JUDGMENT 1. IN this writ petition the writ petitioners have essentially challenged a criminal proceedings against the petitioners initiated by the Enforcement Branch of Police, West Bengal under the provisions of West Bengal Rice Mill (Control and Levy Order) 2005 issued by the Government of West Bengal in exercise of its power under section 3 of the Essential Commodities Act 1955. 2. THE chief ground on which the above challenge is based is that the West Bengal Rice Mill (Control and Levy Order) 2005 (shortly called, the 'Control Order') was not even in force or in existence on the dates when the search took place at the Office of the first petitioner, a co-operative society and about 415 bags of rice were ceased amongst other items by the officers of the said Enforcement Branch and subsequently, the police case was registered against the Directors of the first petitioner. The case as made out in the writ petition proceeds on the basis that on 23 August 2006 the concerned police officers of the Enforcement Branch searched the Office premises of the first petitioner and on 24 August 2006 they ceased amongst other items about 415 bags of rice and on 25 August the officers concerned lodged an FIR and registered a case, namely Pataspur P. S. Case No. 64 of 2006 against the Directors of the first petitioner, namely the said Co-operative Society. 3. CHALLENGING the above action the petitioners initiated a writ proceedings in this Court and on 21 September 2006 this Court passed an order whereby the concerned police authority empowered under the above Control Order was permitted to carry on investigation but they were restrained from taking any penal action until further order. 4. THIS interim or rather ad interim order was made for protecting to some extent the interest of the petitioners and allowing the police authority to proceed with the investigation without prejudice to the question as raised by the petitioner regarding the date of publication of the said Control Order. On 13 November 2006 the Additional Chief Judicial Magistrate, Contai allowed the addition of section 7(i)(a)(ii) of the Essential Commodities Act 1955 to the said FIR for alleging violation of the provisions of the said Control Order. 5. On 13 November 2006 the Additional Chief Judicial Magistrate, Contai allowed the addition of section 7(i)(a)(ii) of the Essential Commodities Act 1955 to the said FIR for alleging violation of the provisions of the said Control Order. 5. ON 31 January 2007 the Collector, Essential Commodities Act, Purba Medinipur made an order in a confiscation proceedings initiated under Essential Commodities Act, (Case No.3 of 2006) by which the police authority concerned was permitted to sell the said 415 bags of rice and deposit the proceeds thereof in the Treasury. In consequence a sum of Rs. 1,82,600/- being the proceeds of the above sale was deposited by the police authority in Egra Treasury on 15 February 2007. 6. THE petitioners thereafter invoking the provisions of Right to Information Act made certain enquiries regarding the date of publication of the notification issued by the Government of West Bengal for enforcement of the above Control Order and the Controller of Printing and Stationery of the Government of West Bengal in its turn on 1 June 2009 duly certified that the notification containing the said Control Order was issued on 5 September 2006 and the publication of the same was received on 8 September 2006 and the same was sent to the Government Sales Counter on 11 September 2006. Relying on the letters dated 26 July 2010 of the Joint Secretary of the Government of West Bengal addressed to the Sub-Inspector General and Deputy Inspector General of Police, Enforcement Branch, West Bengal and 16-11-05 from the Joint Secretary to the Government of West Bengal to the Director of District Distribution Procurement and Supply, it is argued that the police had, in fact, admitted that they could purchase the Control Order only on 12 September 2006 (Page 76 of the Affidavit-in-Opposition) affirmed on 19 May 2010 by Rajendar Singh. 7. THE petitioners have also tried to demonstrate that the Gazette Notification dated 19 November 2005 was, in fact, anti-dated because the notification was despatched by the authority only on 22 November 2005 to the Government Press and, therefore, the date of publication of the notification in any event could not be 19 November 2005. 8. 7. THE petitioners have also tried to demonstrate that the Gazette Notification dated 19 November 2005 was, in fact, anti-dated because the notification was despatched by the authority only on 22 November 2005 to the Government Press and, therefore, the date of publication of the notification in any event could not be 19 November 2005. 8. IT is, in fact, impossible to even imagine that the date of publication of the notification, namely 19 November 2005 in this case can be accepted to be the correct date since the same was sent to the Government Press for publication not before 22 November 2005 and this has been further confirmed by the Controller of Printing and Stationery Government of West Bengal in his note/certificate dated 1 June 2009, Annexure P-7 to the supplementary affidavit dated 9 April 2010 appearing at Page 12 thereof of Golokesh Nanda Goswami affirmed on 9 day of April 2010. In support of the above contentions, learned Senior Counsel Mr. Biani primarily relied on the observations of one of the Judges of the Three-Judge- Bench, namely, Justice Lahoti as his Lordship then was, in the Supreme Court's decision in Union of India and Others v. Ganesh Das Bhojraj, (2000) 9 SCC 461 . 9. IN Paragraph 25 of the said judgment his Lordship Justice Lahoti said as follows: The case at hand is one where through the writ petition filed by the respondent before the High Court the liability to pay customs duty at the rate of 25 per cent of the value of the goods was sought to be avoided and goods were sought to be released from detention of the Customs Authorities. IN such a case the publication of the notification in the Government Gazette in the manner contemplated by section 25(1) of the Customs Act would be enough to import the liability to pay customs duty without regard to the inquiry into the fact whether the notification had actually come to the knowledge of the importer or not. It is not the respondent's case that the relevant Gazette has been published ante-dated. It is not the respondent's case that the relevant Gazette has been published ante-dated. What will be the impact of publication in the Government Gazette through the Gazette in spite of having been published was not available to be seen by the persons affected when criminal consequences are sought to be inflicted is a persons affected when criminal consequences are sought to be inflicted is a question which should in my opinion be left open to be gone into in an appropriate case. Non-availability of the Gazette carrying the notification may provide the foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of the Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open. With this much reservation I agree with my learned brother M.B. Shah, J. that the appeal has to be allowed". 10. SINCE, in my opinion, the above passage has a great deal of bearing upon the case with which I am concerned I would say a word or two on the said decision of the Supreme Court a little later. The learned Counsel in support of the petitioner's case also relied on two Supreme Court decisions and those are - (i) Collector of Central Excise v. New Tobacco Company and Ors., (1998) 8 SCC 250 (ii) Garware Nylons Limited v. Collector of Customs and Central Excise, Pune, (1998) 8 SCC 282 . 11. IN the case of New Tobacco Company (supra) the Supreme Court was primarily concerned with the question as to when a Central Excise Notification comes into force and the Supreme Court held that a Central Excise Notification could only be said to have been published when it was so issued as to make it known to the public. According to the Supreme Court the proper publication of such notification means if the notification is published in such a manner that interested persons can acquaint themselves with the contents of such notification. If the publication is through Gazette then mere printing of it in the Gazette would not be enough until the Gazette containing notification in a given case is made available to the public the publication of it cannot be regarded as due publication in law. 12. If the publication is through Gazette then mere printing of it in the Gazette would not be enough until the Gazette containing notification in a given case is made available to the public the publication of it cannot be regarded as due publication in law. 12. NEEDLES to mention that proper publication of such notification is made when such notification is put in circulation or rather the same is put on sale to the public. In deciding the above case the Supreme Court had the occasion to take into account several earlier decisions of the Supreme Court as well as Madras High Court and an English decision as well. 13. IN Garware Nylons Limited (supra) the Supreme Court merely followed the decision in New Tobacco Company (supra) and reaffirmed that a notification can be regarded as duly published when it is made known to the public and since in the case before the Supreme Court it was found that the Gazette containing the notification was made available for public sale on a particular date, the Supreme Court held that the effective date of the notification was that when the Gazette was made available for public sale and the effective date of publication of the notification was not the date of the notification itself. 14. IN dealing with the arguments made on behalf of the petitioners learned Additional Government Pleader, Mr. Sandip Srimani, Additional Government Pleader, in fact, said that the effective date of publication of a notification with which this case is concerned is the date when such notification is made known to the public. IN other words, when the notification or rather the Gazette containing such notification is put up for sale, but that Mr. Sandip Srimani, Additional Government Pleader said was one of such modes. IN this case, Mr. Sandip Srimani argues, before the search was conducted and the bags of rice were ceased the Control Order in question was distributed to the concerned persons who were to be affected by such Control Order if any action had been taken or was sought to be taken for committing any offence under any provision of the said Control Order of 2005. Mr. Srimani also said that the writ petitioner had full knowledge of the existence of the said Control Order and that according to Mr. Mr. Srimani also said that the writ petitioner had full knowledge of the existence of the said Control Order and that according to Mr. Sandip Srimani was evident from their letters addressed to the authority concerned and since the petitioners had full knowledge of the existence of the Control Order the question raised in this writ petition by the petitioner that the Gazette containing the notification was not made available to the public or the same was not put up for sale to the public when the search was conducted at the petitioners' premises and the bags of rice were ceased should not be accepted as valid so as to render the initiation of the criminal proceedings against the petitioner under the said Control Order invalid merely on the ground that since the Gazette containing the notification was not duly published as the same was not made available to the public in general including the petitioners on the date the search and seizure had taken place. 15. RELYING on the decision of the Supreme Court in H. N. Rishbud and Anr. v. State of Delhi, AIR 1955 SC 196 Mr. Sandip Srimani argued that since the criminal proceedings was initiated against the petitioners after the bags of rice were ceased the writ petitioners should not have taken recourse to the public law remedy under Article 226 of the Constitution. 16. I have considered the judgment of the Supreme Court in H. N. Rishbud (supra) and I find it extremely difficult to appreciate as to how the above Supreme Court decision can be said to be a bar to the present proceedings initiated by the petitioners in which a question of law has been raised in order to challenge the validity of the criminal proceedings initiated against the petitioners on the ground or grounds as mentioned above. I do not think I need to deal with the above Supreme Court decision in any detail for making an attempt to answer the question raised by the petitioner in this case. The most relevant decision on the question with which I am concerned is indeed the decision in Ganesh Das Bhojraj (supra). I do not think I need to deal with the above Supreme Court decision in any detail for making an attempt to answer the question raised by the petitioner in this case. The most relevant decision on the question with which I am concerned is indeed the decision in Ganesh Das Bhojraj (supra). In that case the Supreme Court was primarily dealing with a notification published in the original extraordinary Gazette by which an earlier notification was to some extent amended and by virtue of the said amendment a question was raised that since the said notification contacting the amendment was not made available to the public at large the customs authority could not levy duty on the basis of the amendment. 17. AFTER considering the two earlier decisions of the Supreme Court in Pankaj Jain Agencies v. Union of India (1994) 5 SCC 198 and New Tobacco Company (supra) and other relevant decisions, the Three-Judge-Bench of the Supreme Court in Ganesh Das Bhojraj above found on facts that there was no substance in the contention that the notification in question was not published in the Gazette on the same day that was mentioned in the, notification itself and on that bases the Supreme Court thought the notification came into force on the same date mentioned in the notification and not on any subsequent date. 18. THE Supreme Court in that case, as I have said above, was solely concerned with a notification published in the Government Gazette under section 25(1) of the Customs Act. By the said notification or rather the amended notification customs duty became payable at the rate of 25% of the value of the goods. Previously duty at the rate of 25% was not payable or rather importers were exempted from paying 25% duty by the earlier notification. But by the amended notification 25% customs duty was payable on the goods on the basis of the value thereof. It is in the above situation the publication of the notification the Government Gazette as provided under section 25(1) of the Customs Act, the Supreme Court held was enough to impose the liability upon the persons concerned to pay customs duty. Since the notification in question was duly published, the Supreme Court thought, it was not necessary to enquire into the fact whether the notification had actually been brought to the knowledge of the importers concerned or not. Since the notification in question was duly published, the Supreme Court thought, it was not necessary to enquire into the fact whether the notification had actually been brought to the knowledge of the importers concerned or not. On facts, the Supreme Court also found that it was not dealing with a case where the relevant Gazette was published anti-dated. 19. IN the present case, however, we are dealing with a notification which imposes criminal liability on the persons who are found to violate the provisions of the Control Order and that is why it was and is all the more necessary that the persons who were and are to be affected by such notification should know the contents of such notification. 20. SINCE, in the instant case there is enough evidence that though the notification contains the date, namely 19 November 2005 that date should not regarded as the due publication of the notification as the same was not made available to the public in general before 11 September 2006. The notification in question cannot be said to have been enforced or cannot be said to be in force on the date or dates when the search and seizure had taken place at the premises of the petitioners and as such the initiation of the criminal proceedings on that basis cannot be regarded as valid at all. There is no doubt, however, that the relevant provisions in the Essential Commodities Act 1955 under which the Control Order in question was issued make a person criminally liable if he or she is found to have committed offence as provided in the Act and if such person is found guilty he is to suffer punishment, namely imprisonment and such punishment will be made under the criminal law. 21. ON a plain reading of the offences as provided in the 1955 Act it is clear that a person commits an offence under section 7 of the Act if he intentionally contravenes any Order made under section 3 of the Act. "Mens Rea" has been held by the Supreme Court to be an essential ingredient of an offence under section 7 of the Act, See Nathulal v. State AIR 1966 SC 43 . "Mens Rea" has been held by the Supreme Court to be an essential ingredient of an offence under section 7 of the Act, See Nathulal v. State AIR 1966 SC 43 . In such a situation, in my opinion, the persons who were and are to be affected by the Order had and have a right to know that such Control Order existed or exists and on this basis it can safely be said that the Control Order could only come into existence when the Gazette containing the notification is made available to the public at large and not before. 22. 1 DO not think Justice Lahoti had expressed any dissenting opinion in Ganesh Das Bhojraj's case (supra), his Lordship merely clarified the extent of the decision of the Three-Judge-Bench in that case. A plain reading of the Supreme Court judgment in the case in question including paragraph 25 thereof makes the position very clear. The contention of the respondents concerned that the petitioners were aware of the notification or rather the Control Order DOes not make the case any better as admittedly the Gazette was not made available to the public on the dates when the search and seizure had taken place at the petitioners' premises. However, it is also it is also evident from the certificate signed by the Director of Printing and Stattionery Government of West Bengal that the Gazette was sent to the Sales Counter not before 11 September 2006 and the publication in the Official Gazette itself was received on 8 September 2006 and this makes the case of the petitioners strong enough to warrant the protection the petitioners have sought in this proceedings. Since, I find that the criminal proceedings was initiated against the petitioner on the basis of a search and seizure that took place on the dates when the Gazette containing the notification was not even made available to the public at large, then I must say that the date of publication as mentioned in the Notification i.e. 19 November 2005 should not be regarded as the actual date of publication and as such the criminal proceedings initiated on the basis of the search and seizure cannot also be regarded as valid as the natural and probable consequence thereof. 23. IN view of the above, the petitioners, in my opinion, are entitled to the relief as sought by them in this proceedings. 23. IN view of the above, the petitioners, in my opinion, are entitled to the relief as sought by them in this proceedings. 35. Thus, there will be an order in terms of prayer (a), (b) and (d) of the writ petition. 24. HOWEVER, having regard to the facts of the case and the respective stands taken by the parties to the proceedings there will be no order for costs. Mrs. Suchitra Saha, learned Counsel appearing on behalf of the State prays for stay of this order and the same is unhesitatingly refused. Writ petition allowed.