PRADIP KUMAR AGARWALLA Vs. STATE

JUDGEMENT

(1.) These two revisional applications have been heard together as the same facts and questions of law are involved in both the cases. Both the petitions are under section 482 Cr. P. C. for quashing the impugned proceeding arising out of Alipurduar P.S. Case No.289 of 1990 dated 18.11.90 under section 7(1)(a)(ii) of the Essential Commodities Act for violation of paragraph 3 of the Declaration of Stocks and Prices of the Essential Commodities Order, 1977 and paragraph 18(1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967.

(2.) The petitioners in the two cases Pradip Kumar Agarwalla and Satya Narayan Agarwalla are partners of M/s. Satya Narayan Rice and Oil Mills and carry on business of rice milling and hold a licence. On 18.11.90 the District Controller, Food and Supplies, Jalpaiguri along with other officers of the Food and supplies Department made a raid during Sunday which was a weekly holiday, at 11.30 A.M. and conducted search from 11.30 A.M. to 5.30 P.M. and seized various registers, stock books, rice and paddy etc. F.I.R. was lodged by the District Controller with the Alipurduar Police Station giving rise to the present case. The allegations against the petitioners are that the petitioner failed to maintain true and correct accounts and there was a discrepancy between the stock of paddy and rice shown in the registers and the actual stock found on weighment amounting to violation of paragraph-18(1) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 and non-writing of the stock board which amounted to violation of Para 3 of the Declaration of Stocks and Prices of the Essential Commodities Order, 1977.

(3.) Mr. Ghosh, learned Advocate for the petitioners in both the cases has challenged the impugned proceeding on two grounds. Firstly, it has been contended that the closing balance of 17.11.70 as per books of accounts in respect of rice and paddy does not reveal real discrepancy and shortage, if any, is covered by the permissible handling loss and the question of violation of paragraph 18 (1) does not and cannot arise at all. Secondly, it has been contended that the paragraph 19(e) of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967, so far it authorises to seize the stock of rice and paddy by any of the persons referred to in paragraph 19(1) on the basis of his 'reason to suspect' is ultra vires and beyond the competence of the State Government inasmuch as section 3(2)(j)(i) of the Essential Commodities Act authorises such seizure on the basis of 'reason to believe'. The expressions 'reason to believe' and 'reason to suspect' are not the same. The Central Government by notification No. G.S.R. 1111 dated 24th July, 1967 authorises the State 'Government to make orders under the provisions of section 3(2)(a) to (j) and the provision of section 3(2) (j) relates to search and seizure on the basis of 'reason to believe' and as such the State Government has no competence or authority or jurisdiction to make a provision for seizure on the basis of 'reason to suspect' and the said provision of seizure is contrary to and inconsistent with the provisions of section 3(2) (j) and to that extent the same is beyond the competence of the State Government and cannot be sustained in law. The search and seizure in this case are, therefore, illegal and without jurisdiction and the proceeding based on the same is also incompetent.