Calcutta High Court
M/S. R K B K Limited & Anr vs State Of West Bengal & Ors on 19 June, 2009
Author: Maharaj Sinha
Bench: Maharaj Sinha
W.P. No. 102 of 2007
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Original Side
IN THE MATTER OF :
M/S. R K B K LIMITED & ANR.
VERSUS
STATE OF WEST BENGAL & ORS.
BEFORE :
THE HON'BLE JUSTICE MAHARAJ SINHA
DATE :19 June 2009.
For the petitioners :
Mr. L.C.Bihani,senior advocate
Mr. Ram Anand Agarwala,advocate
Ms. Nibedita Pal,advocate
Mr. Ramesh Dhara,advocate
For the State :
Mr. Indrajit Sarkar,advocate
Ms. Sujata Adhikary,advocate
The Court :- The petitioners have challenged the search and
seizure and the FIR being NTS P.S. Case No. 4 of 2007 dated 24
January 2007 under Section 7(1)(a)(ii) of the Essential
Commodities Act, 1955 mainly on the ground that the police
authority had no jurisdiction to search the petitioners' place of
business without proper authorisation of the Competent Authority
under paragraph 15 of West Bengal Kerosene Control Order, 1968.
One more ground has been taken that the police authority has not
2
mentioned any specific provision of the said Control Order, 1968,
allegedly violated by the petitioners which, according to the
petitioners, is punishable under the Essential Commodities Act and
on this ground alone the proceedings initiated by the police
authority against the petitioners should be deemed illegal and as
such quashed.
According to the respondents, the search and seizure were
made on the basis of the authorisation dated 19 March 1986 of the District Magistrate, Burdwan and non-mentioning of violation of specific provision/s of the Control Order, 1968 does not vitiate the proceedings.
According to the petitioners, the Director or the District Magistrate has to issue a specific order of authorisation in favour of a person not below the rank of Sub Inspector of Food & Supplies Department, Government of West Bengal or a Sub Inspector of Police. What is essential is a specific written order of authorisation authorising an officer not below the rank of Sub Inspector in the Department of Food & Supplies, Government of West Bengal or a Sub Inspector of Police for entering and for inspection of a premises of any Kerosene Agent or Dealer for the purposes mentioned in Paragraph 15 and its provisos (a), (b) and
(c) of the Control Order, 1968. Since no specific written authorisation was made in favour of the officer or officers mentioned in Paragraph 15 of the Control Order, the subsequent 3 acts by the officer or officers concerned on the basis of an illegal or in any event utterly improper authorisation of search and seizure of the premises in question of the petitioners, cannot be sustained. The proceedings which was initiated on the basis of such search and seizure should also be declared illegal and as such quashed.
Having considered the writ petition and the affidavits used by the parties and the submissions made by Mr. Bihani,learned senior Counsel appearing for the petitioners and Mr. Sarkar, learned Counsel appearing for the respondents, I am of the view that the Director or the District Magistrate, as the case may be, has to specifically authorise in writing to the officer or officers named in Paragraph 15 of the Control Order, 1968 and in the absence of a specific written authorisation of the Director or the District Magistrate, as the case may be, the premises of an Agent or a Dealer cannot be searched or the officer or rather the officers concerned cannot even enter the premises for search and seizure in the first place.
In the instant case, the police authority concerned had carried out the search and seizure without proper authorisation of the Competent Authority, or rather on the basis of a blanket authorisation of such authority of the year 1986. Moreover, the police authority concerned did not allege as to which provision or 4 provisions of the Control Order, 1968 were violated by the petitioners.
Therefore, the entire proceedings is bad in law and liable to be set aside.
Accordingly, search and seizure and FIR, being NTS P.S. Case No. 4 of 2007, both dated 24 January 2007 are quashed.
Thus the writ petition is disposed of in terms of the above order.
There will be no order as to costs.
All parties are to act on a xerox signed copy of this order on the usual undertakings.
(MAHARAJ SINHA, J.) skc