorities made the search and seizure illegally i.e. without any sanction under the law. Hence, under this writ petition basically the petitioner asked for writ in the nature of mandamus declaring the' impugned search and seizure dated 29th July, 1998 illegal, arbitrary, mala fide and without jurisdiction. Therefore, under this writ petition, the petitioner asked for further consequential relief in connection with the two other connected applications being CAN No. 1495 of 1999 and CAN No. 4758 of 2000. I find that the earlier one has been disposed of by the Single Bench of this court on 25th February, 1999. But so far as the other application is concerned, the same has been made for the purpose of early hearing of the writ petition with connected prayers. Since the main writ petition was heard along with the applications by consent of the parties, such application being No. 4758 of 2000 becomes infructuous. 8. The respondent No.3, the real contesting respondent herein i. e. the Office of the Deputy Commissioner of Police, Enforcement Branch has contended in the affidavit that on 29th July, 1998, after being authorised by the Food and Supplies Department, Government of West Bengal and also auhorised by the Deputy Commissioner of Police, Enforcement Branch, a raid was conducted by the officers of the Fuel Section, Enforcement Branch in the shop of the petitioner situated on the ground floor of the premises No.5, Raja Brojendra Narayan Street, Calcutta -700 007. The raiding party was constituted by Officer-in-Charge, Fuel Section -EB, Sir P. K. Sarkar, Inspector; D. K. Ghosh, Sub-Inspector; S.Adhikari, Sub-Inspector; P. K. Sarkar, Assistant Sub-Inspector and the force. 9. In course of the raid, the raiding party entered into the said shop and found two persons. On enquiry, it was found that one of the said persons was the manager of the Baikuntha Show Shop and another person, Nirmal Mahato was an employee of the shop. 9. In course of the raid, the raiding party entered into the said shop and found two persons. On enquiry, it was found that one of the said persons was the manager of the Baikuntha Show Shop and another person, Nirmal Mahato was an employee of the shop. By a written notice served upon them by the raiding party, they were asked to produce (1) Trade Licence (2) Fire Licence (3) Health Licence (4) House Rent Bill (5) Stock Register (6) Toll Sale Cash Memo Register and (7) Log Book etc. in respect of the said shop of the petitioner. The said documents except the Log Book were produced. 10. Then the raiding party checked up the documents and made physical verification of the stock of kerosene oil of the shop. It was found that in the Stock Register and Toll Sale Register there was an entry of opening balance of kerosene oil in total 2519 liters on 27th July, 1998. From the cash memo, it was found that simultaneously 445 litres of kerosence oil (including two percent handling loss) were sold which was not mentioned in those registers. As per stock register and cash memo the next stock of kerosense oil in the said shop should be 2074litres at the time of the raid. But physical verification of stock of kerosene oil in the said shop was found to be only 110 litres (approx.) instead of 2074litres. It was found that there was shortage of 1964litres of kerosene oil in the said shop. As such, the petitioner and his men violated the provisions of clauses 3(a), 4 and 7 of the Conditions of Licence and para 12 of the West Bengal Kerosene Control Order, 1968 and also paragraph 3 (2) of the West Bengal Declaration of Stocks and Price of Essential Commodities Order, 1977 which is punishable under section 7(i) (a) (ii) /8 of the Essential Commodities Act. 11. Then the raiding party seized the incriminating articles including the 110 litres of the kerosene oil and the register produced after preparing a seizure list in the presence of two witnesses named Sk. Alauddin and Sekh Samiruddin. Moreover, the raiding party took samples of kerosene oil and arrested two persons viz. Manager of the Baikuntha Show Shop and the employee, Nirmal Mahato. Alauddin and Sekh Samiruddin. Moreover, the raiding party took samples of kerosene oil and arrested two persons viz. Manager of the Baikuntha Show Shop and the employee, Nirmal Mahato. Written complaint was made and recorded in the case against both the arrested persons and against the petitioner, Shri U.K. Gupta and the later part of the complaint was treated as a part of the First Information Report (FIR). The said criminal cases are still pending before the First Court, Essential Commodities, Calcutta and in the said matter charge-sheet was submitted on 5th of June, 2000. 12. In reply, the petitioner has taken specific case which is relevant to mention that while granting permission for the purpose of investigation, the authority under section 165(1) of the Code of Criminal Procedure requires to record in writing the reasonable grounds of his belief and specify in such writing, as far as possible, the thing for which search is to be made and then, such permission can be granted. In the instant case, the alleged authorisation is clearly suspect a document and no satisfaction of the authority granting such permission has to be found in the said document. 13. In support of the last submission by the petitioner, the Learned Counsel appearing for him cited a decision reported in 1987(27) ELT 369 (Cal) (Bishnu Krishna Shrestha vs. Union of India and Ors.) to draw my attention that there is a difference between the "Reason to believe" and the "Reason to suspect". Therefore, when a question is raised about the justifiability of issue of search warrant, the department must be in a position to produce its records to show that there was material in the possession of the officer concerned on the basis of which he had formed the "Reason to believe". 14. There is a factual difference between the above referred case and the present one. In the above case, the search was challenged. But in the present case, not only search and seizure were made but criminal case was proceeded which was heard and chargesheet was filed before the same. Hence, the search and seizure, whether good, bad or indifferent, already merged with the chargesheet as filed before the criminal court which is in session of the matter. But in the present case, not only search and seizure were made but criminal case was proceeded which was heard and chargesheet was filed before the same. Hence, the search and seizure, whether good, bad or indifferent, already merged with the chargesheet as filed before the criminal court which is in session of the matter. Therefore, whether the search or seizure proceeded wrongly or rightly or whether there is "Reason to believe" which 'cannot be equated with "Reason to suspect" in case of search and seizure is a matter for consideration by the court whereunder the case in subjudice. 15. A point has been raised before this court that the chargesheet was filed while the writ petition was pending before this court. However, the pendency of the writ petition cannot by any bar for the purpose of filing of the chargesheet before the appropriate criminal court hearing the matter. 16. A case reported in (2000) 2 SCC 636 (G. Sagar Suri and Anr. vs. State of UP and Ors.) where it was held by the Supreme Court of India that jurisdiction under section 482 of the Code of Criminal Procedure has to be exercised with great care. The High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. The Supreme Court has laid down principles on the basis of which the High Court has to exercise his jurisdiction under section 482 of the Code. Jurisdiction under section 482 has to be exercised to prevent abuse of process of any court or otherwise to secure the ends of justice. Section 482 of the Code or Article 227 of Constitution of India will be invoked to quash the proceeding when no offence has been made out against them and still they undergo the agency of the criminal trial. 17. Section 482 of the Code or Article 227 of Constitution of India will be invoked to quash the proceeding when no offence has been made out against them and still they undergo the agency of the criminal trial. 17. Therefore, if the above is the latest position of the Supreme Court judgments in respect of interference with the criminal proceeding pending before the appropriate criminal court even under section 482 of the Code which is made essentially for the criminal cases can it be said such principle will be applicable very frequently on a superficial basis under Article 226 of Constitution of India ? It is to be remembered that in the instant case certain positions are admitted which are as follows: (a) Search and seizure was made; (b) Criminal case was filed; (c) Bail was refused which was subsequently granted by the High Court; (d) Bail in respect of the petitioner was rejected even by the High Court; (e) Revisional application was filed which is still pending; (f) Physical verification of the kerosene oil was made and found shortage; (g) Chargesheet was filed; 18. As a counter against the aforesaid case which are materially criminal in nature the defence is that for the purpose of search and seizure there should be a prior permission from the authority concerned which is a disputed question of fact and particularly disputed by the authority in the affidavit-in -opposition under paragraph 7(i) by saying" that on 29.7.98 after being authorised by the Director of Consumer Goods, Food and Supplies Department, Government of West Bengal, and also authorised by the Deputy Commissioner of Police, Enforcement Branch a raid was conducted by the officers of the fuel section, Enforcement Branch in the shop of the petitioner situated on the ground floor of premises No.5, Raja Brojendra Narayan Street, Calcutta". 19. Under such circumstances, the writ court not being a fact finding court can not decide as to whether the permission so granted can be quickly carried out or not as criticised by the learned Counsel appearing for petitioner. It has no basis whatsoever for the purpose of invoking writ petition of this court. 20. So far as the invocation of the writ jurisdiction is concerned till today the court is guided by the well-known judgment of the Supreme Court of India is State of Haryana vs. Bhajanlal, reported in 1992 Supp. It has no basis whatsoever for the purpose of invoking writ petition of this court. 20. So far as the invocation of the writ jurisdiction is concerned till today the court is guided by the well-known judgment of the Supreme Court of India is State of Haryana vs. Bhajanlal, reported in 1992 Supp. (1) SCC 335, whereunder it is observed as follows: "In the backdrop of the interpretation of the relevant provisions of the Code under chapter XIV and all the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of my raid accounts of cases wherein such power should by exercised. (1) Where the allegations made in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected/quoted in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improper on the basis of which no prudent person can never reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) therefore, institution and continuation of the proceedings and/or where there is a specific provision in the Code or the Act concerned providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest and rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the external or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice". 21. Now, let us confine the case to ascertain as to whether the same is falling under the four corners of such well-settled principles or not. Out of the seven grounds as aforesaid I do not think that except the ground No.6 others requires any analysis at all. 22. Therefore, I have to confine the subject to the point No.6 as above, According to the petitioner, the search and seizure as conducted on 29th July, 1998 is in violation of paragraph 15 of the West Bengal Kerosene Control Order, 1968 read with amended clause being clause (j) of sub-section (2) under section 3 of the Essential Commodities Act. Such amendment was introduced in the notification on 25th April, 1998 when cause of action arose on 29th of July, 1998. Such amendment was introduced in the notification on 25th April, 1998 when cause of action arose on 29th of July, 1998. The amended section as aforesaid speaks that for the purpose of entry, search, examination or seizure by an officer below the rank of the Magistrate of First Class or equivalent, he will obtain prior permission of an officer not below the rank of the Magistrate of the First Class or its equivalent. To understand the position I have also gone through paragraph 15 of the West Bengal Kerosene Control Order, 1968, I find that the Director or the District Magistrate are the appropriate persons for the purpose of giving permission for search and seizure. 23. Under such circumstances, I have to see whether any permission was given at all or not. It appears to me that such permission was granted by the Director of Consumer Goods, Food and Supplies Department, Government of West Bengal being respondent No.2 herein on the date of the happening i.e. 29th July, 1998 being Annexure 'R 3' to the affidavit-in-opposition. Therefore, the compliance of law is there. It is also needless to mention that both the Essential Commodities Act, 1955 and the West Bengal Kerosene Control Order, 1968 provide provisions of appeal. In any event, the case does not rest on a question of alternative remedy being the appellate form but invocation of writ jurisdiction for the purpose of quashing the entire proceedings. Since, I do not find any ambiguity on the particular question of law I am not inclined to interfere with the same. 24. It has been specified hereunder that a lot of criticisms were made in respect of the activities of the State machinery by the learned Counsel appearing for the petitioner when it appeared that the permission was granted on 29th July, 1998 and other activities including search and seizure were held on the very same day although all the officers including the Directors are placed in different areas of the city of Calcutta. But this court not being the fact finding court cannot interfere with the same only for the purpose of holding that intention of the authority was mala fide and out of personal grudge or malice. But this court not being the fact finding court cannot interfere with the same only for the purpose of holding that intention of the authority was mala fide and out of personal grudge or malice. It is also difficult to the writ court to come to such finding superficially without investigation of facts as to whether the activities on the part of the officers are really the same or otherwise. Moreover, there is no embargo upon the petitioner to raise such questions before the appropriate court for the purpose of coming to an appropriate conclusion. 25. Thus, I do not hold that the submission as made by the petitioner sound to get support of the Bhajanlal's case being the parameters of considerations about the applicability of jurisdiction of the writ under Article 226 of the Constitution of India or discretion of the High Court under section 482 of the Code of Criminal Procedure. This is far more established by the further judgment until now. 26. Therefore, I dismiss the writ petition and interim order, if any, stands vacated in view of the effect of this application. The connected CAN No. beaming .4758 of 2000 "as already declared infructuous" is also dismissed. However, no order is passed as to costs. 27. Let an urgent xerox certified copy of this order, if applied for, be given to the Learned Advocates for the parties within two weeks from the date of submitting of the requisites. Writ petition dismissed.