PAWAN KUMAR GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Rule is at the instance of the claimant-petitioner, Pawan Kumar Gupta, being directed against an order dated December 6, 1972, passed by Sri L. N. Roy, senior Municipal Magistrate, Calcutta, in Misc. Case No. 44 of 1972, rejecting the claim of the petitioner under section 88(6A), Criminal Procedure Code.

(2.) The facts relevant for appreciating the points raised can be put in a short compass. A complaint was filed by a Food Inspector of the Corporation of Calcutta before the learned senior Municipal Magistrate, Calcutta, under section 16(1) (a) (i) read with section 7(1) of the Prevention of Food Adulteration Act, 1954, against one Kailash Chandra Agarwalla, the proprietor of Kailash Stores are 2A Deshapriya Park Road, Calcutta, and also one Gopal Agarwalla described as the person-in-charge of the local affairs of the business and also the seller Gopal appeared in the case but Kailash could not be apprehended. The learned Magistrate found that the police neglected in executing the Writ of Proclamation and Attachment. Ultimately, the shop viz., the Kailash Stores was seized and sealed on the strength of the writ of attachment issued on November 24, 1972. The Writ of Proclamation was also executed at about the same time. The claimant -petitioner, Pawan Kumar Gupta, filed an application before the senior Municipal Magistrate for the release of the shop from attachment on the ground amongst others that he was a bona fide purchaser for value of the stock-in -trade lying in the shop and had been running the business at that place since March 10, 1972. It was further averred that he had also acquired considerable quantities of other articles from different parties and the said article belonged to him entirely. The verbal agreement between Kailash Chandra Agarwalla and the claimant was ratified by an agreement executed on September 2, 1972, and the latter has been paying rent to the landlord in respect of the shop. On November 24, 1972 the police sealed the shop room in the absence of the claimant-petitioner and without making any inventory seized quite considerable stock-in-trade stated to be worth over Rs. 10,000 lying in the shop at the time. On enquiries he came to know about the case under section 16(1) (a) (i) of the Prevention of food Adulteration Act, 1954, as having been started against the aforesaid Kailash Chandra Agarwalla and another and he further came to know that when the said accused No. 1 failed to appear therein, a warrant of arrest was issued as also a proclamation of attachment pursuant whereto the Police had sealed the shop-room with the stock-in-trade belonging to the petitioner. Accordingly, an application was filed on November 27, 1972, before the learned Magistrate for a recall of the order of seizure of the goods and for breaking open the seal and, in course of the enquiry that followed, the petitioner examined two witnesses and several documents were proved. The learned senior Municipal Magistrate, however, by his order date December 6, 1972, rejected the prayer of the petitioner. This order has been impugned and it forms the subject-matter of the present Rule.

(3.) Mr. Ajit Kumar Dutta, Advocate (with M/s. Dilip Kumar Dutta, Kanahailal Kondoi and Sovendu Sekhar Roy, Advocates), appeared in support of the Rules while Mr. Arun Kumar Mukherjee, Advocate appearing on behalf of the State, opposed the Rule. The contention raised by Mr. Dutta is of two dimensions, viz., (i) that there has been a non-conformance to the procedure established by law, vitiating all the orders on and from July 7, 1972, including the ultimate order passed on December 6, 1972, under section 88(6A), and (ii) that on merits also the impugned order dated December 6, 1972, is unwarranted, untenable and uncalled for. Mr. Arun Kumar Mukherjee appearing on behalf of the State joined issue. He submitted that there had been no non-conformance to any procedure established by law as alleged or t all; and that on merits also the claim petition filed by the petitioner is not maintainable. He also raised an objection to the maintainability of the Rule on the ground of the remedy already provided for in submission-section (6D) to section 88, Criminal Procedure Code.