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Santa Kumar Das and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCr. Rev. No. 1283 of 1984
Judge
Reported in1990CriLJ1559
ActsFertiliser (Control) Order, 1957; ;Essential Commodities Act, 1955; ;Calcutta Police Act, 1866 - Section 9; ;Calcutta Suburban Police Act, 1866 - Section 3; ;Central Government's Hoarding and Profiteering Prevention Ordinance, 1943
AppellantSanta Kumar Das and anr.
RespondentThe State
Appellant AdvocateDipak Kumar Sengupta and ;Amitabha Ganguly, Advs.
Respondent AdvocateS.R. Majumdar, Adv.
DispositionPetition allowed
Cases ReferredBimal Ranjan Roy v. State of West Bengal
Excerpt:
- .....contention was raised. the contention which has been raised in that case is:'as sub-inspector of police attached to the district enforcement branch, who investigated the case was not an inspector within the meaning of paragraph 19 of the fertiliser (control) order, 1957, he had no authority to inspect the fertilizer shop of the petitioner or seize the fertiliser which was stocked there and thus was also not competent to investigate the case and submit charge-sheet and as the entire proceeding, taken in investigating the alleged offence, resulting in submission of charge-sheet, was illegal and void ab initio, the sub-inspector having no authority to function as inspector within the meaning of paragraph 19 of the fertilizer (control) order, 1957, the charge-sheet which was filed before.....
Judgment:

Ajit Kumar Sengupta, J.

1. This revisional application is directed against the order dt. May 17, 1984 passed by the learned Judge, Special Court, rejecting the contention of the accused that the proceeding initiated under the Essential Commodities Act for violation of the provisions of Para 21 of the Fertiliser (Control) Order, 1957 is a nullity. The only contention which has been urged in support of this rule is that since the case was initiated by a Sub-Inspector attached to the District Enforcement Office, the proceedings are void. The contention is that only Sub-Inspector or officers above the rank of Sub-Inspector attached to the Enforcement Branch could initiate proceedings for the purpose of the Fertiliser (Control) Order, 1957.

2. In support of this contention, the learned counsel for the petitioners has relied on the Division Bench decision in Kamala Ranjan Dey v. The State reported in (1982) 86 Cal WN 917 : (1983 Cri LJ NOC 90). In that case the same contention was raised. The contention which has been raised in that case is:

'As Sub-Inspector of Police attached to the District Enforcement Branch, who investigated the case was not an Inspector within the meaning of paragraph 19 of the Fertiliser (Control) Order, 1957, he had no authority to inspect the fertilizer shop of the petitioner or seize the fertiliser which was stocked there and thus was also not competent to investigate the case and submit charge-sheet and as the entire proceeding, taken in investigating the alleged offence, resulting in submission of charge-sheet, was illegal and void ab initio, the Sub-Inspector having no authority to function as Inspector within the meaning of paragraph 19 of the Fertilizer (Control) Order, 1957, the charge-sheet which was filed before the learned Magistrate as a result of such investigation, was illegal and the learned Magistrate could not validly take cognizance of the alleged offence on the basis thereof.'

The Division Bench held as follows :--

'After hearing the learned Advocate for the petitioner and considering the decision in Bimal Ranjan Roy v. State of West Bengal reported in (1978) 2 Cal LJ 300 : (1980 Cri LJ NOC 24), in which a learned single Judge of this Court has held that the inspection and seizure made without authority by an Inspector of the District Enforcement Branch were illegal and consequently the investigation carried on thereafter and cognizance of the case taken became illegal and void and inasmuch as under a notification being No. 2792-Fert. dt. 17th Sept., 1974, published in the Calcutta Gazette (Extraordinary) dt. Sept. 17, 1974 issued by the Department of Agriculture and Community Development. In exercise of power conferred by paragraph 19 of the Fertilizer (Control) Order, 1957 and Item 21 thereof the Sub-Inspector of Police and all officers above the rank of Inspector attached to Enforcement Branch were appointed under the said paragraph of the Fertiliser (Control) Order, 1957 throughout the State of West Bengal in supersession of previous notifications on the subject, we hold that the point raised on behalf of the petitioner is well founded and should prevail. It appears that the learned Magistrate did not take into account the aforesaid Notification of 1974 while he overruled a similar objection raised before him on behalf of the accused and it also appears that he did not apply his mind to the earlier Notification No. 501 dt. 12th February, 1969 in which also only officers above the rank of Sub-Inspector attached to the Enforcement Branch were appointed Inspectors of Fertilizer for the purpose of Fertiliser (Control) Order, 1957.'

It would appear that the Division Bench has, as a matter of fact, approved the reasoning and conclusion of the learned single Judge in Bimal Ranjan Roy v. State of West Bengal reported in (1978) 2 Cal LJ 300 : (1980 Cri LJ NOC 24). There also the following contention was raised:

'The learned Advocate appearing on behalf of the petitioners submits that the Inspector of Fertilizer has been appointed by Notification No. 2702-Fert. dt. the 17th Sept., 1974, issued in the Department of Agricultural and Community Development, Government of West Bengal, and published in the Calcutta Gazette, Part-I, Sep. 17, 1974. A perusal of the above notification shows that under Entry No. 21 a Sub-Inspector of Police and officers above the rank of Inspector attached to the Enforcement Branch were designated as Inspector of Fertilizer within their respective areas of work. The learned Advocate contends that the Inspector, D.E.B., who carried the inspection of the fertilizer shop in question was only an Inspector attached to D.E.B., that is to say, District Enforcement Branch, but under Entry No. 21 all the officers above the rank of the Inspector attached to the Enforecement Branch were designated as Inspector of Fertilizers. Therefore, not being the Inspector of Fertilisers it is contended that the Sub-Inspector had no authority to inspect the said shop. So the inspection and seizure was carried and made by a person unauthorised under the law. It is contended that the entire inspection seizure was illegal and void ab initio and the subsequent proceedings including cognizance taken by the learned Magistrate became void and illegal.'

3. Paragraph 19 of the Fertilizer (Control) Order, 1957 provides that 'the State Government and/or the Central Government may by notification in the Official Gazette appoint such number of persons as it/they think necessary to be Inspectors of Fertilizers for the purpose of the Order and may in any such notification define the local area within which each such Inspector shall exercise his jurisdiction.'

4. The relevant notification which was considered by the learned single Judge as well as the Division Bench in the aforesaid case is the Notification dt. 17th Sept., 1974. That Notification provides that the Sub-Inspector of Police and all officers above the rank of Inspector attached to the Enforcement Branch would be entitled to act as the Inspector under the Fertilizer (Control) Order, 1957. The said Notification was amended on 17th Sept., 1977. The amendment is to the effect that the Sub-Inspector of Police and all Officers above the rank of Sub-, Inspector attached to the Enforcement Branch would be the Inspector for the purpose of the said order.

5. What Mr. Sengupta wants to contend is that the Sub-Inspector of Police attached to the Enforcement Branch has no jurisdiction to act as the Inspector under the Fertilizer (Control) Order, 1957. According to him, only the officers of the rank of Sub-Inspector and above attached to the Enforcement Branch can act as Inspector under the said order, not a Sub-Inspector of Police attached to the District Enforcement Branch. He submits that this construction has been accepted by the Division Bench which we should follow.

6. This contention has substance.

7. Before the Single Bench, Inspector attached to District Enforcement Branch conducted the search under the said Order. Since he was not attached to the Enforcement Branch, he had no jurisdiction to initiate the proceeding as he was not an Inspector of Fertilizers within the meaning of the said Order. Before the Division Bench, a Sub-Inspector attached to District Enforcement Branch and not to the Enforcement Branch conducted the search. Accordingly, the proceedings initiated by him were held to be bad. In the case before us also Sub-Inspector attached to District Enforcement Branch conducted the search and seizure and initiated the impugned proceedings.

8. A Sub-Inspector of Police attached to the Enforcement Branch was competent to initiate proceedings under the Fertiliser (Control) Order, 1957 at the material time. By the Notification issued by the Government of West Bengal on 17th Sept., 1974 it has been provided as follows:

'The Governor is pleaded hereby to appoint the persons specified in column 1 of the table below as Inspector of Fertilizers for the purpose of the said Fertilizer (Control) Order, 1957 and to define the areas specified in the corresponding entries in Column 2 of the said table as the areas within which such Inspector shall exercise their respective jurisdiction:--

Person Area for which appointmentis made.21. The Sub-Inspector of Police and all Within their respectiveofficers above the rank of Sub- area of work. Inspector attached to EnforcementBranch.The aforesaid Notification was amended by corrigendum issued on 14th Oct., 1977 to the following effect:'In serial No. (21) of the table annexed to this Department Notification No. 2702-Fert. dt. 17th Sept., 1974 for the Sub-Inspector of Police and all Officers above the rank of Inspector attached to Enforcement Branch read The Sub-Inspectors of Police and all officers above the rank of Sub-Inspector attached to Enforcement Branch.'

9. On 17th Feb., 1983, further notification was made by the Government amending the earlier notification dt. 17th Sept., 1974 including the District Enforcement Branch. It provides that the table annexed to the notification dt. 17th Sept., 1974 as amended under the heading 'person' in Column 1 for the entries against serial No. 21 the following entries shall be substituted: 'All Officers of and above the rank of Sub-Inspector of Police attached to the Enforcement Branch including District Enforcement Branch.'

10. On 1st Feb., 1984 a fresh notification has been issued which also provides that 'Sub-Inspectors of Police and all Officers of and above the rank of Sub-Inspector of Police attached to the Enforcement Branch including D.E.B. and District Enforcement Branch' are appointed to act as Inspectors of Fertilisers under Fertilizer (Control) Order, 1957 within their respective areas of work.

11. It will be evident from the aforesaid Notifications issued on 17th Feb., 1983 and 1st Feb., 1984 that the Sub-Inspectors of Police and all Officers above the rank of Sub-Inspector who are also attached to District Enforcement Branch have been appointed to act as Inspectors of Fertilisers under the Fertilizer (Control) Order, 1957. A Sub-Inspector of Police if attached to the Enforcement Branch could have only acted as Inspector under the said order until the amendment was affected on 17th Feb., 1983 when all officers of and above the rank of Sub-Inspector attached also to District Enforcement Branch have been empowered to act as Inspector of Fertilizers under the said Control Order.

12. view, attachment to the District Enforcement Branch is the decisive factor. Any Sub-Inspector of Police or any officer above the rank of Sub-Inspector who at the material time was (not?) attached to the District Enforcement Branch, could not act as the Inspector of Fertilizers.

13. Enforcement Branch, West Bengal, is a wing of West Bengal Police. In the post-war years, sharp rise in price of essential commodities, malpractices of the unscrupulous traders and profiteers compelled the then Bengal Government to consider the creation of an agency for the enforcement of the Provincial Government's Food Plan for 1944 and also the Central Government's Hoarding and Profiteering Prevention Ordinance, 1943. By Memo No. 770 P1 dt. Calcutta, the 11th March, 1944 issued by the Home Department it was directed that the agency for collecting information and detecting offences against all laws and orders relating to food and other controlled commodities and also for investigating charges of corruption of dishonesty in supplies organisation should be the responsibility of the Police, i.e. the Inspector General of Police outside Calcutta and the Commissioner of Police in Calcutta.

14. Officers of both Enforcement Branch, West Bengal, and District Enforcement Branch are under the administrative control of Director General and Inspector General of Police, West Bengal.

15. Enforcement Branch, Calcutta is a separate wing and under the exclusive and direct control of the Commissioner of Police, Calcutta (vide Section 9 of the Calcutta Police Act and Section 3 of the Calcutta Suburban Police Act, 1866). This Bench operates within the areas of the Town of Calcutta and its suburbs where the Calcutta Police Act, 1866 and the Calcutta Suburban Police Act, 1866 are in force.

16. There cannot be any dispute that under the organisational set up, Enforcement Branch, Calcutta and District Enforcement Branch are different establishments. One who is attached to Enforcement Branch, Calcutta, cannot at the same time be attached to the District Enforcement Branch. In the case before us the Sub-Inspector of Police attached to the District Enforcement Branch conducted the search, initiated the proceeding and submitted the charge-sheet against the petitioner on 17th Oct., 1982 for violation of the provisions of Para 21 of the Fertilizer (Control) Order, 1957, when he was not authorised to act as the Inspector of Fertilizers and accordingly the proceeding must be held to be without jurisdiction.

The Rule is accordingly made absolute. The proceedings are quashed.

J.N. Hore, J.

17. I agree.


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