Calcutta High Court
M/S. Nemai Enterprises & Anr vs The State Of West Bengal & Ors on 17 June, 2008
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W. P. No. 237 of 2008
G. A. No. 823 of 2008
M/s. Nemai Enterprises & Anr.
Vs.
The State of West Bengal & Ors.
Advocates for the Petitioner: Mr. Kalyan Bandopadhyay (Sr. Adv.)
Mr. R. Agarwal
Advocates for the Respondent
No. 1 to 4: Mr. Indrajit Sarkar
Mr. S. K. Pandey.
Advocates for the Respondent
No. 5 to 7: Mr. Milan Bhattacharya
Judgment On: 17.6.2008
ANIRUDDHA BOSE, J.:-
1. The petitioners in the present writ petition are a partnership firm and one of its partners. This firm, comprising of three partners of which the petitioner no. 2 is one, was appointed as a distributor under the West Bengal Public Distribution System (Maintenance & Control) Order 2003 (the "2003 Order" in short). The grievance of the petitioners in this writ petition is over certain penal steps taken against the petitioners on the allegation of violation of various provisions of the 2003 Order. There are allegations against the partners of the petitioner no. 1 and certain other individuals of commission of certain offences under the Indian Penal Code as well, to which I shall refer to in the later part of this judgment. The specific acts which are complained against by the petitioners in this writ petition are sealing of their godown by the civil supplies authorities, seizure of several trucks by which certain quantities of rice and wheat were being transported on their behalf, and prayer has been made for an order for quashing a First Information Report (F.I.R.) lodged by one Madan Mohan Mondal, assistant Controller of food and supplies department, Purulia against three persons connected with the petitioner no. 1 and seven other persons. The said officer had lodged a written complaint with the officer-in-charge, Purulia Town Police Station alleging certain breaches of the 2003 Order, and this written complaint was recorded as an F.I.R. On the aspect of sealing of their godown, however, the petitioners have not pressed their case in course of hearing as it was submitted on their behalf that the authorities had permitted the petitioners to operate their godown after the initial act of sealing.
2. This writ petition is contested by the police authorities and the food and supplies department by filing independent affidavits-in-opposition. They have been represented by their learned Advocates, Mr. Milan Bhattacharya and Mr. Indrajit Sarkar. Preliminary objection had been taken in this matter as regards the maintainability of the present writ petition on three counts by Mr. Bhattacharya. The first ground on which he seeks dismissal of the writ petition is existence of alternative remedy. At the initial stage objection was taken by Mr. Bhattacharya that this Bench does not have the determination to hear out this matter as the subject of the present writ petition does not come within the scope of business allocated to this Bench by His Lordship The Hon'ble Chief Justice. However, he did not to press this objection during the later stage of this proceeding. The other ground on which preliminary objection was taken was that the writ petition had not been filed by all the partners and it was contended that the firm in question was an unregistered firm, and hence all the partners of the firm should have joined as petitioners to maintain this writ petition.
3. Before I deal with the arguments advanced by the learned Advocates appearing on behalf of the respective parties, I would like to narrate certain facts which are relevant and material for effective determination of the controversy involved in this writ petition. The petitioner no. 1, Nemai Industries was granted a license as a "distributor" under the provisions of the 2003 Order on 19th March, 2007. I find from the license, a copy of which has been made annexure "P1" to the writ petition that the same has been issued in favour of the petitioner no. 1, in its trade name, and the names of three individuals including that of the petitioner no. 2 has been recorded in the license as the partners thereof. The dispute in the present proceeding realtes to two delivery orders issued in favour of the petitioners by the authorities for lifting nine hundred ninety four quintals of "B.P.L. rice" implying rice meant for below poverty line consumers, and four hundred and sixty quintals of "A.P.L. Wheat", implying wheat meant for consumers above the poverty line. These commodities were to be lifted from the government godown at Chharra in the district of Purulia and taken to the petitioners' godown at Sirkabad also in the same district. The petitioners claim to have had engaged one Sanjay Dey, also of Purulia Town for lifting these commodities from the government godown and transporting the same to the petitioners' godown. The case of the petitioners is that said Sanjay De had lifted a part of the commodities and loaded them on five trucks on 3rd March 2008 for this purpose. The trucks, however, did not reach the destination within the scheduled time and it has been contended on behalf of the petitioners that upon making enquiry they found that the drivers of two trucks upon reaching Purulia Town refused to proceed to Sirkabad, which is alleged to be an insurgent infested area. Such situation, according to the petitioners prompted the transporter to try for alternative arrangement for transportation and he could arrange for one truck only which was reloaded, and the commodities loaded in another truck were being unloaded for storage in the custody of the transporter. At that point of time, the officers from the district enforcement branch of Police appears to have had seized all the trucks as also the unloaded commodities, and detained some of the drivers and helpers of these trucks as well as said Sanjay De. Thereafter, the officer of the department of food and supplies visited the Purulia Town Police station and made a complaint to the Officer-in-charge of the said police station, which was recorded as a First Information Report. The relevant portion of the First Information Report is reproduced below:
"I do hereby lodged complain against (1) Sri Sanjoy Dey S/o late Ajit Dey of Arun Dutta Street, P. S. Purulia Town. (2) Sekh Saju S/o late Ohab of Digudi Mahalla P.S. - Purulia Town, (3) Dipak Singh S/o late Lalu singh of Mahato Para P.S. Do (4) Shymal Sen S/o late Aswini Sen (5) Nathu Narsaria of Rash Mella R.C. Babu Street, P.S. - Purulia Town, (6) Bubai Dey S/o late Ajit Dey of Arun Dutta Street, (7) Nemai Kundu, (8) Dipak Modak, (9) Nitya Hari Kundu, (10) Monoranjan Dutta (7-10) are of M/s Nemai Enterprise and Others to the effect that on 3- 3-2008 at 17.30 Hrs. on receipt of a credible information regarding clandestine transportation of Rice and Wheat belonging to Food and Supplies Purulia from Sr. P. K. Gupta Dy. S.P. DEB Purulia, visited Purulia Town P.S., Purulia Rash Mella Cinema Hall Gali, Purulia and FCI Godown Charrah, Purulia Dist. - Purulia as per order of District Controller Food and Supplies Purulia and held a through enquiry. It was learnt that the aforesaid Five Loaded Truck and one unloaded Truck were already detained by Police at Rash Mella Purulia under P.S. Purulia Town.
I also visited Chharra FCI Godown and contacted Sri Anil Kr. Das Manager FCI Charrah and could learn that the above mentioned Trucks-Loaded with wheat and rice of BPL and APL of Food and Supply Purulia were received by Sri Monojit Ghatak, Inspector F & S Purulia on 3-3-08 in favour of DCF&S, Purulia and were despatched from the Godown on 3-3-08 afternoon.
It was also learnt during enquiry and pursuing the documents with Sri Monojit Ghatak (Inspector DCF&S, PRL), that all the above mentioned Wheat & Rice belonging to Food & Supply Govt. of West Bengal were issued in favour of M/s Nemai Enterprise of Sirkabad P.S.- Arsha Dist.- Purulia and also learnt that the said articles were supposed to be unloaded at the Godown of M/s Nemai Enterprise of village Sirkabad, P.S.- Arsha but for clandestine manner adopted by said accused person those were being unloaded in Purulia Town instead of Sirkabad with a motive to sell those articles in the open market at high price depriving the poor and needy card holders of BPL & APL in Arsha P.S.-Area.
It was also learnt that the above noted persons made criminal conspiracy to make such type of unlawful activities and thereby tried to create and artificial crisis amongst the poor people of the society after forming an illegal business racket, hence, all the above noted accused person have committed an offence punishable U/s 7(I) (a) (ii) of EC Act X/55/120B-IPC violating the specified control order, vide Govt. Notification No. 5880/FS. SECTT II/FOOD/4-P20 dated 22-12- 2003 and Para 17(iii) and para 18(ii) of EC Act."
4. Mr. Bandopadhyay, learned Senior Advocate appearing for the petitioners submitted that the petitioners as distributor did not commit any breach of their duties or responsibilities as specified in the 2003 Order which would warrant any action against them. He further argued that in the absence of an order from the learned magistrate, it was impermissible for the police to start suo motu investigation into the allegations relating to violation of the provisions of the 2003 Order, as the offence under the Essential Commodities Act 1955 is not a cognizable offence. As regards the preliminary point on maintainability on the count of status of the petitioner no. 1, he submitted that the petitioner is a registered firm and in support thereof he produced a copy of a receipt issued by the Registrar of Firms, West Bengal showing receipt of Rs.300/-, bearing no. 0300534. Relying on the copy of this receipt, he submitted that this was issued in response to the application of the petitioner no. 1 for registration of the firm.
5. Responding to the preliminary objection taken on the ground of availability of alternative relief, which in this case would mean a proceeding under the provisions of Section 482 of the Code of Criminal Procedure, he submitted that the Court exercising the Constitutional Writ Jurisdiction is the appropriate Court for adjudicating the question of validity of a First Information Report. He relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana Vs. Ch. Bhajan Lal & Ors. reported in 1992 Supp. (I) SCC 335 and also an unreported judgment of an Hon'ble Division Bench of this Court in APO No. 279 of 2004 arising out of W.P. No. 659 of 2004 delivered on 22nd July 2004 (Abhijit Sett Vs. The State of West Bengal & Ors.). The other authority relied upon by him was an unreported decision of an Hon'ble Single Judge of this Court in the case of M/s. Purushottamdas Jhunjhunwala & Anr. Vs. The State of West Bengal & Ors. delivered on 5th October 2005 in W.P. NO. 1948 of 2005.
6. The case of the police authorities on the other hand, as pleaded in the affidavit-in-opposition is that the trucks in question had deviated from the alignment they were instructed to take, and entered an area known as new cinema gali, by the side of which exist two godowns of essential commodities, belonging to two individuals, one of them being the brother of Sanjay Dey. There was commotion in the area when these five trucks arrived there and started unloading on the empty truck standing there. It was then only the police had rushed to the spot and thereupon enquired into the matter. They had seized all the six trucks in presence of witnesses and it is alleged in the affidavit-in- opposition that from the statements of the witnesses made under Section 161 of the Code of Criminal Procedure, they came to learn that this was a normal device adapted by the petitioner no. 1 to divert the essential commodities meant for BPL beneficiaries and sell them in open market in Purulia Town. In course of argument Mr. Bhattacharya submitted that investigation in the matter was complete and the police was ready to file charge-sheet in the matter.
7. Further submission of Mr. Bhattacharya is that an offence under the Essential Commodities Act is a cognizable offence and it is well within the authority of police to commence investigation on the allegation of violation of any of the provisions of the said Control Order in view of the provisions of Section 10A of the Essential Commodities Act, 1955.
8. Mr. Bhattacharya relied on a decision of the Hon'ble Supreme Court, being Shashikant Vs. Central Bureau of Investigation reported in (2007) 1 SCC 630 in support of his submission that in a case of this nature the Writ Court ought not to interfere in criminal investigation, except in exceptional cases. He also relied on the decision of the Hon'ble Supreme Court in the case of State of Orissa Vs. Saroj Kumar Sahoo (2005) 13 SCC 540. In this decision, the Hon'ble Supreme Court set aside the judgment of the High Court in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, by which it had quashed proceedings initiated against several individuals on the basis of certain First Information Reports. In this decision, the Hon'ble Supreme Court held:-
"14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 CrPC, it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal, it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 CrPC, which cannot be termed as evidence without being tested and proved."
The other authority relied upon by him is a Bench decision of this Court in the case of State of West Bengal Vs. Susanta Kumar Saha reported in (2003) 1 CHN 574 on the same point. His further case was that in the present proceeding, essentially factual disputes were involved and the Writ Court ought not to exercise its jurisdiction in such factual disputes. Mr. Bhattacharya submitted that the offence committed by the accused persons in this case are also triable under the provisions of Sections 406/409/120B of the Indian Criminal Code. It appears that a prayer was made by the investigating officer before the Chief Judicial Magistrate, in charge of Purulia for adding Sections 406 and 409 of the Indian Penal Code, in the case started against the accused persons, and such prayer was allowed. Certain other decisions of the Hon'ble Supreme Court was also relied upon by Mr. Bhattacharya, but as these authorities lay down the same proposition of law, I am not referring to them in this judgment.
9. Appearing for the food & supplies department and its officers, Mr. Sarkar submitted that though there my be misquoting of some provisions of Control Order in the complaint, a case for violation of the Control Order had been made out and as such the proceedings initiated against the petitioners ought to continue. He refuted the case of the petitioners that the First Information Report does not disclose any offence.
10. I shall take up the question as to whether this Bench has the determination for hearing out the present case, though Mr. Bhattacharya himself did not press this objection at the later stage of hearing. As this issue goes to the very root of present proceeding, I choose to determine this issue first. As per the allocation of business made by His Lordship The Hon'ble Chief Justice, the day this writ petition was moved and subsequently heard, this Bench had the determination to hear out cases relating to :
"Motions and Matters ready for hearing under Article 226 of the Constitution relating to Transport & Communication under Group VII and Regulations of Industries & Essential Commodities and various Central Orders under Group VIII and Applications relating thereto; Matters under Article 226 of the Constitution which are ready for hearing irrespective of classification of cases and irrespective of years and Application thereto;
Old matters (upto 2006) and senior citizen matters will be taken up on every Tuesday and Thursday according to determination."
11. The case of Mr. Bhattacharya was that since in this writ petition a prayer was made for quashing of an FIR, the subject of this writ petition pertains to the provisions of the Code of Criminal Procedure and the Bench having determination for hearing matters under the Group IX of the classification list (which relates to Residuary matters) contained in the Rules made by this Court under Article 226 of the Constitution of India has the exclusive jurisdiction to hear out this matter. I am of the opinion however, that since in this writ petition certain actions of the civil supplies authorities, deriving their power and jurisdiction from the 2003 Order are under challenge, and controversies involved in this writ petition arise out of construction of the said Order, this Bench having the jurisdiction to hear out matters relating to Essential Commodities, has the jurisdiction to hear out the instant writ petition. The impugned F.I.R. directly arises out the allegations of violation of the provisions of a Control Order promulgated under the Essential Commodities Act.
12. The other point on which preliminary objection has been taken is that the instant writ petition cannot be maintained in the name of the partnership firm as it is not a registered partnership firm. In his reply Mr. Bandopadhyay submitted that the firm is a registered firm and produced a copy of a receipt issued by the Registrar of the firms to which I have referred to in the earlier part of this judgment. The position of law is clear that in case of an unregistered firm, a suit cannot be maintained in the firm name. In the present case, however, I decline to dismiss the writ petition on this preliminary point. The reason for this is one of the partners of the firm is a petitioner in this proceeding. The main prayer in this writ petition is for quashing a First Information Report, and certain acts of the respondents have been challenged on the allegation of the same being contrary to law. The writ petitioner no. 2 on his own can sustain the proceeding to protect his own rights derived from the Constitution of India or conferred by the statute if the impact of such proceeding adversely affects such rights. The license in this case was granted in the name of the firm, and the license also records the name of the petitioner no. 2. In the complain, which was subsequently recorded as First Information Report, three individuals have been named and described to be "of Nemai Enterprise." Any criminal proceeding against the firm is likely to impact the petitioner no. 2, as a partner of the firm. Moreover, a specific case has been made out by the petitioners in their affidavit-in-reply to the affidavit-in- opposition filed on behalf of the police authorities that this is a registered firm. Under these circumstances, I am of the opinion that even if the name of the petitioner no. 1 is to be struck off from the array of the petitioners, the petitioner no. 2 can still maintain the petition. I choose not to adopt the former course either, as the petitioners have come out with a definite case in pleadings that the petitioner no. 1 is a registered firm.
13. I shall now address the question as to whether the writ petition shall be entertained or not having regard to the fact that a First Information Report is under challenge in the present writ petition. The authorities are uniform on the point that there is no absolute bar on a Writ Court entertaining an application for quashing of a First Information Report. The decision of the Hon'ble Supreme Court in the case of Bhajan Lal (supra) and also the Bench decision of this Court in the case of Abhijit Sett (supra) lay down this proposition of law. In fact, in the case of Abhijit Sett (supra), considering several authorities, the Hon'ble Division Bench of this Court was pleased to quash a First Information Report upon coming to a finding that the complaint and the Post Mortem Report did not disclose any offence, and on the question as to which would be the appropriate forum for deciding such issue, it was observed that the Writ Court was the appropriate Court. In the case of Bhajan Lal (supra), a seven point test has been laid down, and it would be well within the jurisdiction of this Court to quash a First Information Report, if it satisfies any one of these seven points. The decision of the Hon'ble Supreme Court in the case of State of Orissa Vs. Saroj Kumar Sahoo (supra), the same test has been referred to. Thus, in my opinion, if the case of a petitioner seeking quashing of a criminal proceeding comes within the said seven point test, then the exclusion rule so far as the writ court is concerned on the ground of there being an alternative remedy need not be very strictly applied. The seven point test laid down in the case of Bhajan Lal (supra) is reproduced below:-
"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 uncontroverted allegations made in the FIR or complaint and the evidence collected 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.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever 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 of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, 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."
14. The submission of Mr. Bandopadhyay is that the First Information Report fails to meet the first, second and seventh point of the test formulated by the Hon'ble Supreme Court in the case of Bhajan Lal. So far as the second point is concerned, I am of the view that since the provisions of Section 10A of the Essential Commodities Act specifically provides that any offence under the Essential Commodities Act would be a cognizable offence, the steps taken by the police authorities on their own would not ipso facto render the investigation or steps taken thereafter to be invalid. Mr. Bandopadhyay has submitted that since an offence under the Essential Commodities Act has not been included in the First Schedule to the Code of Criminal Procedure, the provisions of Section 10A of the 1955 Act would not transform the offence into a cognizable one. I am, however, unable to accept this argument. Section 2[c] of the Code of Criminal Procedure defines cognizable offence as:-
"Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant."
The definition of cognizable offence itself specifies that the list of first schedule to the Code is not exhaustive, and it may be specified under any other law. Thus if the legislature specifically mandates that an offence under a special statute would be a cognizable offence, irrespective of the fact as to whether the schedule to the Code of Criminal Procedure is amended or not incorporating such offence, such offence ought to be treated as a cognizable offence. The action of the police authorities taken in this matter without an order of magistrate thus cannot be held to be illegal.
15. I am also of the view that no case of mala fide has been made out in the present writ petition, though Mr. Bandopadhyay emphasised on this aspect strongly in course of hearing. There is a hint in the pleadings of the petitioners that the action against the petitioners were instigated by a rival. Also in course of hearing Mr. Ashok Banerjee, learned Senior Advocate sought to intervene on behalf of two individuals resisting the claims of the petitioners, but later on did not prosecute their case. From this fact, Mr. Bandopadhyay sought to contend that the entire proceeding was being conducted at the prompting of commercial rivals of the petitioners. But only from these facts, in my opinion, a case for mala-fide cannot be readily inferred. Sufficient pleadings are lacking in this case, on the basis of which criminal proceeding can be quashed at the threshold on the ground that such proceeding is manifestly attended with mala fide.
16. The decisions of the Hon'ble Supreme Court and of this Court cited by the learned Advocate for the respondents lay down that the jurisdiction of the Writ Court should be sparingly exercised if the applicant approaches the Court with a prayer for quashing an F.I.R. Such jurisdiction ought to be exercised in the rarest of the rare cases. But what would be the rarest of the rare cases? Should an applicant have to establish something beyond the seven-point test laid down in the case of Bhajan Lal (supra)? In my opinion, "the rarest of the rare cases" in the context of the present case would mean an outstanding case on merit, where a plain reading of First Information Report would ex-facie reveal that if every statement taken therein is found to be true, even then commission of no offence at all would be disclosed.
17. I am to examine now as to whether the First Information Report under challenge in this writ petition discloses any offence or not. In Section 7 of the Essential Commodities Act, 1955, punishment has been prescribed in the event any person contravenes any order made under Section 3 of the Act. Since the 2003 Order has been promulgated under the said provisions, contravention of any provision under the said Order would give rise to a criminal action. In the First Information Report, the relevant portion of which has been reproduced in the earlier part of this judgment, there is reference to certain provisions of the Control Order, the violation of which were complained of. In the complaint before the police authorities, allegations were made that the persons against whom complain was being filed were violating the "specified control order and para 17(iii) and para 18(ii) of the EC Act." On behalf of the petitioners, case was made out that the complain, subsequently recorded as First Information Report specify no offence except vague reference to certain provisions of Control Order, and the Essential Commodities Act. It is admitted position that the provisions of the 2003 Order referred to in the complaint does not relate to any offence attributable to a distributor. The irregularities referred to in paragraphs 17 and 18 relate to dealers only. The petitioner, firm, as a distributor could not be held to be liable for violation of the aforesaid provisions of the 2003 Order. To counter this submission of the petitioners, learned Advocates for the respondents based their arguments on two planks. It was contended that wrong reference to certain statutory provisions would not render a First Information Report invalid, if the same otherwise disclosed commission of an offence. The legality of the First Information Report was also sought to be defended on the ground that subsequently offences relating to Sections 406 and 409 of the Indian Penal Code were added to it.
18. As regards the addition of the aforesaid provisions of the Indian Penal Code in the case against the petitioners, Mr. Kalyan Bandopadhyay argued that such addition was in violation of the interim order of this Court, and these provisions of the Code ought not to be taken cognizance of while testing as to whether the First Information Report disclosed any offence or not. On 6th March 2008 this Court had passed an interim order directing that no further step may be taken against the petitioners on the strength of the complain or the First Information Report till March 20, 2008 or until further order, whichever was earlier without leave of the Court. This interim order was continued from time to time and prevailed on the day the impugned order was passed by Chief Judicial Magistrate, Purulia on 29th March 2008 allowing the application of the police authorities for adding Sections 406 and 409 of Indian Penal code in the case against the petitioners. It is well-settled legal position that if an act is committed or an order is passed in breach of an order of Court, no reliance could be placed on such order. Such order would be an illegal order. On behalf of the respondents, however, it was argued that there was no prohibitory order restraining the learned Magistrate from passing such order and application for addition of certain offences against the accused persons in a pending case could not be said to be steps taken against the petitioners. I do not, however, consider it necessary to examine as to whether addition of these two sections in the case against the petitioner constitutes violation of the order of this Court or not. Mere addition of such provisions is not what is to be looked at, but I am to see as to whether the First Information Report contains ingredients of the said offences under the Indian Penal Code.
19. Wrong reference of a provision of law in the First Information Report does not invalidate the proceeding itself. This position of law is well-established and does not require support from any authority. In the case of State of West Bengal Vs. Susanta Kumar Saha (supra), the Hon'ble Division Bench of this Court relied on a decision of the Hon'ble Supreme Court in the case of Rajesh Bajaj Vs. State N.C.T. of Delhi & Ors. (1999) 3 SCC 259. It has been held in that case:-
"If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated in details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be bereft of even the basic facts which are absolutely necessary for making out the offence."
In the complain, which was recorded as FIR, it has been stated that it was learnt during the enquiry and perusing certain document that the wheat and rice issued in favour of Nemai Enterprise were being unloaded in Purulia Town instead of Sirkabad with a motive to sell those articles in the open market at high price depriving the needs of poor card holders of BPL and APL in Ashra Police Station.
20. The duties and responsibilities of a distributor is specified in Clause 24 of 2000 Order is reproduced below:
"24. Duties and responsibilities of a distributor.- (i) Every distributor shall take adequate measures for lifting the allotted quantity of public distribution commodities and shall ensure the delivery of those commodities to the Dealers, who shall approach the distributor with an indent issued by the competent authority.
(ii) The distributor shall arrange for display of stock-board and rate-
board in a conspicuous place and shall maintain proper books of accounts pertaining to stock of different commodities, sale of commodities to the Dealers, cash memo books, returns of indents. Every distributor shall issue a cash memo against each sale of the commodities in the Dealers.
(iii) The distributor shall submit a return in Form R-1 along with the indent for allocation of public distribution commodities to the Sub- Divisional Controller, Department of Food and Supplies and after having the allocation order from the concerned Sub-Divisions Controller, Department of Food and Supplies, the distributor shall arrange for lifting of the commodities from the designated storage place, within two days from the date of allocation of the commodities.
(iv) Every distributor shall ensure adequate lifting and storage of public distribution commodities as may be allocated to him from time to time.
(v) The distributor shall ensure the storage of public distribution commodities if hygienic way and shall take quality maintenance measure including rodent control measure to ensure safe storage of the stock."
21. Thus one of the duties of the distributor is to ensure delivery of the commodities lifted by him to the dealers. If a distributor takes any step which would disrupt such delivery, that would constitute violation of the provisions of 2003 Control Order and this in turn would attract the penalty specified under the provisions of Section 7 of the Essential Commodities Act.
22. It cannot be scrutinised in this writ petition as to whether the allegations made against the distributor made in the First Information Report are true or not. In this writ petition, I am to examine whether such allegations if proved would render the distributor liable for breach of the provisions of the Control Order or for commission of an offence under the provisions of Sections 406 and 409 of the Indian Penal Code. The allegations in the First Information Report is that the rice and wheat, which belonged to the government of West Bengal and issued in favour of Nemai Enterprise were supposed to be unloaded at their godown in Sirkabad, but these were being unloaded in Purulia town with a motive to sell those articles in the open market at high price depriving the poor and needy cardholders of BPL and APL in Asra area. If what is alleged is true, would the same constitute violation of the 2003 Order? Would the same disclose commission of offences under the provisions of Section 406 and 409 of the Indian Penal Code? In my opinion, answer to both these questions has to be in the affirmative.
23. I have already referred to the duties and responsibilities of a distributor as contained in the Control Order. If the allegations made in the First Information Report are found to be true, then there would be breach in discharging practically all the duties of the distributors enumerated in paragraph 24 of the Control Order. On behalf of the petitioners, it was submitted that the entire allegations were imagined by the concerned officer, without any basis. But I do not that think in exercise of the Constitutional Writ Jurisdiction, there is any scope of testing as to whether the allegations were imaginary or real. The allegations made, in my opinion, are not inherently improbable or patently absurd for coming to a conclusion at the investigation stage that there is no ground for proceeding against the accused person. That exercise would involve appreciation of evidence. The test is whether the allegations, if proved, would disclose commission of an offence or not. I have already opined that it would. In the case of State of West Bengal Vs. Susanta Kumar Saha (supra), an Hon'ble Division Bench of this Court considered similar allegations and set aside an order of an Hon'ble Single Judge quashing a First Information Report. The principle of law laid down in that case applies to the present proceeding also.
24. On behalf of the petitioners, an unreported judgment of an Hon'ble Single Judge in the case of Purushottamdas Jhunjhunwala & Ors. (supra) was relied upon. In that case, His Lordship was pleased to allow a writ petition in which the legality of a proceeding involving search and seizure at the petitioners' godown was allowed. This judgment was delivered, however, in a different factual context, where written instruction of Director of District Distribution Procurement & Supply was produced before the Court conceding that there was no provision empowering the police/enforcement branch officials to enquire or conduct, search and seizure at the godowns of "MR. Distributors/MR Dealers". In the instant case, search and seizure of godowns of the petitioners is not in issue. Nor there is any concession on the part of the State respondents that the actions of the police authorities were without jurisdiction. This decision, for the reasons indicated above, does not assist the petitioners' case.
25. Mr. Bandopadhyay had also questioned the legality of the investigation on the ground that the district enforcement branch of the police had no jurisdiction to investigate into the alleged offence. I am prima-facie not satisfied that such steps on the part of the police authorities is without jurisdiction. Even if such allegation is true, I do not find such illegality (if it is illegal) to be of such magnitude which would warrant quashing of the entire proceeding by the Writ Court. It will be always open to the petitioners to take this defence before the competent Criminal Court.
26. Under these circumstances, the present writ petition fails and is accordingly dismissed. Interim orders passed in this matter stand dissolved.
27. An application was filed for addition of party by two individuals, Dhananjoy Kumar and Paramananda Kumar, being G.A. 823 of 2008. At the time of hearing, however, none appeared in support of this application. The same also stands dismissed.
28. There shall, however, be no order as to costs.
(ANIRUDDHA BOSE, J.)