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2017 DIGILAW 132 (CAL)

Nitya Gopal Roy v. State of West Bengal

2017-01-31

SUBRATA TALUKDAR

body2017
JUDGMENT : Subrata Talukdar, J. In this writ petition challenge is thrown to the termination of the Fair Price Shop (for short the F. P. shop) Licence of the writ petitioner by the Sub-Divisional Controller (F & S), Barrackpore. Challenge is also thrown to the enquiry, search and seizure conducted at the shop-cum-godown of the petitioners on 13th of August, 2010 by officers of the Food & Supplies Department on the ground that such enquiry, search and seizure has failed to follow due process. 2. Mr. Debabrata Saha Roy, Ld. Counsel appearing for the petitioners submits that at the instance of certain local vested interests purportedly backed by the Prodhan of the local gram panchayat, an enquiry, search and seizure was conducted at the petitioners' premises on 13th of August, 2010. Mr. Saha Roy points out that the said enquiry, search and seizure was not undertaken in the presence of independent witnesses and, no physical measurement of the ration articles was taken. 3. Ld. Counsel for the petitioners further points out that the stocks of ration articles kept in the adjoining shop room were not measured and, in spite of seizing the books of accounts, no seizure list was prepared and handed over by the inspecting officers. 4. The enquiry, search and seizure on 13th August, 2010 was followed by a show cause notice issued on 25th August, 2010 in which it was, inter alia, alleged that the petitioners violated the provisions of the West Bengal Public Distribution (Maintenance and Control) Order, 2003 (for short the 2003 Control Order). Simultaneously, the dealership of the petitioner was suspended and, in spite of the petitioners submitting an exhaustive reply to the show cause notice, the FP dealership was terminated on 24th November, 2010. 5. Against the order of termination dated 24th of November, 2010 (supra) the writ petitioners preferred a statutory appeal before the Appellate Authority. However, Mr. Saha Roy submits, that the Appellate Authority mechanically endorsed the findings of the first authority. 6. Mr. Saha Roy next points out that the final order of termination records the complaints of the ration card holders of the local gram panchayat against the petitioners. However, both at the enquiry and, at the show cause stage, no such copy of the complaint/complaints of the card holders was supplied to the petitioner. 6. Mr. Saha Roy next points out that the final order of termination records the complaints of the ration card holders of the local gram panchayat against the petitioners. However, both at the enquiry and, at the show cause stage, no such copy of the complaint/complaints of the card holders was supplied to the petitioner. Second, the petitioners are permitted to store the rationing articles in adjoining rooms of the F. P. shop on the strength of a Memo dated 31st of December, 2010 issued by the Principal Secretary, Food & Supplies Department. Mr. Saha Roy therefore questions the drawing up of the enquiry proceeding on the basis of the purported complaints of the ration card holders as well as the continuance of such proceeding in utter violation of the principles of natural justice, since no copy of the documents relied upon by the Authority were furnished to the petitioners. 7. On the strength of several decisions of this Court, Mr. Saha Roy points out that the mandatory provisions as contained in the 2003 Control Order relating to seizure in the presence of independent witnesses was not followed by the respondents/Authority. It is submitted that carrying out a search and seizure strictly in conformity with the provisions of the 2003 Control Order has been clearly discussed by an Hon'ble Single Bench of this Court in the matter of Arun Agarwal v. State of West Bengal & Ors. being WP 1299 of 2009. Delivering its judgment on 29th of April, 2010 the Hon'ble Single Bench, inter alia, held as follows :- "23. However, so far as non-compliance of the provisions of Section 100 is concerned, this Court notices that under Para-25(2) of 2003 Order, it has been laid down that the provisions as contained in Section 100 of the Code of Criminal Procedure, 1973 relating to search and seizure shall, so far as may be, apply to search and seizure under the said paragraph. Section 100 of the Code of Criminal Procedure, 1973, inter alia, provides that under Section 100 11 (4), independent and respectable inhabitants of the locality should be called in the place which is searched and if no such inhabitant is available or is willing to be a witness, then an order in writing shall be issued to them to witness and attend the search. 30. 30. In the instant case, this Court notices that under the provisions of Para 25 (2), it has been specifically laid down that the provisions contained in Section 100 Cr. P.C. relating to search and seizure shall, so far as may be, apply to searches and seizures under this paragraph. In the background of such a provision having been provided read with the judgments referred to above, this Court is of the view that in order to test as to whether Para 25(2) is mandatory or directory, an aspect, be considered and that is, the application and insertion of the word "shall" just before the words "so far as may be". Para 25(2) reads as follows:- "25(2). The provisions as contained in Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this paragraph". (Quoted) 32. In the opinion of this Court, the purpose for which such a provision like Para 25(2) of the Control Order of 2003 was made was in the context of keeping in mind that arbitrary actions of the State should not be encouraged. A Division Bench of this Court has gone a step further while interpreting a provision as to whether it is Mandatory or Directory by keeping in mind that the guiding factor should be also the beneficial purpose for whom the 15 Rule is made. This was considered by a Judgment delivered by a Division Bench of this Court in WPCT 210 of 2008 on 19.8.2009. A photocopy of the said Judgment was produced by the learned Counsel for the Petitioner during arguments. The relevant portions thereof are quoted below:- "Having regard to the language used in the said Index no. 1033, the regulation, the issue now is required to be considered whether that provision is a mandatory provision or directory provision. To test a provision whether mandatory or directory, the use of the word 'shall' or 'may' is not a guiding factor, but the main guiding factor is context and purpose for which the provision has been made and the beneficial purpose for whom it is made. By a Constitution Bench judgment passed in the case Collector of Monghyr & Ors. To test a provision whether mandatory or directory, the use of the word 'shall' or 'may' is not a guiding factor, but the main guiding factor is context and purpose for which the provision has been made and the beneficial purpose for whom it is made. By a Constitution Bench judgment passed in the case Collector of Monghyr & Ors. v. Keshav Prasad Goenka & ors., reported in AIR 1962 SC 1694 , in paragraph 12, the Court identified the legal position by holding to this effect "it is needless to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve." In the case Mannalal Khetan v. Kedar Nath Khetam, reported in AIR 1977 SC 536 , a judgment of three Judges Bench, the Court held "negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. Non-compliance of provision even if not provides any offence, the provision of such test cannot be said as directory." (Quoted) 33. From the aforementioned Judgments and read with the observations made by this Court above, this Court considers that the very purpose to insert Para 25(2) was to ensure reasonableness and non-arbitrariness during the course of search and seizure and therefore, it is a provision that is beneficent not only to the State but also to the person who is being searched as it seeks to enforce the provisions of Article 14 of the Constitution of India rendering an arbitrary action illegal. In the background of Article 14 of the Constitution of India, read with the observations made by the Division Bench and 16 also by the Supreme Court in the case of Ram Deen Maurya (DR.) referred to above, this Court comes into conclusion that so far as the provisions of Para 25(2) of West Bengal Urban Public Distribution System (Maintenance and Control) Order 2003 is concerned, the same is mandatory and it must be strictly observed. 40. This, therefore, is a clear case of an extremely arbitrary exercise of power which is hit by Article 14 of the Constitution of India. Under such circumstances, this Court, therefore, has no option but to allow the Writ Petition and quash the Orders dated 14.2.2009 passed by the Appellate Authority. As a result, this Court also quashes the Order dated 17.6.2009 and declares that the enquiry, search and seizure conducted by the two Joint Directors on 8.11.2008 was clearly illegal, arbitrary and in violation of law and therefore, this Court also holds them responsible for committing such an illegality, and accordingly, fastens responsibility upon them." 8. The judgment In Re: Arun Agarwal (supra) was tested by the State-respondents before an Hon'ble Division Bench of this Court being APO 247 of 2010. By judgment delivered on 21st January, 2011 the Hon'ble Division Bench, inter alia, held as follows:- "Under such circumstances the Hon'ble Single Judge held that there is a clear case of an extremely arbitrary exercise of power which is hit by Article 14 of 18 the Constitution of India and on such finding the Court allow the writ petition and quash the order dated 14th February, 2009 as well as the order dated 17th June, 2009. In our considered opinion, the question is whether it is necessary to follow Section 100 of the Code of Criminal Procedure relating to search and seizure strictly when the authorities are taking steps in Para 25(2) of the Control Order on the given facts and in our opinion the Hon'ble Single Judge has correctly assessed the said provision and came to the conclusion that the guiding factor decides such question should depend on the facts and in our considered opinion as has been held by the Hon'ble Single Judge we only following the decisions of the Hon'ble Division Bench of this High Court held that the very purpose to insert paragraph 25(2) of the said Control Order was to ensure reasonableness and non-arbitrariness during the course of search and seizure. Therefore, the provision contained in the said order is beneficent not only to the State but also to the person who is being searched. The provisions of Article 14 of the Constitution of India rendering an arbitrary action illegal. We come to the conclusion that paragraph 25(2) of the West Bengal Urban Public Distribution System (Maintenance and Control) Order 2003 is concerned, the same is mandatory and it must be observed strictly. Therefore, in view of our opinion as expressed by the Hon'ble Judge and affirming by us we hold that search and seizure which has been conducted falls within the meaning of arbitrariness and, therefore, we affirm the decision of the Hon'ble Single Judge and in our opinion the order so passed by His Lordship does not suffer any illegality and/or irregularity. In our considered opinion, there is no merit in the appeal. Hence, we dismiss this appeal." 9. Mr. Saha Roy further submits that in a decision of the Hon'ble Apex Court in Oryx Fisheries Pvt. Ltd. v. Union of India & Ors. reported in 2010 (13) SCC 427 , the ratio of both the judgments of the Hon'ble Single Bench and Hon'ble Division Bench In Re: Arun Agarwal (supra) were noticed. The judgment In Re: Oryx Fisheries was further noticed by an Hon'ble Single Bench in an unreported decision being WP 329 of 2011 in the matter of Samir Sadhukhan v. State of West Bengal & Ors.. The judgment In Re: Oryx Fisheries was further noticed by an Hon'ble Single Bench in an unreported decision being WP 329 of 2011 in the matter of Samir Sadhukhan v. State of West Bengal & Ors.. By judgment dated 13th December, 2011 the Hon'ble Single Bench In Re: Samir Sadhukhan (supra), inter alia, held as follows:- "On a plain reading of the above paragraph I have no hesitation to hold that the show cause notice in question was issued after forming an opinion with regard to gross contravention of the conditions mentioned in the fair price shop licence of the petitioner as also with regard to violation of the provisions of the said Control Order, 2003. Formation of an opinion against a person without giving any opportunity to him 6 suffers from procedural impropriety. Therefore, the show cause notice under reference suffered from procedural impropriety or any other words there was violation of the principles of natural justice once it is held that the show cause notice suffered from procedural impropriety, the entire subsequent action with regard to the proceeding under reference was also vitiated. Considering the show cause notice of May 13, 2010, I find that the basis of initiating the proceeding against the petitioner was a report of the Special Squad of the respondent authority. No material is produced before this court to show that copy of the above enquiry report was served upon the petitioner. Though it is evident from the impugned order of cancellation of the fair price shop licence of the petitioner that a copy of the physical stock verification report was handed over to him, the same cannot be equated with the enquiry report. Therefore, there was violation of principles of natural justice with regard to non-supply of enquiry report to the petitioner. After considering the impugned orders I find that admittedly two representatives of the petitioner were present a the time of search and seizure under reference. No material is produced before this court to show that any independent witness was present at that point of time. In order to adjudicate the issue involved in this writ application, provisions of sub- 7 section 4 of the section 100 of the Code of Criminal Procedure are quoted below :- "100. Persons in charge of closed place to allow search. (1) . . . . . . . . . . . . . In order to adjudicate the issue involved in this writ application, provisions of sub- 7 section 4 of the section 100 of the Code of Criminal Procedure are quoted below :- "100. Persons in charge of closed place to allow search. (1) . . . . . . . . . . . . . (2) . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) . . . . . . . . . . . . . . . . (6) . . . . . . . . . . . . . . . . (7) . . . . . . . . . . . . . . . . (8) . . . . . . . . . . . . . . . ." In view of the above provisions two or more independent witnesses and respectable inhabitants concerned locality should have been present at the time of search and seizure in question. Independent witness means witness not dependent upon any party. Therefore, the representatives of the petitioner were not independent witnesses in terms of the above 8 provisions. When law prescribes a particular mode to perform certain thing in certain manners, the same should be done in that manner and other mode of performance is forbidding. Reference may be made to the decision of Nazir Ahmed v. King Emperor, reported in AIR 1936 PC 253 . The above settled principles of law has been adopted by the Hon'ble Supreme Court of India in a number of subsequent decisions. Reference may be made to the decision of Rampal Kundu v. Kamal Sharma reported in (2004) 2 SCC 759 . The above settled principles of law has been adopted by the Hon'ble Supreme Court of India in a number of subsequent decisions. Reference may be made to the decision of Rampal Kundu v. Kamal Sharma reported in (2004) 2 SCC 759 . In view of the above proceeding under reference was valid in the eye of law. With regard to storing of PD items in a adjacent room of the godown, I find that no restriction is imposed in Clause (ii) of paragraph 20 of the said Control Order, 2003 to prevent the petitioner to do so for appreciation of the submissions made in this regard. The above provisions are quoted below: "20. Regulation regarding storage and sale of public distribution commodities :- (i) . . . . . (ii) The Dealer shall not store or sell any commodity outside the selected public distribution commodities as allotted to him: Provided that a dealer may be permitted to store and sell such other items of daily necessities at such prices and in such quantities as may be fixed by the Central Government/state Government from time to time under different schemes to be 9 operated separately and not forming a part of this Order. (iii) . . . .. . . . . . . . . . . . . . . . .. (iv) . . . . . . . . . . . . . . . . .." In view of the discussions and observations made herein above, the impugned orders are quashed and set aside. There will, however, be no order as to costs. The respondent authority is directed to restore the fair price shop licence of the petitioner within a period of January 31, 2012." 10. Mr. Saha Roy heavily relying upon In Re: Oryx Fisheries (supra) places paragraph 31 for the consideration of this Court, which reads as follows:- "It is true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But, while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. But, while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence." 11. Therefore, Mr. Saha Roy argues that the entire exercise conducted by the respondents Food & Supplies Authority is factually and legally not sustainable. Accordingly, the prayer is made before this Court for setting aside the order of termination and restoring the FP licence of the petitioners under the 2003 Control Order. 12. Arguing for the State-respondents, Mr. Sushovon Sengupta, Ld. Senior Government Advocate relies on the affidavit-in-opposition affirmed by one Abhijit Dhara being the Sub-Divisional Controller (F & S), Barrackpore. This Court notices that the stand of the State respondents is that inspection was carried out on 13th August, 2009 at the shop premises of the petitioners in presence of the petitioner No.1. Also a local resident of the area was present. No ration articles were seized. However, books of accounts were taken away for an official verification and are so noted in the inspection report. 13. The affidavit of the State-respondents reiterates that the inspection was carried out in terms of the 2003 Control Order and, the unauthorized godown adjoining the shop premises was also inspected. Although books of accounts were taken away, no seizure of the said books of accounts was mentioned. 14. It is relevant for the present discussion to quote paragraph 9 of the said affidavit-in-opposition:- "9. With regard to the contents made in paragraph Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the said petition. I deny and dispute each and every allegations made therein save and except those which are matter of records. With regard to the contents made in paragraph Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the said petition. I deny and dispute each and every allegations made therein save and except those which are matter of records. Its stated that the order vide No. 2498 dated 24.11.2010 issued by the Sub-Divisional Controller (Food & Supplies), it was mentioned that the petitioners reply to the show-cause notice was not satisfactory. Moreover, the order clearly mentioned that the submission during the time of personal hearing were not convincing and submission of the petitioners in respect to the charges framed were taken into account and thereupon the termination order passed by the Sub-Divisional Controller, Food & Supplies, Barrackpore." 15. Mr. Sengupta, on the strength of the affidavit of the State respondents as discussed above, makes the following points :- First, non-supply of the enquiry report may not be fatal to the enquiry and violative of the principles of natural justice since the petitioners could not demonstrate that any prejudice was caused due to such non-supply. Mr. Sengupta also questions the stand of the petitioners connected to the mass attempt by the local residents to close down the F. P. shop. Mr. Sengupta further points out that although the petitioner No.1 was present at the time of inspection on 13th August, 2010, at the moment the mob gathered outside the F. P. shop on 13th August, 2010, the petitioners claimed to be absent. 16. In connection with storing ration articles in the adjoining room of the F. P. shop, Mr. Sengupta submits that such storage space was neither authorised nor approved. The writ petitioner did not at all bring to the notice of the Rationing Authority the presence of such storage space. The petitioners also cannot be held to be prejudiced by the alleged non-supply of the enquiry report since one of the writ petitioners signed on the inspection book. 17. Having heard the parties and considering the materials placed, this Court is of the clear view that the principles of search and seizure as laid down by several Courts (supra) have been admittedly not followed in the facts of the present case. From the show cause notice dated 25th August, 2010 it is obvious to this Court that several quantities of rationing articles were mentioned. From the show cause notice dated 25th August, 2010 it is obvious to this Court that several quantities of rationing articles were mentioned. However, the show cause notice does not purport to show that the provisions for inspecting and measuring the rationing articles in terms of the 2003 Control Order and clarified through several judgments (supra) were followed by the Rationing Authority. 18. It also strikes the mind of this Court that although both the show cause notice dated 25th August, 2010 and the order of suspension of the same date raise discrepancies in connection with the stocks, from the affidavit-in-opposition of the State-respondents this Court finds that only books of accounts were taken away without a seizure list, in violation of due process. 19. This Court also finds that the final order of termination issued by the Sub-Divisional Controller (F & S), Barrackpore employs the following observation in its conclusion:- "So, I think (emphasis supplied) the charge is established." 20. Reading the above noted concluding observation of the Sub-Divisional Controller (F & S) with the pleadings at paragraph 9 of the affidavit-in-opposition filed by the State-respondents (supra) which, inter alia, state that the submissions of the writ petitioners at the personal hearing "were not convincing" do lead to an implication that the Rationing Authorities themselves were not beyond reasonable doubt regarding the future course of action. 21. It is also found by this Court that the order impugned of the Appellate Authority is mechanical and without application of mind. 22. In the above premises the action impugned of the Rationing Authorities in this writ petition cannot be sustained and accordingly stands set aside. It is directed that the appropriate respondents-Rationing Authority shall forthwith take steps to restore the F. P. shop licence of the writ petitioners and, not later than a period of four weeks from the date of communication of this order. The impugned show-cause, order of termination and the order of the Appellate Authority stand quashed. WP 29023(W) of 2014 stands accordingly allowed. There will be, however, no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.