Skip to content


Pawan Kumar Gupta Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ1368
AppellantPawan Kumar Gupta
RespondentThe State of West Bengal
Cases ReferredHukumchand Boid v. Kamala
Excerpt:
- .....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 24-11-1972. 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 is a bona fide purchaser for value of the stock-in-trade lying in the shop and has been running the business at that place since 10-3-1972. it was further averred that he had also acquired considerable quantities.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is at the instance of the claimant-petitioner, Pawan Kumar Gupta, being directed against an order dated 6-12-1972 passed by Shri I,. N. Roy, Senior Municipal Magistrate, Calcutta, in Misc. Case No. 44 of 1972. rejecting the claim of the petitioner under Section 88(6-A), Criminal P. C.

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 at 2-A Deshapriya Park Road, Calcutta and also one Gopal Agarwalla described as Ihe 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 24-11-1972. 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 is a bona fide purchaser for value of the stock-in-trade lying in the shop and has been running the business at that place since 10-3-1972. It was further averred that he had also acquired considerable quantities of other articles from different parties and the said articles belonged to him entirely. The verbal agreement between Kailash Chandra Agarwalla and the claimant was ratified by an agreement executed on 2-9-1972 and the latter has been paying rent to the landlord in respect of the shop. On 24-11-1972 the police sealed the shop room in the absence of the claimant petitioner and without making any inventory, seized quite a 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 27-11-1972 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 dated 6-12-1972 rejected the prayer of the petitioner. This order has been impugned and 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 Rule; 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., (1) that there has been a non-conformance to the procedure established by law, vitiating all the orders on and from 7-7-1972 including the ultimate order passed on 6-12-1972 under Section 88(6-A); and (2) that on merits also the impugned order dated the 6th December, 1972 is unwarranted, untenable and uncalled for. Mr. Arun Kumar Mukherjee appearing on behalf of the State joined issue. He submitted that there has been no non-conformance to any procedure established by law, as alleged or at 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 Sub-section (6-D) to Section 88, Criminal P. C.

4. The first dimension of Mr. Dutta's contention relating to procedure consists again of two different facets, viz., a non-conformance to the mandatory provisions of Section 87(1); and a non-compliance with the provisions of Section 87(2), Criminal P. C.| The steps of reasoning of Mr. Dutta on the; first facet are (a) that the sine qua non of any action under Section 87(1), Criminal,' Procedure Code is 'reason to believe' that the person against whom warrant of arrest has; been issued has absconded or has been con-j cealing himself so that such warrant cannot be executed; and (b) that on such satisfaction only the Court concerned may publish j a written proclamation, requiring the person concerned to appear at a specified place and at a specified time within a particular period from the date of publication of the proclamation. Mr. Dutta submitted that in this case, the materials on record would make it clear that far from having any such 'reason to believe' that the person concerned, Kailash Chandra Agarwalla, had absconded, the learned magistrate himself was still awaiting the execution report of the warrant of arrest issued against him. Mr, Mukherjee con-t&ided; however that the numerous orders passed in this context would make it quite clear that the accused concerned was avoiding arrest and lying concealed and, therefore, the requirement of Sub-section (1) to Section 87, Criminal P. C. was duly satisfied, justifying the learned magistrate's direction for the publication of the writ of proclamation. For a proper appreciation of the respective contentions, a reference is necessary to the order-sheet and the orders dated 7-7-1972, 5-10-72 and 25-11-72 are material. On 7-7-72 the learned Magistrate passed the following order 'Issue fresh W/A at once against accd. Kailash giving full particulars therein. To 8-9-1972 for E/R of Fresh W/A. Also issue Proclamation and Attachment against accused Kailash fixing 8-9-1972 for E/R of the same.' On 8-9-1972 the learned Magistrate recorded that the execution reports of the W/A and of Proclamation and arrest were not received and on 5-10-1972 he ordered that fresh W/A and Proclamation and Arrest to be issued against Kailash, fixing 25-11-1972 for E/R and production of the accused. The first part of the order passed on 25-11-1972 refers merely to the absence of any execution report of the warrant of arrest and the P. & A. received from the police. The latter order passed on the same date relates to the receipt of the E/R of W/A and P & A. Mr. Dutta submitted in this connection that it was apparent from the records that the learned Magistrate had erred in holding that the execution report of the warrant of arrest was in fact received inasmuch as it was not in fact so received. In any event that touches only the fringe of the issue and by and large, it is abundantly clear that the learned Senior Municipal Magistrate had not reached that stage of satisfaction when he could be said to have 'reason to believe' that the warrant of arrest issued could not be executed. Otherwise there was no point in issuing fresh warrant of arrest. This is not all. The simultaneous issue of both the processes, namely, Warrant of Arrest and P. & A. which are ex facie contradictory, rules out such a satisfaction in the mind of the Presiding Officer, within the bounds of Section 87(1), Criminal P. C. This being so, I agree with Mr. Dutta's contention that the condition precedent to Section 87(1), Criminal P. C. has not been satisfied and accordingly the order issuing Proclamation and Arrest under the said sub-section has been illegal and improper, vitiating the order of attachment made and the ancillary orders passed.

5. There is also a considerable force behind Mr. Dutta's contention of a non-conformance to the provisions of Sub-section (2) to Section 87 of the Code. The three clauses (a), (b) and (c) enjoined thereunder are conjunctive and not disjunctive. The factum of a valid publication very much depends on the satisfaction of each of these clauses. It is pertinent in this context to refer to the Process-server's report. The relevant report dated the 24th November, 1972 is as follows; 'Duly published by pasting one copy of the proclamation on door of Kailash Stores. The other copy has been displayed in thana's notice board.' On this report of publication, the Court proceeded to take the various steps under Section 88 and ultimately rejected the claim preferred by the objector-petitioner under Sub-section (6-A) to Section 88. In the first instance it is not at all established that the person concerned ordinarily resided at the Kailash Stores within the purview of sub-clause (a). In the second place, though the display of the notice on the notice board of the thana may be taken to indicate a conforrnance to sub-clause (b), there is still a non-confor-mance to sub-clause (c) because there is no. whisper of a submission that the copy of the proclamation was affixed to some conspicuous part of the Court house. Mr. Mukherjee appearing on behalf of the State contended that such non-conformance would be a mere irregularity and in any event would not ultimately vitiate the order in view of the very long period of absconsion of the accused concerned. It is difficult to agree with the said submission. The intention of the legislature as incorporated in the relevant provisions would rule out such a submission. The principles of interpretation of statutes rule out redundancy and to give effect to Mr. Mukherjee's argument would be contrary to the principles of such interpretation and make the provisions contained in the three clauses under Sub-section (2) to Section 87. Criminal Procedure Code redundant. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry reported in AIR 1920 PC 181 at p. 186 that 'effect must be given, if possible to all the words used, for the legislature is deemed not to waste its words or to say anything in vain.' I respectfully, agree and I hold that there has been alsoj a non-comformance to the provisions of sub-i section (2) to Section 87, Criminal P. C.

6. It is relevant now to consider the point raised by Mr. Mukherjee based on the provisions of Sub-section (3) to Section 87. The provisions are as follows:

A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

Mr. Mukherjee contended that in any event when the learned Senior Municipal Magistrate in the latter order passed on 25-11-1972 had clearly observed that the writ of proclamation and attachment have been duly executed, the presumption under the said subjection (3) takes effect and it must be deemed that the proclamation was duly published fulfilling the requirements of the section. It is difficult to agree with Mr. Mukherjee. In the first place the observation contained in the order dated 25-11-1972 is not in fact 'to the effect that the proclamation was duly published on a specified day' in order to be conclusive evidence of the requirement of the section being complied with. Secondly the provisions contained in Sub-section (3) to Section 87, Criminal P. C. do not rule out the requirements of the Indian Evidence Act and do not in any event override the provisions contained in Sections 62, 64 and 65 thereof. The presumption referred to in Sub-section (3) only arises when the requirements of the section have been duly complied with, A reference in this context may be made to the observations of the Judicial Committee in the case of K. R. Easwaramurthi Goundan v. The King-Emperor, reported in 71 Ind App 83 : (1944) 45 Cri LJ 721 (PC). Lord Wright delivering the judgment observed at page 91 that 'Sections 62, 64 and 65 of the Evidence Act define the only evidence which the law permits in order to prove a warrant of arrest, and that is, under Section 62 of the Act' and he further proceeded to observe at page 92, in the context of the provisions under Section 87(3), Criminal P. C, that 'Their Lordships cannot read these words as overriding the requirements of the Evidence Act, or as making the proclamation evidence that the warrants had been issued.' I respectfully agree with the said observations and applying the same to the facts of the present case I hold that the contentions raised in this behalf by Mr. Mukherjee cannot be given effect to as otherwise it Will result in a voyage of discovery beyond the bounds of the statute.

7. The non-conformance of Section 87(1) and (2), Criminal P. C. is but a non-conformance to the procedure established by law. The well-known principles laid down by Jesse, M. R. in the case of Taylor v. Taylor; reported in (1876) 1 Ch D p. 426, were approved of and applied by the Judicial Committee in the case of Nazir Ahmed v. King Emperor, reported in 63 Ind App p. 372 Lord Roche delivering the judgment observed at pages 381-82 that 'where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.' I respectfully agree and I further hold that such a conformance is all the more necessary after the passing of the Constitution. Article 21 lends assurance to the same. The orders following such a non-conformance, on and from 7-7-1972, including the ultimate order dated 6-12-1972 passed under Section 88(6-A), Criminal P. C, therefore stand vitiated. The first dimension of Mr. Dutt's contention accordingly succeeds.

8. In view of my findings on the first dimension of Mr. Dutt's contentions, it is not necessary to determine the second dimension of the arguments relating to Ihe merits of the claim preferred and I leave the same open for being decided by the Court below. I make it quite clear however that I make no observations on the same.

9. One other point now abides consideration viz., the objection raised by Mr. Mukherjee, based on the provisions of Section 88(6-D), Criminal P. C. The provisions contained therein arc as follows:

Any person whose claim or objection has been disallowed in whole or in part by an order under Sub-section (6-A) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims.

Mr. Mukherjee contended that the proper remedy in such cases is to proceed under Sub-section (6-D) and hot under Section 439, Criminal P. C. Mr. Mukherjee's contention overlooks the fact that the provisions under Sub-section (6-D) provide only an alternative remedy and do not lay down any bar to the exercise of the revisional jurisdiction of the High Court, or the exercise of its inherent jurisdiction. Even if the order was passed otherwise in conformance to the procedure established by law, the party aggrieved would have the right to prefer a revisional application therefrom. The order passed by the learned Senior Municipal Magistrate, however, in this case cannot claim that immunity. The powers of the High Court remain unfettered and as was observed by Sir John Woodroffe in the case of Hukumchand Boid v. Kamala-nand Singh reported in (1.906) ILR 33 Cal 927 at p. 930 that 'for my part I am always slow to believe that the Court's powers are unequal to its desire to order that which it believes to be just.' The ancillary contention also of Mr. Mukherjee accordingly fails.

10. In the result, I make the Rule absolute; set aside all the orders passed on and from 7-7-1972, based on an apparent non-conformance to the procedure established by law including the order dated 6-12-1972, rejecting the claim of the petitioner under Section 88(6-A), Criminal P. C. passed by Shri L. N. Roy, Senior Municipal Magistrate, Calcutta in Misc. Case No. 44 of 1972; and I direct that the case shall go back to the Court below for being disposed of in accordance with law and expeditiously from the stage reached on 7-7-1972 by some other learned Magistrate, in the light of the observations made above and in conformance to the procedure enjoined under the Criminal P. C.

11. Let the records go down as early as possible.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //