Calcutta High Court
Omraomal Goyal vs State Of West Bengal And Ors. on 10 November, 1994
Equivalent citations: 1995CRILJ2611
ORDER Gitesh Ranjan Bhattacharjee, J.
1. in this revisional application under Section 482 Cr. P.C. read with Article 227 of the Constitution of India the petitioner has prayed for quashing the investigation started in Bhacti-nagar P.S. Case 165/94 under Section 7(1) (a) (ii) of the Essential Commodities Act and also for quashing the confiscation proceeding started under Section 6A of the said Act being E. C. Case No. 8/2 94-95 pending before the Collector under the E. C. Act, Jalpaiguri.
2. The petitioner has challenged the police investigation on the ground that the first information report on the basis of which the police investigation has been started does not disclose any cognizable offence. The FIR was lodged by DEB Inspector(s), Jalpaiguri on 2-8-94 at 01.25 hours. The gist of the FIR is noted hereunder. The DEB Officers, on receipt of secret source information, approached, under the direct supervision of the Dy. S. P. DEB Jalpaiguri, the main gate of Nava Bharat Flour Roller Mill situated at Salugara under P. S. Bhactinagar at about 9-15 hrs. on 1-8-94 and there intercepted two rickshaws loaded with four bags of rice (3 qnts 60 kgst) and five bags of rice (4 qnts. 50 kgs.) respectively while the rickshaw were coming from the mill towards its main gate. The Rickshaw pullers disclosed that they were engaged by Shri Krishna Prasad of Salugara Bazar to bring the rice from Nava Bharat Flour Mills to his shop situated at Salagura Bazar and at that time Krishna Prasad also appeared there and corroborated the statements of the rickshaw pullers and produced one 'chit' ad dressed to Saha Store issued by Basudev Agarwala, an employee of Nava Bharat Flouer Roller Mill in respect of rice S. F. (superfine) and rice 'mota' (coarse) and also divulged that every Monday the proprietor of Nava Bharat Flour Roller Mill sells rice to shopkeeprs of Salugara Bazar as the dery is a hat day. Krishna Prasad led the raiding DEB party to the godown of the mill and there the raiding party found huge quantity of wheat and boiled and raw rice inside the godown. On demand for production of books of accounts the manager of the mill stated that he was simply the manager of the mill and had no knowledge about the books of accounts and further stated that Suresh Sharma and Basudev Agarwala were dealing with the rice and the wheat 6f the godown. Search was then conducted in the godown and seizure was made. The seized articles : included 4,362 bags of rice weighing 3,72,270 kgs. 206 bags of wheat each weighting 95 kgs. stock and rate board of Siliguiri Cereals Company, Agent, Tea Association of India, Second Mile Sevok Road for rice and wheat containing no note about quantity and price of the commodities. As produced by Basudev Agarwala, unloading Slip Books, Xerox copy of Licence bearing No. C 4617 of Nava Bharat Flour Roller Mill valid up to 31-3-94 and one unloading Slip Book were also seized. During the enquiry no papers and documents were produced in respect of Siliguri Cereals Company and it was also learent that the proprietor, Omraomal Goyal ( the petitioner herein) fled away from the mill compound through backdoor on arrival of police at the gate of the mill. The two accused Basudev Agarwala and Suresh Kumar Sharma were arrested and produced at Bhactinagar P. S. One Subrata Lahari, an employee of Siliguri Cereals Company produced certain documents as exibils in the case including Despatch Note (Challan Book) in the name of Siliguri Cereals Company, Manturam Road, Siliguri Bazar dated 28- 6-94 to 27-7-94, Xerox Copy of agreement between Siliguri Cereals Company and the Tea Association of India, Stock Register (unauthenticated) of wheat and rice showing opening balance of wheat on 1-8- 94 and rice on 1 -7-94 as 207 qnts. 24 kgs .and 3,944 qnts. 35 kgs. respectively. On perusal of the agreement (by the complainant DEB Inspector) it was found that the second party, Siliguri Cereals Company was to stock the cereals of the first party, Tea Association of India at his cost separately in his godown at Silliguri and the second party was to do work for procurement and storage of the said food grains within the limitation and restriction imposed or to be imposed by the Government and was not entitled to do anything in contravention of the pro visions of law. The proprietor of Siliguri Cereals Company and the proprietor of Nava Bharat Flour Roller Mill violated the condition of the agreement by storing the unaccounted rice and wheat in the premises of Nava Bharat Flour Roller Mill situated at Salugara in the district of Jalpaiguri. The FIR was lodged against the arrested accused persons and the present petitioner Omraomal Goyal who is the pro prietor of both Nava Bharat Flour Roller Mill and Siliguri Cereals Company situated at Manturam Road, Siliguri, Dist. Darjeeling alleging contravention of the provisions of para 3, West Bengal Decla ration of Stocks and Prices of Essential Commodities Order 1977; paras 3 and 4 of the West Bengal Rice and Paddy (Licecing and Control) Order 1967 and para 3 of the West Bengal Rice (Restrictions on Movement) Order 1977, thereby attracting Section 7(1)(a)(ii) E. C. Act as well as contravention of Section 8 of the West Bengal Anti-profiteering Act, 1958. What is recorded above is the gist of the contents of the FIR lodged in this case by the DEB Inspector and it is on this FIR the police investigation has been started. Simultaneously, a confiscation proceeding was also taken under Section 6A of the E. C. Act before the Collector E. C. Act, Jalpaiguri.
3. The contention of the petitioner is that the police investigation should be quashed on the ground that the FIR does not disclose commission of any cognizable offence. It is also the contention of the petitioner that there was an agreement between the Tea Association of India and Siliguri Cereals Company of which the petitioner is the proprietor, for procuring, receiving and storing foodstuff for sup ply and distribution of the same to different tea gardens by the petitioner as agent of the Tea Association of India. It is the further contention of the petitioner that the godown of the Siliguri Cereals Company was subsequently shifted to the premises of the Nava Bharat Flour Roller Mill under intimation to the Tea Association of India as well as to the authorities of the Food and Supply Department. It is argued by the learned Advocate for the petitioner that the West Bengal Rice (Restrictions on Movement) Order 1977 as mentioned in the FIR is not applicable to the case and it is also conceded by the learned Advocate for the respondents that the same is not applicable to the facts and circumstances of the case. But the mere fact that the West Bengal Rice (Restrictions, on Movement) Order is not applicable is by itself no ground for quashing the investigation when the violation of certain other provisions of law has been also alleged in the FIR we now proceed to examine the contention of the learned Advocate for the petitioner that those provisions are also not attracted to this case. As we have seen, in the FIR violation of paras 3 and 4 of the West Bengal Rice and Paddy (Licencing and Control) Order 1967, also has been alleged. Para 3 of the said Licencing and Control Order 1967, inter alia, prohibits a person from acting as a dealer except under a licence or registration certificate granted under the said Order. "Dealer" has been defined in para 2(d) of the Licencing and Control Order 1967 as a person who is engaged in any business or undertaking involving sale, purchase for sale or storage for sale or transfer of rice or paddy, etc. The contents of the FIR include allegation of sale of rice to different shopkeepers of the Salugara Bazar on every hat day, being Monday. Therefore a person selling rice to shopkeepers of the Bazar from the godown of the Nava Bharat Mill every hat day prima facie answers the definition of 'dealer' and as such he is required to possess licence or registration certificate, as the case may be under Section 3 of the Licencing and Control Order 1967. Obviously no such licence/registration certificate was produced and the petitioner also does not claim to possess any such licence or registration certificate. Even in a prosecution the burden of proof that he has the necessary licence or document rests under Section 14, E. C. Act on the person who is prosecuted paragraphs 4 and 5 of the said Licencing and Control Order, 1967, also put certain restrictions, inter alia, on storage for sale above a specified quantity of rice as well as on sale of rice. As we have seen a very huge quantity of rice has been seized in this case for which no licence/registration certificate could be produced, and the specific allegation is that rice was being sold regularly to the shopkeepers of the Bazar from that godown. Prima facie therefore para 3 of the said Licencing and Control Order, 1967, is attracted in this case, at least for the purpose of investigation. The learned Advocate for the petitioner however seeks shelter for the petitioner under para 22 (iv) of the said Rice and Paddy (Licencing and Control) Order, 1967. The said para 22(iv) provides that nothing in the said Order shall apply inter alia to the Tea Association of India and their authorised agents in respect of their undertakings for supply of rice or paddy to workers of the tea estates in their membership subject to the condition that the Association or the authorised agent, as the case may be, shall furnish details of purchases and supplies of rice and paddy made by them or on their behalf and such other particulars to such officers and in such manner as may be specified by the Collector. It is streneously argued by the learned Advocate for the petitioner that in view of the said para 22(iv)' the provisions of the said Rice and Paddy (Licencing and Control), Order, 1967 are not applicable to the petitioner as he has been acting as an agent of the Tax Association of India for precurment storage and supply of foodstuff to the tea gardens who are members of the said Association. This argument, in my view, is wholly untenable at this stage because the question whether the condition mentioned in Section 22(iv) has been satisfied is a matter for investigation and the Investigating Officer is course of his investigation is also required to enquire whether the condition mentioned therein has been satisfied so as to make para 22(iv) applicable to the case, if at all. It is not for the Court to make a parallel or pre emptive investigation in the matter at this, stage. Secondly, and more seriously, the allegation in the FIR is that sale of rice to the shopkeepers of the Bazar was being made regularly every week from that godown of the petitioner. Such activities cannot come within the purview of para 22(iv) of the Rice and Paddy (Licencing and Control) Order, 1967, far less within the scope of the agreement between the petitioner and the Tea Assoication of India, taking advantage of the agreement with the Tea Association of India for procurement, storage and supply of foodstuff to the different tea gardens of such Association if the petitioner has been carrying on un authorised dealings in rice by supplying rice to the shopkeepers of the Bazar in violation of the provision of law, such activities cannot obviously receive the protection of para 22(iv) of the Rice and Paddy (Licencing and Control) Order, 1967. The allegations contained in the FIR require investigation and there is no question of slopping the investigation when the allegations in the FIR regarding unlawful activities are very specific.
4. As regards the allegation of violation of para 3 of the Declaration of Stocks and Prices of Essential Commodities Order, 1977 it is firstly argued by the learned Advocate for the petitioner that there is no specific allegation in the FIR regarding non-display of list either in Form A or Form B, as may be applicable, and as is referred to in the said para 3 of the Declaration of Stocks and Prices Order, 1977. The said para 3 requires display of list by every wholesaler or retailer in Form B indicating the opening stock and the wholesale or retail price, as the case may be, of each essential commodity held on each day. It is the contention of the learned Advocate for the petitioner that the FIR does not contain any allegation regarding any such list in Form B. He further submits that what is mentioned in the FIR is the stock and rate board of Seliguri Cereals Company. A reference to Form B shows that it must contain, inter alia, the name of the article, price per unit and opening stock as on date. Para 3(2) of the Declaration of Stocks and Prices Order, 1977 also speaks of display of list indicating the opening stock and price of each essential commodity held on each day. A recourse to the commensense of under standing things leaves no scope for me to miss that the stock and rate board mentioned in the FIR alludes to the list in the appropriate form as mentioned in para 3 of the said Order. In the FIR the seized stock and rate beard has been described as the stock and rate board (of Siliguri Cereals Company) for rice and wheat containing no note about quantity and price of the commodities. This therefore directly attracts para 3 of the said Declaration of Slocks and Prices Order, 1977.; Secondly, about the applicability of the said Declaration of Stocks and Prices Order, 1977 it is, aruged by the learned Advocate for the petitioner that the said order is no more in force because the said Order was issued by the Governor purportingly in exercise of the powers conferred by Section 3 of the E.C. Act read with the Government of India, Ministry of Agriculture (Department of Food) Order No. GSR 316(E) dated the 20th June, 1972, and the Ministry of Industry and Civil Sup plies, Department of Civil Supplies and Co-operative Order No. SO 681 (E) dated the 28th November, 1974 but the said GSR 316(E) dated 20th the June, 1972 has been subsequently superseded by notification No. GSR 800 dated the 9th June, 1978 issued by the Ministry of Agriculture and Irrigation (Department of Food) which has been annexed as part of Annexture-'G' to the revisional application at page 89. It is true that the said Ministry of Agriculture and Irrigation (Department of Food) notification No. GSR 800 dated the 9th June, 1978 purports, in exercise of powers conferred by Section 5 of the E. C. Act and in the supersession of the Order by the Government of India, Ministry of Agriculture (Department of Food) No. GSR 316(E) dated the 20th June, 1972, to authorise the State Government also to make orders in respect of matters specified in certain clauses of sub-section (2) of Section 3 of the E. C. Act in relation to foodstuff subject to certain conditions mentioned therein. It is argued on behalf of the petitioner that since by the Government of India GSR 800 dated the 9th June, 1978 the earlier GSR 316(E) dated the 20th June, 1972, has been superseded, the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 issued by the Governor in exercise of the powers conferred by Section 3 of the E. C. Act read with the said GSR 316(E), also ceases to be in force as soon as the said GSR 316(E) is superseded by the subse quent GSR 800. It may be noticed here that the authority delegated to the State Government under GSR 800 is exactly and verbatim the same as the authority delegated under the GSR 316(E) which was purportingly superseded by the GSR 800. In Nand Kishore v. Emperor, AIR 1945 Oudh 214 : (1945 (46) Cri LJ 575), a learned single Judge held after due consideration that there is an essential distinction between an Act or Order which is re pealed and on which is superseded the proceedings in respect of a breach of a superseded Order can be commenced when the Government has effected the purpose of the superseded Order by another Order. The learned Judge has traced the source of the distinction between the two terms 'repeal' and 'supersede' and has aptly demonstrated by taking re course to sound authorities that while repeal obliterates that which is repealed (except as to transactions past and closed) as if it had never existed, the effect of superseding an Act or Order on the other hand is not to obliterate is altogether, the learned Judge has reiterated, rightly, I must say with great respect, that an Act or Order is said to be superseded where a later enactment or order effects the same purposes as an earlier one by repetition of its terms or otherwise. Similar view also has been expressed by a learned single Judge of the erstwhile Mysore High Court in Mustafa v. State of Mysore, 1963 (1) Cri. LJ 372 and the learned Judge virtually followed the Oudh decision (supra). 1 find no reason to differ. That apart I am of the opinion that in case of this nature where a statutory Order is superseded or repealed by another statutory Order which re-enacts the same provisions with or without modification the principle embodied in Section 24 of the General Clauses Act, 1987 will squarely apply as a sound tenet of wholesome con struction. The said Section 24 makes provision for continuation of orders, etc. issued under an enactment repealed and re-enacted. It provides, inter alia, that where a Central Act or Regulation, after the commencement of the General Clauses Act, 1987, is repealed and connacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule form or bye-law made or issued under the provisions so re-enacted. Applying the principle of Section 24 of the General Clauses Act to the present caseat must also be held that in spite of the supersession of the GSR 316(E) dated the 20th June, 1972 by the subsequent GSR 800 dated the 9th June, 1978 which renacts verbatim the superseded provision of GSR 316(E), the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 shall be deemed to have been made or issued under the authority of GSR 800 dated the 9th June, 1978 and that being so the investigation in respect of violation of the provisions of the West Bengal Dec laration of Stocks and Prices of Essential Commodities Order, 1977 is quite tenable and there is no question of quashing such investigation.
5. In view of the alleagations in the FIR the provisions of the West Bengal Anti-profiteering Act, 1958 are also prima facie attracted in this case at this stage for the purpose of investigation. Section 6 of the said Act requires every dealer, unless exempted, inter alia, to keep true account of any scheduled article acquired, held or sold by him, etc. The allegation in the FIR includes the allegation of non-maintenance of accounts. Rice is included in the first schedule of the Anti-profiteering Act, 1958, Section 2 of the said Act defines 'dealer' as any person carrying on the business of selling any scheduled article and such definition also includes a producer, importer, wholesaler or retailer. The allegation in the FIR is that the petitioner was selling rice to the shopkeepers of the Bazar without maintaining true account and that being so the provisions of the West Bengal Anti-profiteering Act, 1958 are also prima facie attracted for the purpose of investigation. There is, therefore, absolutely no substance in the contention advanced on behalf of the petitioner that the FIR docs not prima facie disclose any cognizable offence. On the other hand, I find that the FIR pointedly discloses prima facie violations of such provisions as would rightly attract Section 7(1)(a)(ii) of the E. C. Act and Section 8 of the West Bengal Anti-profiteering Act and as such there is no question of quushing the investigation or the FIR at this stage. The investigation will proceed according to law. I have no hesitation to record that the Court will be inviting chaos for the administration of criminal justice to the detriment of the interest of the community at large if the power to quash police investigation at the threshold is liberally exercised even in cases of this nature.
6. Since I have found that the FIR prima facie discloses offences under the E. C. Act and W. B. Anti-profiteering Act. I also find no reason to interfere with the confiscation proceeding started under Section 6A of the E. C. Act before the Collector, E. C. Act, Jalpaiguri. As I understand the petitioner has been given opportunity of hearing by the Collector, E. C. Act, in the said confiscation proceeding and I also understand that the Collector has made some order of confiscation in that proceeding. By an interim order dated 12-9-94 this Court directed that if any order of confiscation is passed the same shall not be given effect to for certain period. Subsequently by order dated 19-9-1994 the said interim order was extended to continue till the delivery of judgment by this Court in this case. I do not find any reason why this Court should at this stage embark on an examination as to whether the confiscation order that might have been passed by the Collector, E. C. Act, in the meantime is justified or not. The petitioner if aggrieved by the order of confiscation that might have been passed by the Collector, E. C. Act, Jalpaiguri may prefer an appeal to the appropriate authority under Section 6C of the E. C. Act. Since the interim order is going to lapse with effect from this day the petitioner will be entitled to prefer an appeal before the appropriate authority under Section 6C of the E. C. Act within one month from this date. During this period of one month or till the preferring of an appeal under Section 6C of the E. C. Act, whichever is earlier, the order of confisaction that might have been passed 6y the Collector, E. C. Act. shall not be given effect to. In view of the discussions earlier made this revisiorml application stands dismissed. The police investigation shall proceed according to law. The confiscation order that might have been passed by the Collector, E. C. Act, Jalpaiguri shall not be given effect to within one month from this date or till an appeal is preferred against the said order under Section 6C of the E. C. Act, whichever is earlier. There will however be no order as to cost.