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2001 DIGILAW 656 (CAL)

R. K. Kedia @ Raj Kumar Kedia v. State

2001-10-10

D.P.SENGUPTA

body2001
JUDGMENT D.P. Sengupta, J. 1. In the present application the petitioners have come up for quashing of the proceeding in E.B.G.R. Case No. 46 of 1981 under section 7(1)(a)(ii) of the E.C. Act pending in the court of the learned Judicial Magistrate, 2nd Court, Alipore. 2. The prosecution case is that the accused petitioners violated the provision of para 3(2) read with para 2(a) of the West Bengal Cement (Licencing and Control) Order, 1979 made under section 3 of the Essential Commodities Act of 1955, by purchasing 25 M.T. of cement in between the period May 1980 to June 1980 from different agencies as bulk consumer and consumed the same for constructing their multistoried building at 10, Belvedere Road, Calcutta - 27. 3. Mr. Ghosh, learned advocate appearing for the petitioners submits that non-levy cement is not an essential commodity, as it "as already been held in two judgments delivered by this Court and accordingly the impugned proceedings should not be allowed to continue and the same should be quashed. Mr. Ghosh, learned advocate relies on a judgment of this Court reported in 1992 CWN page 1189. In the said judgment it was held by this court that prior to February, 1982, cement was a controlled commodity but not an essential commodity. In the said case, the confiscation proceeding initiated before the learned Collector, Malda was quashed by the learned Single Judge of this Court. Mr. Ghosh, the learned advocate for the petitioners also relies upon a judgment of this court reported in Calcutta Law Times 1995(1) H.C. 367. In the said judgment it was held that non-levy cement was not an essential commodity as defined in section 2(a) of the Essential Commodities Act, 1955. It is submitted by Mr. Ghosh, learned advocate for the petitioners that in view of the aforesaid two decisions, the present proceeding should not be allowed to continue. 4. Mr. Moitra, learned Addl. Public Prosecutor appearing for the State submits that the relevant dates of purchase of cement is May, 1980 to June, 1980. So, on the date of alleged incident, the West Bengal Cement (Licencing and Control) Order, 1979 was very much in force and there is no reason for which the present proceeding under the aforesaid Control Order of 1979 should be quashed. It is further pointed out by Mr. Moitra, learned Addl. So, on the date of alleged incident, the West Bengal Cement (Licencing and Control) Order, 1979 was very much in force and there is no reason for which the present proceeding under the aforesaid Control Order of 1979 should be quashed. It is further pointed out by Mr. Moitra, learned Addl. Public Prosecutor that earlier a revisional application was preferred before this Court for quashing of the proceeding and in the said revisional application, similar points were raised. This court by its judgment and order dated 2.5.2001 in C.R.R. 389 of 1993 dismissed the said revisional application and directed the learned trial court to conclude the proceeding within a period of 60 days from the date of communication of the order. According to Mr. Moitra, learned Addl. Public Prosecutor, the points taken by the petitioners in the present application should not be taken into consideration by this Court. 5. I have heard the learned advocates for the petitioners as also for the State. It is true that in the definition of the essential commodities as provided in section 2(a) of the Essential Commodities Act, the cement is not included but in exercise of the powers referred by sub-clause (xi) of clause (a) of section 2, the Central Govt. has declared certain commodities as essential commodities for the purpose of the Essential Commodities Act. "Cement" is very much included amongst the said commodities. Apart from this, it is also made clear from the Schedule I appended to the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977, that cement is very much included in the said schedule. 6. By paragraph 17 of the West Bengal Licensing Dealers of Cement and Distribution of Levey Cement Order, 1982, the West Bengal Cement (Licensing and Control) Order, 1979 has been repealed. But it is made clear in clause (a) of the proviso to the said paragraph that such repeal shall not affect the previous operation of the said order or anything done or supposed to be done thereunder. In view of such provision in the Control Order of 1982, although the Control Order of 1979 has been repealed, by virtue of clause (a) to the proviso to paragraph 17, such repeal cannot affect the present proceeding which was initiated in the year 1981 for violation of Control Order of 1979. In view of such provision in the Control Order of 1982, although the Control Order of 1979 has been repealed, by virtue of clause (a) to the proviso to paragraph 17, such repeal cannot affect the present proceeding which was initiated in the year 1981 for violation of Control Order of 1979. On that particular date when the alleged offence was committed, the Control Order, 1979 was still in force. 7. In view of the discussions made above, I am of the view that it will not be proper for this Court to quash the proceeding on the ground as agitated by the petitioners in the present application. 8. The present application accordingly fails and the same is dismissed. The learned trial court is directed to expedite the proceeding and to conclude the same with utmost expedition. 9. Let an urgent xerox certified copy of the order be given to the learned advocate for the petitioners at an early date, if applied for. Revisional Application dismissed.