Skip to content


Deepchand Agarwalla and anr. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ281
AppellantDeepchand Agarwalla and anr.
RespondentState of West Bengal and ors.
Cases ReferredState of West Bengal v. Swapan Kumar
Excerpt:
- .....were acting as dealers or commission agents, since the central control order of 1977 read with the state control order of 1978 recognize commission agents and dealers independently.6. in order to appreciate the contentions it would be worthwhile to note at this stage diverse statutory provisions : under clause 2 of the central control order of 1977 dealer has been defined to mean a person engaging in the business of purchase, sale or storage for sale of any pulses, edible oilseeds or edible oils whether or not in conjunction with any other business and includes his representative or agent.7. commission agent has been defined to mean a commission agent as having in the customary course of business as such agent authority either to sell goods or to consign goods for the purposes of sale or.....
Judgment:
ORDER

Umesh Chandra Banerjee, J.

1. This writ petition is for quashing of an investigation commenced under Section 6A of the Essential Commodities Act on the basis of a First Information Report dt. 4th July, 1983 lodged by the Sub-Inspector of Police, Enforcement Directorate with the Officer-in-Charge, Burrabazar P.S. being P.S. Case No. 47 dt. 4th July, 1983 under Section 7(1)(a) of the Essential Commodities Act, 1955.

2. It is a well settled principle of law that investigation of an offence is the field, exclusively reserved for the Executive through the police department, the superintendence over which vests in the State Government The power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the Judiciary. (See in this connection the decision of Supreme Court reported in : 1980CriLJ98 ; State of Bihar v. J.A.C. Saldanna).

3. Mr. Roy Chowdhury appearing for the petitioner, however, strongly relied on the later decision of the Supreme Court in the case of State of West Bengal v. Swapan Kumar reported in : 1982CriLJ819 and contended that in the event of nondisclosure of an offence in the First Information Report, the Writ Court would be within its jurisdiction to quash the proceedings. In the said decision the Supreme Court observed that on a consideration of all the relevant materials the Court has to come to the conclusion as to whether an offence is disclosed or not and if on a consideration 6f the relevant materials, the Court is satisfied that an offence is disclosed, then Court would not interfere and would generally allow the investigation into the offences to be completed. If on the other hand, the Court, on the consideration of the relevant materials, is satisfied that no offence is disclosed, it will be the duty of the Court to interfere and stop the investigation to prevent uncalled for and unnecessary harassment to an individual

4. In this context reference may also be made to another decision of the Supreme Court reported in : 1977CriLJ1125 (State of Karnataka v.L. Muniswami) wherein the Supreme Court observed that in the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of High Court's inherent powers both in Civil and Criminal matters is designed to achieve a salutary public purpose which is for a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. Needless however to say that the observation of the Supreme Court pertain to the exercise of the inherent power of the High Court in its revisional jurisdiction.

5. In view of the aforesaid it is therefore necessary to consider the First Information Report for the purpose of ascertaining as to whether the First Information Report lodged by the Sub-Inspector of the Enforcement Directorate does disclose an offence or not The said First Information Report reads as follows :

I.S.I S.N. Sarkar of E.B. lodged complaint to the effect that to-day (4/7/83) getting on an information the undersigned along with others officers of E.B. had been to M/s. Shyam Oil Industries at 9, Jagmohan Mullick Lane, Calcutta-7 and found that one Mohanlal Agarwala S/o Deepchand Agarwala, person-in-charge of the firm was present there. Mohanlal Agarwala produced the stock Register for pulses of the firm and the pulses licence on demand. On scrutinising of the Licence found that Deepchand Agarwala S/o Late Ratiram Agarwala & Others are the partners of the firm. But none of the partners are found present On checking of the stock Register for pulses it was found that the firm has a stock of pulses at 157, Manicktolla Main Road, viz Masurgota 1581 bags weighing 1581 quintals, Lalai gota 1660 bags weight 1660 qtls. & Khesari gota, 493 bags weighing 493 qtls. As the firm kept total 3734 qtls. in their godown, they violated the provisions of West Bengal Pulses, Edible Oilseeds & Edible Oil (Dealers Licensing) Order, 1978 read with para 4(i) of the Pulses, Edible Oilseeds & Edible Oil (Storage Control) Order, 1977. So, I took cognizance at the spot and seized the Stock Register for pulses and pulses Licence being produced by Mohanlal Agarwal in presence of (1) Mr. Matasevak Tiwari & (2) Radhe Shyam Kedia both of 9, Jogmohan Mullick Lane, Calcutta-7 under a seizure list between 15-20 hrs. to 15-50 & accused No. 1 Mohanlal Agarwal son of Deepchand Agarwala. Thereafter we had been to the godown of the firm at 157, Manicktolla Main Road, Calcutta being led by Mohanlal Agarwala and on his identification I seized 1581 bags weighing 1581 qts. of Masur Gota, 1660 bags weight 1660 qts, of Kalai Gota and 493 bags weighing 493 qt : (Total 3734 qts.) from the above godown under a seizure list between 17-15 hrs. and 21-45 hrs. in presence of Mohanlal Agarwala, person-in-charge of the firm and local witnesses namely (1) Sk. Babul & (2) Sri Mritunjoy Patra Partner. Deepchand Agarwala and other partners of the firm are absconding. The investigation is taken up under order of O/C Section E.

Sd/- S.N. Sarkar.

S.I.E.B.

4/7/83.

5A. Mr. Roy Chowdhury contended that the petitioners were at all material times acting as commission agents and assuming that the facts stated in the First Information Report are correct the FIR ought to disclose whether the accused persons were acting as dealers or commission agents, since the Central Control Order of 1977 read with the State Control Order of 1978 recognize commission agents and dealers independently.

6. In order to appreciate the contentions it would be worthwhile to note at this stage diverse statutory provisions : Under Clause 2 of the Central Control Order of 1977 Dealer has been defined to mean a person engaging in the business of purchase, sale or storage for sale of any pulses, edible oilseeds or edible oils whether or not in conjunction with any other business and includes his representative or agent.

7. Commission agent has been defined to mean a commission agent as having in the customary course of business as such agent authority either to sell goods or to consign goods for the purposes of sale or to buy goods.

8. Wholesaler has been defined to mean a dealer in pulses or in edible oilseeds or in edible oils but sell such commodities to other dealers or to bulk consumers.

9. Clause 4 of the Central Control Order provides that no dealer shall after a period of 15 days from the coming into force of the said clause, either by himself or by any person on his behalf store or have in possession at any time, any pulses, edible oilseeds or edible oils in excess of the quantities specified below :.............................

Provided ..................

Provided further that where a dealer is also carrying on business as producer or commission agent, he shall be entitled to retain the stock limits specified in this Sub-clause for each such business, if such business and accounts thereof are kept separate and distinct from one another.................................

Provided also that nothing in this clause shall apply to a commission agent who does not retain any consignment of pulses or edible oilseeds received by him for a period exceeding fifteen days from the date of its receipt.

10. The West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealers Licensing) Order 1978 also defines commission agents and dealers but the same are not in any way, in conflict with the Central Control Order of 1977. Clause 3 of the said West Bengal Control Order, 1978 provides :

Licensing of dealers : (1) No person having a stock exceeding ten quintals of all pulses taken together or exceeding a stock of five quintals of all edible oils including hydrogenated vegetable oils or exceeding a stock of thirty quintals of edible oilseeds including groundnut in shell shall engage himself in any business as a dealer after the expiration of a period of fifteen days from coming into force of this paragraph except under and in accordance with the terms and conditions of licence granted in this behalf by the licensing authority.

(2) A separate licence shall be necessary for each place of business.

(3) For the purpose of this paragraph any person who stores edible oils in any quantity exceeding five quintals in the aggregate or pulses in any quantity exceeding ten quintals in the aggregate or edible oilseeds in any quantity exceeding thirty quintals in aggregate, at any time, shall unless the contrary is proved, be deemed to have stored the same for purposes of sale.

11. Clause 4 of the State Control Order provides that every licenced dealer shall furnish a fortnightly return in Form C, as on the 1st/15th of month to the licensing authority having jurisdiction within two days from the close of the fortnight, in respect of the stock of pulses, edible oilseeds and edible oils held by him.

12. Admittedly, the writ petitioner has obtained a license under the State Control Order as also filed due returns in Form C detailing therein all the necessary particulars required under the State Control Order of 1978. While an explanation was offered for obtaining of the licence by the writ petitioner in course of his submission by Mr. Roy Chowdhury which I would deal with immediately after, there is no denial of the fact that the petitioner has in fact submitted return in Form C. Mr. Roy Chowdhury relying on the letter dt. 14-5-81 being annexure 'E' to the writ petition submitted that the licence in terms of the State Control Order of 1978 was obtained at the instance of the respondent authorities and as such cannot be said to be a voluntary act on the part of the petitioner. In this context, Mr. Roy Chowdhury placed strong reliance on the decision reported in 1978 ELT (J) 127 : (1978 Tax LR NOC 124) (Delhi), wherein it has been held that action pursuant to an executive order cannot be said to be violative of any law even if there are contra-requirements.

13. Mr. A.P. Chatterjee the learned Standing Counsel appearing for the State Government, however, produced the records of the case and submitted on the basis thereof that wholesaler licence had been obtained by the petitioner as early as 25th July 1980 and the same has since been renewed from year to year and is valid up to 31-12-85. In terms of the provisions of the Central Control Order as well as the State Control Order there cannot be any manner of doubt that the wholesaler is also a dealer. As such the factum of the writ petitioner having the license since 1980 itself negates the submissions of Mr. Roy Chowdhury neither the decision reported in 1978 ELT (J) 127 : (1978 Tax LR NOC 124) (Delhi) is of any assistance to him. Filing of returns in Form C also goes against the contention of Mr. Roy Chowdhury.

14. Further in regard to the nature of the business of the petitioner some reliance was placed on the Municipal Trade Licence wherefrom it would be evident as submitted that the petitioner was carrying on business as commission agent I am, however, unable to accept the contention since the Trade Licence as produced before the Court is for the year 1983, i.e. after the conduct of search and seizure at the petitioner's place of business. No earlier Trade Licence has been produced before the Court. In any event, the Trade Licence is issued on the basis of declaration of the declarant and which can only be heard at the time of the Trial. The enquiry envisaged under the Municipal Act cannot said to be so sacrosanct as to lead to a conclusion in regard to the nature of the business carried on by the holder of the licence. No reliance can be had from the Licence for determining the issue as is raised in the present petition. The omission to produce the Trade Licence for earlier years cannot also be ignored in the facts of this case. In that view of the matter Trade Licence being Annexure 'A' to the writ petition is also not of any assistance to the petitioner. As a matter of fact there is total absence of any reliable documentary evidence on the basis of which the Writ Court can come to definite conclusion that in regard to the business of the petitioner being that of Commission Agency further and fuller disclosures are required.

15. Further, Mr. Roy Chowdhury contended that Clause 4 of the Central Control Order has no manner of application by reason of the last proviso thereof. I am however unable to accept the same, since the pre-condition of the applicability of the last proviso, in the view expressed above, has not been fulfilled.

16. Finally, the contention of the petitioner that in order to justify a prosecution there ought to be full disclosure in the FIR as to the exact nature of violation of the terms of the licence and in particular Clause 6 thereof, cannot in my view be accepted in the facts and circumstances of the instant case since all necessary particulars in regard to the violation of Clause 4 of the Central Control Order have been detailed therein.

17. Jurisdiction of the writ court in my view is very restrictive in nature in the matter of quashing of an investigation at the earliest possible opportunity. There ought not to be any extension of the law laid down by the Supreme Court. As a matter of fact extension of the law laid down by the Supreme Court would lead to encroachment of the jurisdiction of the criminal courts as envisaged under the Criminal Procedure Code. Writ court ought to be cautious and its jurisdiction to be exercised with utmost care in these matters. It is only in cases of a blatant failure on the part of the investigating agency to make out a prima facie case, intervention of the writ court may be sought for. Even in the cases, of doubtful nature, in my view, writ court ought not to interfere and allow an investigation to be throttled.

18. As long as the FIR discloses a cognizable offence even though cryptically, the court should not interfere in the investigation. Mere omission to mention, in the FIR as to the nature of business being carried on by the petitioner does not nullify the FIR in the facts of this case and the same would be matters of evidence. As such trial ought to be allowed to be proceeded with as is contended by the learned Standing Counsel. The points raised in this application can well be taken as defence at the later stage of the proceedings before the Criminal Court.

19. In that view of the matter this application fails. The Rule is discharged. All interim orders are vacated. It is however recorded that observations made herein will not have any effect at the time of the trial. Considering the facts and circumstances of the case there will however be no order as to costs.


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