SAFIKUR RAHAMAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS order will govern the revisional application as well as the writ petition which have been heard together.

(2.) IT appears that before February, 1982 cement was a controlled commodity and nobody was entitled to purchase cement and use the same freely. By an order dated 28. 2. 82 entitled as the Cement Control (Third amendment) Order, 1982, the Central Government, under the powers conferred by sections 184 and 25 of the Industrial (Development and Regulation)Act, 1951, ordered that cement produced in a Cement Plant would be of two categories viz. , "levy Cement" and "non-levy Cement" it was enjoined by that Cement Control Order, 1982 that an cement producers would have to retain and dispose of 66. 6% of the installed capacity as per Cement Control order, 1967 and that as regards non-levy cement, i. e. cement produced in excess of 66. 6% of the installed capacity the manufacturers and dealers would be entitled to sell, dispose of and deal with non-levy cement freely. There was thus virtually de-control of non-levy cement in excess of 66. 6% of the installed capacity in a cement plant. On or about 28. 7. 82, the writ petitioner as well as the petitioner in criminal revision, Safikur Rahaman, had in his go-down at Malda town about 175 bags of cement. On that date, he was bringing from Calcutta another 240 bags of non-levy cement purchased by him for his own use and brought the same to his residence at Malda by lorry No. BHI 8472. While the cement was in the process of being unloaded from that lorry at about 4. 15 P. M. on 28. 7. 82, those 240 bags of cement as well as the 175 bags of cement in the go down were seized by one. M. Chatterjee, Sub-Inspector of English Bazar P. S. and the petitioner as well as the driver of the truck were arrested under section 41 of the Code of criminal Procedure. English Bazar P. S. G. D. No. 1069 dated 28. 7. 82 was made. On 29. 7. 82, the petitioner and the driver of the truck were produced before the learned Sub-Divisional Judicial Magistrate, Malda and were granted bail. The petitioner made a prayer on that date before the learned Sub-Divisional judicial Magistrate for return of the seized cement to him. The learned magistrate called for a report from the Investigating Officer. On 31. 7. 82, the prayer of the petitioner for return of the seized cement was rejected. The petitioner moved a revisional application before the learned Sessions judge, Malda. The said revisional application, being Criminal Revision No. 46 of 1982, was admitted on 2. 8. 82. The operation of the impugned order of the learned Magistrate dated 31. 7. 82 was stayed till the hearing of the re visional application. The re visional application was heard by the learned sessions Judge on 9. 8. 82 and was allowed on 11. 8. 82. By that order dated 11. 8. 82, the learned Sessions Judge. Malda directed the learned Magistrate to release the seized cement to the petitioner as early as possible after obtaining a bond from his. In the meantime before that order of release of the seized cement was passed by the learned Sessions Judge, Malda, there was an ex parte direction for sale of the seized 415 bags of cement by the earned Collector, Malda, on 6. 8. 82 on the basis of a report from the Officer-in-Charge, english Bazar P. S. dated 29. 7. 82. By that order dated 6. 8. 82 the learned Collector, Malda, directed the Officer-in-Charge, English Bazar p. S. to sell the entire seized stock of cement to the Zilla Parishad, Malda, at controlled price. Subsequently, in pursuance of the order passed by the learned Sessions Judge, Malda on 11. 8. 82 in Criminal Revision No. 46 of 1982, the petitioner furnished requisite bond on 13. 8. 82. On 16. 8. 82, the petitioner filed a petition in the court of the learned Sessions Judge, Malda, for getting back the seized cement. The learned Sessions Judge called for an explanation from the Investigating Officer as it was alleged by the petitioner that the Officer-in-Charge, English Bazar Police Station had flouted the order of the Court. The explanation was submitted by the Officer-in-Charge, english Bazar P. S. on 3. 9. 82 through the learned Public Prosecutor, malda, to the effect that the order dated 2. 8. 82 passed by the learned Sessions judge was not placed before him with the result that the entire stock of cement was delivered to the Zilla Parishad, Malda, on 10. 8. 82. On the basis of this explanation submitted by the Officer-in-Charge, English Bazar p. S. , the learned Sessions Judge called for an explanation from the learned sub-Divisional Judicial Magistrate, Malda, as to why the stay Order, as passed by him on 2. 8. 82 was not communicated by the office to the Officer-in-Charge, english Bazar P. S. An explanation was submitted in the matter by the learned Sub-Divisional Judicial Magistrate-in-Charge, Malda. The explanation was that the copy of the stay order was communicated to the officer-in-Charge, English Bazar P. S. on 7. 8. 82 and was received at English bazar P. S. on that date. After getting this explanation, the learned Sessions judge asked the Officer-in-Charge, English Bazar P. S. to show cause by 17. 9. 82 as to why he should not be appropriately proceeded against for making a false statement to the court about non-communication of the stay order to English Bazar P. S. Thereafter, another explanation was submitted by the officer-in-Charge, English Bazar P. S. on 7. 9. 82. The explanation was that one home-guard had received the said stay order, which was not brought to his notice. In that explanation the Officer-in-Charge, English Bazar P. S. tendered unqualified apology. The explanation was accepted by the learned sessions Judge on 27. 9. 82. Subsequently on 27. 9. 82, the petitioner filed another petition in the court of the learned Sessions Judge, stating certain facts. The matter was fixed on 5. 10. 82 for hearing. On 5. 10. 82, the learned Public prosecutor, Malda, filed a petition along with a letter issued by the District engineer, Malda Zilla Parishad, stating that the major portion of the confiscated cement had already been consumed for construction of the Administrative building of English Bazar Panchayet Samity, Malda. On the basis of this letter from the District Engineer, Malda Zilla Paris had, ho further action in the matter was taken by the learned Sessions Judge, Malda. There plaint after, the petitioner moved this court under section 482 of the Code of criminal Procedure as well as under Article 227 of the Constitution for quashing the Confiscation Case No. 23 of 1982 along with the order dated 6. 8. 82 passed by the learned Collector, Malda, for sale of the seized cement. There were also some other prayers including a prayer for return of the seized cement or payment of the market value thereof to the petitioner.

(3.) THE case of the petitioner in the re visional application was that the Confiscation Case No. 23 of 1982 was being proceeded with without any authority of law. It was alleged that the explanation of the officer -in- Charge, English Bazar P. S. about the sale of the seized cement on 10. 8. 82 was correct when 175 bags of cement were physically taken away from the custody of the father of the petitioner on 12. 8. 82 and could not be sold on 10. 8. 82.