KALLOL KUMAR MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Criminal Revision No. 3 of 1991 relates to FIR No, 29 dated 20-6-87 of Jamuria P.S. On 20-6-87 at about 22.15 hours one Bijoy Kumar, Sub-Inspector of Central Industrial Security Force (CISF) camp at Kunustoria, P.S. Jamuria lodged a written complaint with the officer-in-charge, Jamuria Police Station, Dist. Burdwan alleging that on 19/20-06-87 while he along with CISF party, Kunustoria camp were on patrol duty for guarding against illegal trade/transportation of coal, they at about 00.30 hours noticed near Chanda More on P. T. Road that the truck bearing no. WBG 4729, loaded with coal was proceeding towards Calcutta from Asansol side. The truck was stopped by the CISF party and 4 persons were found to be there in the truck including driver. The driver on being asked to produce relevant documents in support of the loaded coal stated that the documents were with the owner of the coal who was following behind. Since after waiting for sometime none appeared to produce the documents, the driver produced the loading advice, road challan/ bill No. 45203 dated 10-6-87 issued by Manager Agent, Kapasma Colliery, Dist. Dhanbad (Bihar) in favour of Nemai Chard Ghosh, Ranaghat, Nadia (W.B.). On being suspicious the CI$F party asked the driver to take the track at Kunustoria camp for verification and on the next day, i.e., 20-6-87 the said Sub-Inspector of CISF made an enquiry at Kapasara Colliery and came to know from the Agent of that Colliery that coal was loaded in the said truck at Kapasara Colliery under loading advice, road challan/road bill no. 65588 dated 19-6-87 issued in favour of Advisor, Security HQ ECL, Sanctoria. On further enquiry from the driver/khalasi it was revealed that coal was being transported and diverted with the connirance of Kelyan Kumar Mukherjee of M/s. A. T. Enterprise, Transport Contractor and General Order Supplier of Jashidi and N. K. Raghabhan, Advisor security HQ ECL, Sanctoria to district Nadia and that this practice was going on since long and some ECL employees were also involved in this smuggling ring. What is described above is based on the averments made in the written complaint lodged by the Sub-Inspector, CISF at the P.S. on 20-6-87 at about 22.15 hours. In the written complaint it was also stated by the Sub-Inspector, CISF that offences under E.C. Act and I.P.C. were committed by diverting the coal to a wrong destination by forging documents. On the basis of the said written complaint the officer-in-charge of Jamuria P.S. recorded the first information report, being FIR no. 29 dated 20-6-87 under sections 7(1)(a)(ii) of the E. C. Act (Act X/55) and sections 468/471/120B I.P.C. Ultimately on completion of investigation police submitted two charge-sheets, one being charge-sheet no. 61 dated 20-7-89 under section 7(1) (a) (ii) read with section 8 of the E.C. Act and section 120B IPC against 14 accused persons including the present petitioners and the other being charge-sheet No. 62 dated 20-7-89 under section 107/408/ 468/471/477A/419 IPC read with section 120B IPC against them.

(2.) The facts in the Criminal Revision No. 2 of 1991 are more or less similar with certain distinguishing features. There also a truck bearing no. BPR 8911, loaded with coal, while moving towards Calcutta along G. T. Road was stopped near Ranisar More on suspicion by the CISF party and on being asked the driver produced loading advice, road challan-cum-coal bill no. 65586 dated 19-6-87 issued by Manager, Kapasara Colliery in favour of Advisor security HQ ECL, Sanctoria and as per those documents the coal (soft coke) was to be delivered to Advisor Security HQ ECL, at Sanctoria for distribution amongst the ECL employees staying at Sanctoria. As per the loading challan the coal should have been unloaded at Sanctoria but the driver after making a criminal conspiracy with others took the truck towards Calcutta and on being intercepted the driver and the khalasi revealed that they were advised to take the coal upto Punjabi More where further challan would be given to take it further and it was learnt that this practice of smuggling of coal with the connivance of Advisor, security HQ ECL, Sanctoria was going on for long and that some ECL employees were also involved in this smuggling ring. On the basis of the written Complaint containing the allegations noted above the O.C., Raniganj P.S. recorded the Raniganj P.S. FIR No. 17 dated 20-6-87 under sections 7(l) (a) (ii) of the E.C. Act and sections 479/411/120B IPC. Ultimately on completion of investigation police submitted two separate charge-sheets, in this case also, one being charge-sheet no. 93 dated 20-7-89 under section 7 (1) (a) (ii) read with section 8 E.C. Act, 1955 and section 120B IPC against 13 accused persons including the present petitioners and the other being charge-sheet no. 94 dated 20-7-89 against the same set of accused persons under sections 407/408/477A/419 read with section 120B IPC.

(3.) The petitioners in both the revisional proceedings have challenged all the charge-sheets submitted by police and prayed for quashing the same. Neither in any of the FIRS nor in any of the charge-sheets it is disclosed as to what order was violated so as to attract the provisions of section 7 of the Essential Commodities Act. What is mentioned in this connection in FIR is diversion of coal to a different destination. It is argued by the learned Advocate for the petitioners that the coal in both the cases being soft coke coal and such coal having been the decontrolled by the appropriate orders of the Government no offence punishable under section 7(1) E.C. Act has been committed even if it is assumed that such coal was being diverted to a different destination. In this connection, the learned Advocate for the petitioners attracted my attention to the Government of India, Ministry of Steel & Mines, notification being SO No. 2181 published in the Gazette of India Extra-ordinary dated 18-6-1964. It appears that by that notification issued in exercise of the powers conferred by clauses 12A, 12C and 12D of the Colliery Control Order, 1945 as continued in force by section 16 of the Essential Commodities Act, 1955, the Central Government lifted the ban on transport, diversion, purchase, acquisition, etc. of soft coke certain other categories of coal. Similar notification was also issued under SO No. 2426 dated 24-7-1967 inter alia in respect of coking coal not required for metallurgical consumers. In view of such notification the mere allegation that the soft coke coal, although lifted under valid authority from a colliery in Bihar was being diverted to a different destination in West Bengal would not make out a case of violation of para 12B of the Colliery Control Order, 1945 or for that matter, any provision of the Essential Commodities Act and that being so, patently section 7(1)(a)(ii) or section 8 E.C. Act is not attracted in these cases. It is however argued by the learned Advocate for the State that after the advent of the Coal Mines (Nationalisation) Act, 1973 the aforesaid decontrol notifications are not effective nor applicable. In tins connection, he referred to sections 3, 11 and 28 of the Coal Mines (Nationalisation) Act, 1973. The said section 3 inter alia speaks of transfer of the right, title and interest of the specified coal mines to the Central Government free from all incumbrances. Section 11 of the said Act makes provisions relating to management etc. of coal mines. Obviously the provisions of these sections have no clash with the aforesaid decontrol orders issued by the Government. The only other provision of the Coal Mines (Nationalisation) Act, 1973 referred to by the learned Advocate for the State in this connection is section 28. The said Section says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act or in any decree or order of any court or tribunal or other authority. The learned Advocate for the State however could not point out any provision of the said Act in respect of which the aforesaid Government notifications could be said to be inconsistent. The argument of the learned Advocate for the State that the aforesaid Government orders are or the Colliery Control Order, 1945 itself is no more applicable after the advent of Coal Mines (Nationalisation) Act, 1973 is therefore found to be untenable. The provisions of the E.C. Act not being attracted to the allegations made, the charge-sheets submitted in both the cases under section 7(1)(a)(ii) E.C. Act are found liable to be quashed for that reason alone. The other points raised by the learned Advocate for the petitioners in this connection, are therefore not required to be considered.