OMRAOMAL GOYAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this revisional application under Section 482 Cr. P.C. read with Article 227 of the Constitution of India the petitioner has prayed for quashing the investigation started in Bhacti-nagar P. S. Case No. 165/94 under Section 7(1) (a) (ii) of the Essential Commodities Act and also for quashing the confiscation proceeding started under Section 6A of the said Act being E. C. Case No. 8/2 94-95 pending before the Collector under the E. C. Act, Jalpaiguri.

(2.) The petitioner has challenged the police inves tigation on the ground that the first information report on the basis of which the police investigation has been started does not disclose any cognizable offence. The F1R was lodged by DEB Inspector(s), Jalpaiguri on 2-8-94 at 01.25 hours. The gist of the FIR is noted hereunder. The DEB Officers, on. receipt of secret source information, approached under the direct supervision of the Dy. S. P. DEB Jalpaiguri, the main gate of Nava Bharat Flour Roller Mill situated at Salugara under P. S. Bhactinagar at about 9-15 hrs. on 1-8-94 and there intercepted two rickshaws loaded with four bags of rice (3 qnts 60 kgst) and five bags of rice (4 qnts. 50 kgs.) respectively while the rickshaw were coming from the mill towards its main gate. The Rickshaw pullers disclosed that they were engaged by Shri Krishna Prasad of Salugara Bazar to bring the rice from Nava Bharat Flour Mills to his shop situated at Salagura Bazar and at that time Krishna Prasad also appeared there and corroborated the statements of the rickshaw pullers and produced one 'chit' ad dressed to Saha Store issued by Basudev Agarwala, an employee of Nava Bharat Flouer Roller Mill in respect of rice S. F. (superfine) and rice 'mota' (coarse) and also divulged that every Monday the proprietor of Nava Bharat Flour Roller Mill sells rice to shopkeepers of Salugara Bazar as the dery is a hat day. Krishna Prasad led the raiding DEB party to the godown of the mill and there the raiding party found huge quantity of wheat and boiled and raw rice inside the godown. On demand for production of books of accounts the manager of the mill stated that he was simply the manager of the mill and had no knowledge about the books of accounts and further stated that Suresh Sharma and Basudev Agarwala were dealing with the rice and the wheat of the godown. Search was then conducted in the godown and seizure was made. The seized articles included 4,362 bags of rice, weighing 3,72,270 kgs. 206 bags of wheat each weighting 95 kgs. stock and rate board of Siliguiri Cereal Company, Agent, Tea Association of India, Second Mile Sevok Road for rice and wheat containing no note about quantity and price of the commodities. As produced by Basudev Agarwala, unloading Slip Books, Xerox copy of Licence bearing No. C 4617 of Nava Bharat Floor Roller Mill valid up to 31-3-94 and one unloading Slip Book were also seized. During the enquiry no papers and documents were produced in respect of Siliguri Cereals Company and it was also learnt that the proprietor, Omraomal Goyal (the petitioner herein) fled away from the mill compound through backdoor on arrival of police at the gate of the mill. The two accused Basudev Agarwala and Suresh Kumar Sharma were arrested and produced at Bhactinagar P. S. One Subrata Lahari, an employee of Siliguri Cereals Company produced certain docu ments as exhibits in the case including Dispatch Note (Challan Book) in the name of Siliguri Cereals Company, Manturam Road, Siliguri Bazar dated 28 6-94 to 27-7-94, Xerox Copy of agreement between Siliguri Cereals Company and the Tea Association of India, Stock Register (unauthenticated) of wheat and rice showing opening balance of wheat on 1-8- 94 and rice on 1-7-94 as 207 qnts. 24 kgs. and 3,944 qnts. 35 kgs. respectively. On perusal of the agree ment (by the complainant DEB Inspector) it was found that the second party, Siliguri Cereals Com pany was to stock the cereals of the first party, Tea Association of India at his cost separately in his godown at Silliguri and the second party was to do work for procurement and storage of the said food grains within the limitation and restriction imposed or to be imposed by the Government and was not entitled to do anything in contravention of the pro visions of law. The proprietor of Siliguri Cereals Company and the proprietor of Nava Bharat Flour Roller Mill violated the condition of the agreement by storing the unaccounted rice and wheat in the premises of Nava Bharat Flour Roller Mill situated at Salugara in the district of Jalpaiguri. The FIR was lodged against the arrested accused persons and the present petitioner Omraomal Goyal who is the pro prietor of both Nava Bharat Flour Roller Mill and Siliguri Cereals Company situated at Manturam Road, Siliguri, Dist. Darjeeling alleging, contravention of the provisions of para 3, West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977, paras 3 and 4 of the West Bengal Rice and Paddy (Licecing and Control) Order 7967, and para 3 of the West Bengal Rice (Restrictions oh Movement) Order 1977, thereby attracting Section 7(1) (a) (ii) E. C. Act as well as contravention of' Section 8 of the West Bengal Anti-profiteering Act, 1958. What is recorded above is the gist of the contents of the FIR lodged in this case by the DEB Inspector and it is on this FIR the police investiga tion has been started. Simultaneously, a confiscation proceeding was also taken under Section 6A of the E. C. Act before the Collector E. C. Act, Jalpaiguri.

(3.) The contention of the petitioner is that the police investigation should be quashed on the ground that the FIR does not disclose commission of any cognizable offence. It is also the contention of the petitioner that there was an agreement between the Tea Association of India and Siliguri Cereals Com pany of which the petitioner is the proprietor, for procuring receiving and storing foodstuff for sup ply and distribution of the same to different tea gardens by the petitioner as agent of the Tea Asso ciation of India. It is the further contention of the petitioner that the godown of the Siliguri Cereals Company was subsequently shifted to the premises of the Nava Bharat Flour Roller Mill under intima tion to the Tea Association of India as well as to the authorities of the Food and Supply Department. It is argued by the learned Advocate for the petitioner that the West Bengal Rice (Restrictions on Move ment) Order 1977 as mentioned in the FIR is not applicable to the case and it is also conceded by the learned Advocate for the respondents that the same is not applicable to the facts and circumstances of the case. But the mere fact that the West Bengal Rice (Restrictions, on Movement) Order is not applicable is by itself to ground for quashing the investigation when the violation of certain other provisions of law has been also alleged in the FIR we now proceed to examine the contention of the learned Advocate for the petitioner that those provisions are also not attracted to this case. As we have seen, in the FIR violation of paras 3 and 4 of the West Bengal Rice and Paddy (Licencing and Control) Order 1967, also has been alleged. Para 3 of the said Licencing and Control Order 1967, inter alia, prohibits a person from acting as a dealer except under a licence or registration certificate granted under the said Order. "Dealer" has been defined in para 2(d) of the Licencing and Control Order 1967 as a person who is engaged in any business or undertaking involving sale, purchase for sale or storage for sale or transfer of rice or paddy, etc. The contents of the FIR include allegation of sale of rice to different shopkeepers of the Salugara Bazar on every hat day, being Monday. Therefore a person selling rice to shopkeepers of the Bazar from the godown of the Nava Bharat Mill every hat day prima facie answers the definition of 'dealer' and as such he is required to possess licence or registration certificate, as the case may be under Section 3 of the Licencing and Control Order 1967. Obviously no such licence/registration certificate was produced and the petitioner also does not claim to possess any such licence or registration certifi cate. Even in a prosecution the burden of proof that he has the necessary licence or document rests under Section 14, E. C. Act on the person who is pros ecuted paragraphs 4 and 5 of the said Licencing and Control Order, 1967, also put certain restrictions, inter alia, on storage for sale above a specified quantity of rice as well as on sale of rice. As we have seen a very huge quantity of rice has been seized in this case for which no licence/registration certificate could be produced, and the specific allegation is that rice was being sold regularly to the shopkeepers of the Bezar from that godown. Prima facie therefore para 3 of the said Licencing and Control Order, 1967, is attracted in this case, at least for the purpose of investigation. The learned Advocate for the peti tioner however seeks shelter for the petitioner under para 22 (iv) of the said Rice and Paddy (Licencing and Control) Order, 1967. The said para 22(iv) provides that nothing in the said Order shall apply inter alia to the Tea Association of India and their authorised agents in respect of their undertakings for supply of rice or paddy to workers of the tea estates in their membership subject to the condition that the Association or the authorised agent, as the case may be, shall furnish details of purchases and supplies of rice and paddy made by them or on their behalf and such other particulars to such officers and in such manner as may be specified by the Collector. It is strenuously argued by the learned Advocate for the petitioner that in view of the said para 22(iv) the provisions of the said Rice and Paddy (Licencing and Control), Order, 1967 are not applicable to the petitioner as he has been acting as an agent of the Tax Association of India for procurement storage and supply of foodstuff to the tea gardens who are members of the said Association. This argument, in my view, is wholly untenable at this stage because the question whether the condition mentioned in Section 22(iv) has been satisfied is a matter for investigation and the Investigating Officer is course of his investigation is also required to enquire whether the condition mentioned therein has been satisfied so as to make para 22(iv) applicable to the case, if at all. It is not for the Court to make a parallel or pre emptive investigation in the matter at this stage. Secondly, and more seriously, the allegation in the FIR is that sale of rice to the shopkeepers of the Bazar was being made regularly every week from that godown of the petitioner. Such activities cannot come within the purview of para 22(iv) of the Rice and Paddy (Licencing and Control) Order, 1967, far less within the scope of the agreement between the petitioner and the Tea Association of India, taking advantage of the agreement with the Tea Associa tion of India for procurement, storage and supply of foodstuff to the different tea gardens of such Asso ciation if the petitioner has been carrying on unauthorised dealings in rice by supplying rice to the shopkeepers of the Bazar in violation of the provi sion of law, such activities cannot obviously receive the protection of para 22(iv) of the Rice and Paddy (Licencing and Control) Order, 1967. The allega tions contained in the FIR require investigation and there is no question of stopping the investigation when the allegations in the FIR regarding unlawful activities are very specific.