W.P. 29023 (W) of 2014. Case: Nitya Gopal Roy and Ors. Vs The State of West Bengal and Ors.. High Court of Calcutta (India)
| Case Number | W.P. 29023 (W) of 2014 |
| Counsel | For Appellant: Debabrata Saha Roy and Pingal Bhattacharyya, Advs. and For Respondents: Sushovon Sengupta and Subir Pal, Advs. |
| Judges | Subrata Talukdar, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 100, 4; Constitution of India - Articles 14, 18 |
| Judgement Date | January 31, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Subrata Talukdar, J.
1. In this writ petition challenge is thrown to the termination of the Fair Price Shop (for short the F.P. shop) Licence of the writ petitioner by the Sub-Divisional Controller (F & S), Barrackpore. Challenge is also thrown to the enquiry, search and seizure conducted at the shop-cum-godown of the petitioners on 13th of August, 2010 by officers of the Food & Supplies Department on the ground that such enquiry, search and seizure has failed to follow due process.
2. Mr. Debabrata Saha Roy, Ld. Counsel appearing for the petitioners submits that at the instance of certain local vested interests purportedly backed by the Prodhan of the local gram panchayat, an enquiry, search and seizure was conducted at the petitioners' premises on 13th of August, 2010. Mr. Saha Roy points out that the said enquiry, search and seizure was not undertaken in the presence of independent witnesses and, no physical measurement of the ration articles was taken.
3. Ld. Counsel for the petitioners further points out that the stocks of ration articles kept in the adjoining shop room were not measured and, in spite of seizing the books of accounts, no seizure list was prepared and handed over by the inspecting officers.
4. The enquiry, search and seizure on 13th August, 2010 was followed by a show cause notice issued on 25th August, 2010 in which it was, inter alia, alleged that the petitioners violated the provisions of the West Bengal Public Distribution (Maintenance and Control) Order, 2003 (for short the 2003 Control Order). Simultaneously, the dealership of the petitioner was suspended and, in spite of the petitioners submitting an exhaustive reply to the show cause notice, the FP dealership was terminated on 24th November, 2010.
5. Against the order of termination dated 24th of November, 2010 (supra) the writ petitioners preferred a statutory appeal before the Appellate Authority. However, Mr. Saha Roy submits, that the Appellate Authority mechanically endorsed the findings of the first authority.
6. Mr. Saha Roy next points out that the final order of termination records the complaints of the ration card holders of the local gram panchayat against the petitioners. However, both at the enquiry and, at the show cause stage, no such copy of the complaint/complaints of the card holders was supplied to the petitioner. Second, the petitioners are permitted to store the rationing articles in adjoining rooms of the F.P. shop on the strength of a Memo dated 31st of December, 2010 issued by the Principal Secretary, Food & Supplies Department. Mr. Saha Roy therefore questions the drawing up of the enquiry proceeding on the basis of the purported complaints of the ration card holders as well as the continuance of such proceeding in utter violation of the principles of natural justice, since no copy of the documents relied upon by the Authority were furnished to the petitioners.
7. On the strength of several decisions of this Court, Mr. Saha Roy points out that the mandatory provisions as contained in the 2003 Control Order relating to seizure in the presence of independent witnesses was not followed by the respondents/Authority. It is submitted that carrying out a search and seizure strictly in conformity with the provisions of the 2003 Control Order has been clearly discussed by an Hon'ble Single Bench of this Court in the matter of Arun Agarwal vs. State of West Bengal & Ors. being WP 1299 of 2009. Delivering its judgment on 29th of April, 2010 the Hon'ble Single Bench, inter alia, held as follows:-
"23. However, so far as non-compliance of the provisions of Section 100 is concerned, this Court notices that under Para-25(2) of 2003 Order, it has been laid down that the provisions as contained in Section 100 of the Code of Criminal Procedure, 1973 relating to search and seizure shall, so far as may be, apply to search and seizure under the said paragraph. Section 100 of the Code of Criminal Procedure, 1973, inter alia, provides that under Section 100 11(4), independent and respectable inhabitants of the locality should be called in the place which is searched and if no such inhabitant is available or is willing to be a witness, then an order in writing shall be issued to them to witness and attend the search.
30. In the instant case, this Court notices that under the provisions of Para 25(2), it has been specifically laid down that the provisions contained in Section 100 Cr.P.C. relating to search and seizure shall, so far as may be, apply to searches and seizures under this paragraph. In the background of such a provision having been provided read with the judgments referred to above, this Court is of the view that in order to test as to whether Para 25(2) is mandatory or directory, an aspect, be considered and that is, the application and insertion of the word "shall" just before the words "so far as may be". Para 25(2) reads as follows:-"25(2). The provisions as contained in Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as...
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