STATE OF WEST BENGAL Vs. BRIJMOHAN GUPTA
LAWS(CAL)-1983-2-12
HIGH COURT OF CALCUTTA
Decided on February 28,1983

STATE OF WEST BENGAL Appellant
VERSUS
BRIJMOHAN GUPTA Respondents

JUDGEMENT

Sabyasachi Mukharji, J. - (1.) This appeal raises various questions about an order of suspension of a dealer appointed under the West Bengal Rationing Order, 1964 and also challenges an enquiry into certain alleged complaints as to why the dealership of the respondent should not be cancelled. Before we deal with the questions raised in this appeal, which are many and various, it will be relevant to refer to certain facts which the learned Trial Judge has noted.
(2.) One Brij Mohan Gupta, who was the original petitioner before the learned Trial Judge, was appointed the authorised Rationing dealer under the West Bengal Rationing Order, 1964. He is the Proprietor of a Ration Shop No. 3437 at 166/4, Prince Anwar Shah Road, Calcutta. On the 19th Dec. 1981 the officers of the Food Department, Government of West Bengal seized certain records of the said shop, being registers, books of accounts and cash memos and removed the same from the shop. The petitioner thereafter and on the same day filed a complaint before the Officer-in-charge, Lake Police Station as also the Director of Rationing, West Bengal. It was alleged by the appellant, on the other hand, that as the officers of the appellant were coming out of the shop along with the documents, they were attacked by some people and the documents were seized from them at the point of certain weapons. Thereafter the petitioner moved an application on 20th Dec. 1981 under Article 226 of the Constitution claiming, inter alia, issue of an appropriate writ directing the respondents to act in accordance with law, not to suspend the authorised ration shop of the petitioner or delink the ration cards herefrom or tag such ration cards to any other ration shop, release the seized documents of the petitioner and also for cancellation of the suspension order. Thereafter, the learned Judge at the invitation of the parties appointed the Special Officer. These are the undisputed facts upon which the learned Trial Judge had proceeded and we shall have to proceed on the basis of these facts. It would, however, be relevant to set out certain annexures to the said petition. On 23rd Dec. 1981 there was a communication to the Deputy Controller of Rationing, Government of West Bengal by the Rationing Officer, Ballygunge, where it has been stated as follows:-- "This is to inform that the A. R. 3437 kept his shop closed in the evening session of 22-12-81 causing serious dislocation in supply of rations to the rationers concerned. The A. R. sold commodities to the rationees from the A. R. Shop in the morning session of 20-12-81 without maintaining statutory register or such as D. S. R. non-drawal register etc. It may be noted that all the valid R. Cs have been delinked from the said A. R. shop to the neighbouring shops as per order of Director of Rationing and in the interest of public concerned." Thereafter the charge-sheet was issued to the said Brij Mohan Gupta which stated as follows : "Proceeding No. 116 Whereas it has been reported, to me that a squad of Inspecting Staff of Headquarter headed by Shri R. Saha, Chief Inspector (IB) paid a visit to your A. R. shop No. 3437 in the afternoon on 19-12-81 and on physical verification of all the stock huge discrepancies in stocks at your shop were detected, a copy of the Weighment Chart duly signed by you was handed over to you but on their way back from your shop few persons led by you armed with lethal weapons snatched away from the said Headquarter Inspecting staff all the papers and documents related to your shop at the point of dagger for which a FIR was lodged at Lake Police Station vide Case No. 558 dt. 19-12-81, and Whereas it has also been reported to me that on verification of Stock Registers of your shop with reference to the opening balance on 19-12-81 and the actual stocks found after physical verification of stocks on 19-12-81 following discrepancies were detected : 1. N. B. S. F(B) Rice 51 Qtl 48 Kgs. 600 gms excess shortage 2. Wheat 10 Qtl 81 Kgs. 000 gms excess shortage 3. Sugar 2 Qtl 56 Kgs. 900 gms excess shortage 4. R. S. Oil 7 Qtl 40 Kgs. 000 gms excess shortage 5. R. B. D. Palm oil 20 Qtl 15 Kgs. 000 gms excess shortage 6. M. Dal 18 Qtl 46 Kgs. 000 gms excess shortage Now, therefore, you are hereby asked to show cause, if any to Sri S. K. Ghose, W. L. C. S. Special Officer, Initial Area-II, who is being appointed Enquiring Officer in this case within 7 (seven) days from the date and of receipt hereof, why action as per law shall not be taken against you and to state clearly if you want to be heard in person or through a duly authorised agent and to note as well that in the event of your failure to show cause within the stipulated period decision on the matter will be taken ex parte. Sd: S. K. Chatterjee 22-12-81 Director of Rationing, West Bengal."
(3.) Before we refer to the West Bengal Rationing Order, 1964 we may refer to certain provisions of the Essential Commodities Act under which the West Bengal Rationing Order, 1964 had been issued by the State Government. Section 3 of the Essential Commodities Act empowers the Central Government to control production, supply, distribution, etc. of the essential commodities. It provided that if the Central Government was of the opinion that it was necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing any essential commodity for the Defence of India or the efficient conduct of military operations, the Central Government might, by order, provide for regulating or prohibiting the production, supply and distribution thereof and, trade and commerce therein. Sub-section (2) empowers an order to be made, for various purposes, without prejudice to the generality of the powers conferred by Sub-section. (1). Sub-section. (2) (j) provides as follows and empowers an order to be made : "(j) for any incidental and supplementary matters, including in particular, the entry, search or examination of premises, aircraft, vessels, or other conveyances and, animals, and the seizure by a person authorised to make such entry, search or examination," The above provision, however, is as it is. We shall refer to various changes that this Sub-section has suffered from time to time. The Sub-section. (2) (j) of Section 3 has suffered amendments as follows : "Pre-1967 (j) For any incidental and supplementary matters including in particular the entering and search of premises, vehicles, vessels and aircraft (and) the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be committed. After Amendment Act No. 36 of 1967 : (j) for any incidental and supplementary matters including in particular the entering and search of premises, vehicles, vessels and aircraft and the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be committed..... and of any books of accounts and documents which in his opinion would be useful for, or relevant to, any proceedings under this Act and the return of such books of accounts and documents to the person from whom they were seized after copies thereof or extract therefrom as certified by that person in the manner specified in the order have been taken. After Amendment Act No. 66 of 1971 : (j) for any incidental and supplementary matters including in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals and the seizure by a person authorised to make such entry, search or examination. (i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be, committed and any packages, coverings or receptacles in which such articles are found. (ii) of any aircraft, vessels, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicles or other conveyance or animal is liable to be forfeited under the provisions of this Act; (iii) of any books of accounts and documents which in the opinion of such person would be useful; for or relevant to, any proceedings under this Ad and the return of such books of accounts and documents to the person from whom they were seized after copies thereof or extracts therefrom, as certified by that person in the manner specified in the order, have been taken." The present section is, as we have set out hereinbefore. Section 5 of the Essential Commodities Act stipulates the Central Government may, by notified order, direct that the power to make order or issue notification under Section 3, should, in relation to such matters and subject to such conditions, if any, as might be specified in the direction, be exercisable also by such officer or authority subordinate to the Central Government, or such State Govt. or such officer or authority as might be specified in the direction. Pursuant to the authority given under the Essential Commodities Act, the West Bengal Rationing Order, 1964 was issued. Paragraph 2 of the West Bengal Rationing Order, 1964 provides the definitions. Para 3 gives authority to wholesale dealers, retail dealers and persons owning, managing or having control of establishments to supply rationed articles in rationed areas. It empowers the State Government, with a view to controlling the distribution of any rationed articles, in respect of any rationed areas or any part thereof, by an order, to appoint any department of or authority under the Central or State Government or any person being a wholesale dealer, a retail dealer or owning or managing or having control of an establishment to be, as the case might require, a wholesale dealer, retail dealer or establishment proprietor in respect of such rationed article for the purposes of the said order and it further stipulates that thereupon such department, authority, wholesale dealer, retail dealer or establishment proprietor should, be entitled to supply in accordance with the provisions of the order and any regulations made thereunder such rationed articles within such rationed area or part thereof. Paragraph 3 (5) of the said Rationing Order upon which good deal of arguments have been advanced and upon which one of the points has to be decided states as follows:-- "3. (5) Whenever in the opinion of the State Government it is necessary or expedient so to do in the interests of the general public, the State Government may amend, vary, suspend or revoke any appointment made under this paragraph after making an enquiry in which an opportunity shall be given to the holder of the appointment of being heard either in person or by an agent and for reasons to be recorded in writing and in every such case the holder of the appointment shall be bound to surrender, on demand, to the State Government, the order of appointment for endorsement or cancellation, as the case may be. Provided that, pending an enquiry into a charge against the holder of an appointment the State Government may suspend his appointment, if in the opinion of the State Government immediate suspension is necessary in the interests of the general public." Paragraph 3-A provides that notwithstanding anything contained in para 3 a wholesale dealer or retail dealer appointed under sub-para. (1) of para. 3, not being a department of or authority under the Central or State Government, should have executed and registered an agreement in the form set out in the schedule to that order. It further stipulates that they should also furnish security of such value in such manner and within such time as the State Government might direct. Paragraph 4 of the said Rationing Order stipulates that no person other than an appointed establishment proprietor, an appointed wholesaler or an appointed retailer, should, on and afier the rationing date, supply or offer or attempt to supply, or knowingly permit to be supplied by any agent, employee or servant of such person any rationed article to any person in any rationed area in which such article is rationed. The other provisions dea! with details of distribution of the rationed articles and it is not necessary for our present purpose to refer to them. Paragraph 16 of the said Rationing Order empowers the Stale Government by notification in the official gazette to make regulations for the purpose of giving effect to the provisions of the order. Pursuant to that certain regulations have been framed to which we shall refer presently. Paragraph 21 is also important and some arguments have been made on this paragraph. This paragraph empowers the State Government to inspect and enter the premises and to require any person to render any account etc. The said paragraph reads as follows : "21. (1) Any person authorised by the State Government in this behalf may : (a) enter any premises used or believed, to be used for the sale, distribution or storage for sale or distribution of any rationed article, non-(sic) article of the premises of any establishment and inspect any such premises and any rationed article or non-rationed article therein or thereon; (b) require any person to make any statement or furnish any information or to produce any document or article in his possession or under his control relating to the purchases, sale, distribution or storage of any rationed article or non-rationed article and every person so required shall comply with such requisition; (c) require any person to render any account or to produce books, accounts or other documents relating to, or believed to be relating to, the purchase, sale, distribution or storage of any rationed article or non-rationed article and every person so required shall comply with such requisition; (d) take or cause to be extracts from or copies of any document relating to the purchase, sale, distribution or storage of any rationed article or non-rationed article which is produced under Clause (b) or Clause (c) or otherwise found in any such premises; (e) fest or cause to be tested the correctness of any weight or measure used or believed to be used in any transaction relating to the sale or distribution of any rationed articles or non-rationed articles, (f) take or cause to be taken the weight of all or any of the rationed articles or non-rationed articles found in any such premises. (g) search and seizure of any rationed article or non-rationed, article or any ration document or any other document relating to the purchase, sale, distribution or storage of any rationed article in respect of which he has reason to suspect that a contravention of this order or any regulations made thereunder or any direction issued under any such regulation, has been, is being or is about to be committed. Provided that in exercising the powers under this paragraph the person so authorised, shall have due regard to the social and religious custom of the persons occupying the premises. 2. The powers exercisable under this paragraph shall not be exercised except for the purpose of securing compliance with the provisions of this order or of any regulations made thereunder or any direction issued under such requisition." Paragraph 22 provides for delegation of powers by the State Government and sub-para (2) of para 22 stipulates that the Stale Government may, of its own motion or on the application of an aggrieved party, review or revise any order passed by itself or by any officer or other person to whom powers has been delegated under sub-para. (1). The Schedule Io the Rationing Order provides the form in which the agreement is to be executed. It emphasises that a new dealer if appointed is also to function in a particular manner. The form of the agreement, which is provided in the Schedule, indicates the control that the Government exercises over the dealers. Clause 2 of the agreement provides that the dealer shall obtain such rationed articles as are allotted to him against indents passed by the appropriate authority, in accordance with the provisions of the said order and the Regulations made thereunder, and shall distribute the same in the manner provided for in the said order and the regulations and obtained such other commodities as are allotted to him against indents and distribute the same in the manner specifically laid down by the Director in respect of such commodities and shall maintain proper and correct accounts thereof. Clause 3 stipulates that the dealer shall deposit the prices of all rationed articles and other commodities allotted to him against indents referred to in Clause 2 within the period of validity of such indents at such rates as may be specified by the State Government Clause 4 of the Schedule provides as follows: "4. In the event of the ex-godown rates of any particular stock being increased subsequent to the payment for that stock at the previous rate by the dealer and before the distribution of the same to the consumers, the dealer shall make a further deposit of money in such manner, as may be prescribed by the Director in this behalf by general or special order in order to cover the amount of such increase in the ex-godown rate of any particular stock. Similarly to the event of a decrease in the ex-godown rate of any particular stock subsequent to the payment therefor by the dealer and before distribution of the same to the consumers, the dealer shall be entitled to the refund of his deposit to the extent of the difference due to such decrease." Clause 5 debars the dealer from keeping in his shop or godown any commodity other than those allotted to him by the appropriate authority. Clause 6 enjoins that the dealer shall distribute rationed articles and other commodities, as may be allotted to him, during such hours, as may be specified by the Director from time to time. Clause 7 enjoins that the dealer shall take adequate measures for the safe storage of rationed articles and other commodities as are allotted to him at the shop premises and shall not, under any circumstances, remove to any other place or address or store in any other place or address any stocks of the aforesaid articles or commodities without the permission in writing from the Director of Rationing Officer or any other officer authorised by the Director in this behalf. Clause 8 enjoins that the dealer shall notify any change of address of his residence to the Deputy Controller of Rationing or the Rationing Officer, within seven days of such change. Clause 9 however enjoins that the dealer shall personally supervise the management of the shop unless he is allowed by the Director or the Deputy Controller of Rationing or the Rationing Officer to manage the affairs of the shop through an agent duly appointed by him under a registered Power of Attorney.;


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