CHOUTMALL SAROGI ALIAS AGARWALLA Vs. STATE

JUDGEMENT

(1.) THIS is an application for bail on behalf of the accused-applicant, Choutmall Sarogi alias Agarwalla, arising out of orders dated the 28th December, 1973 and the 29th December, 1973, passed by the learned Chief Presidency Magistrate, calcutta in Section G. Case No. 851 dated 27. 12. 73 under Rules 43 (5) and 36 (6) (i) of the Defence of India Rules, 1971 read with Section 120b of the indian Penal Code. The application is with notice to the State and- is opposed.

(2.) THE facts leading on to the application can be put in a short compass. The accused-applicant is stated to be a director of M s. Shree Bajrang Commercial Co. (P) Ltd. having its office at 13, Brabourne Road, Calcutta and the resides at 11-B, Jadndra Mohan Avenue, calcutta. On the 27th December, 1973 he was arrested by the police on the charge that he, in collusion with three other directors of the company, hag been withholding the unloading of salt brought by ships berthed at the Calcutta Port from Suarastra and Tuticorin, with a view to create an artificial scarcity of salt and a case, being Section G case No. 851 dated 27. 12. 73, was started under Kules 43 (5) and 36 (6) (i) of the defence of India Rules, 1971 read with section 120b of the Indian Penal Code. The investigation is still pending. The accused-applicant was produced on 28. 12. 73 before Shri R P. Choudhury, taking up the file of the learned Chief presidency Magistrate, Calcutta, and on an application for bail being moved on his behalf, the learned Magistrate, by his order of the same date while directing the accused applicant to be in police custody till 3. 1. 74 refused the prayer for his bail at that stage and issued notice on the learned Public Prosecutor to appear on the date fixed for hearing. By a later order passed on the same date, on an application made by one sajjan Kumar Agarwalla, the learned magistrate further directed that the seized salt be returned to the owner or owners on an indemnity bond of rs. 1,00,000/- after proper verification. The prayer for bail was reiterated on the 29th December, 1973, when Shri dibyendu Dutt, who v/as taking up on that date the file of the learned Chief presidency. Magistrate, Calcutta, rejected the prayer for bail at that stage but observed that the matter would be further heard on the date fixed, when the case diary was to be placed before him. These orders were impugned and the present application for bail was moved in the High Court during: the christmas Vacation on Sunday, the 30th December, 1973. Our learned brother, Mr. Justice N. C. Mukherji, was pleased, by his order of the same date, to direct that the accused-applicant, be released on an interim bail of rs. 16,000/- with two sureties of rs. 8,000/- each, subject to confirmation by the Division Bench; that the matter be placed on 3. 1. 74 before the Division bench for hearing; and that the office was to inform the learned Deputy legal Remembrancer. The matter has now appeared before MS for confirmation. During the hearing an additional affidavit on behalf of the accused applicant affirmed on 3. 1. 74 was filed on 4. 1. 74, with copy thereof served on the state.

(3.) MR. Asoke Kumar Sen, Senior advocate (with Mrs. Monjula Bose and messrs Dilip Kr. Dutt, Nawal Kishore choudhury and P. B. Cliakraboriy, Advocates) appearing in support of the application on behalf of the accused applicant made a submission of three dimensions. Firstly, that the offence was not a grave one committed in the back-drop of an emergency, inasmuch as per the existing arrangements a reserve of ten percent of me imported salt has to be kept in the Salt Gola at salkia, ruling out thereby any possibility of shortage giving rise to an emergency and attracting the provisions of the Defence of India Act or the rules framed thereunder; secondly, that the subject-matter of the offence, being "food", does not come within the definition of an essential commodity within the purview of Rule 36 (3) of the Defence of. India Rules, 1971 and thirdly that in view of the strike by- the All India Boatmen's association. holding up the unleading operations during the material period from the 22nd December, 1973 to the 27th December, 1973, the offence complained of does not come within the ambit -of a prejudicial act. as defined under rule 36 (6) (i) of the Defence of india Rules, 1971 and as such the penalty enjoined under rule 43 (5) of the said Rule is not attracted. Mr. Promode Ranan Roy, Junior Government Advocate, appearing on behalf of the State joined issue on all the points; and raised further a preliminary objection to the maintainability of the application for bail and the interim order passed on it, because of a purported, non-conformanee to Rule 184 of the defence of India Rules, 1971.