N. C. Talukdar J. - (1.) Talukdar J. This Rule is at the instance of the four accused petitioners directed against an order dated the 14th September, 1974 passed by Sri G.B. Ghosh, Additional Chief Metropolitan Magistrate, Calcutta directing a sale of the seized mustard seeds by the State through the West Bengal Essential Commodities Supply Corporation Limited at a price to be fixed by the Food Commissioner in Case No. C/EB - 358 dated the 9th September, 1974 under Rule 114(1 la) of the Defence of India Rules, 1971 read with sections 7(1) and 8 of the Essential Commodites Act, 1955.
(2.) The facts leading on to the Rule can be put in a short compass. On the 9th September, 1974 at about 10 A.M., some members of the local Juba Congress and the Chhatra Parisad came to the mill premises an they apprehended that Essential Food - stuff were being stored there. On the same day at about 3. 30 P.M., S.I., S.C. Das of the Enforcement "Branch along with some other officers came to the mill on receipt of information. They entered the mill premises and on conducting search therein found a stock of 321.600 Kgs. of rice, 80 Kgs. of wheat and 37 Ration cards as well as 910.500 Kgs. of mustard seeds. The entire stock was seized by the Police under a seizure list. Following the seizure a first information report was lodged by the above - mentioned Sub - Inspector at the Durtola Police Station alleging, inter alia, that the accused petitioners illegally possessed the above - mentioned stock of rice, wheat and ration cards violating the provisions of the West Bengal Essential Foodstuff Anti Hoarding Order, 1966 and further alleging that by failing to display the actual stock of mustard seeds in their possession in the stock and rate board, the accused petitioners had also violated the provisions of the West Bengal Declaration of Stock and Price of Essential Commodities (second amendment) Order, 1972, thereby committing an offence punishable under Rule 114 (11a) of the Defence of India Rules, 1971 and also offences under sections 7 (1) and 8 of the Essential Commodities Act, 1955. The accused petitioners were arrested in connection with the aforesaid case on the 9th September, 1971 and were produced before the court of the learned Additional Metropolitan Magistrate, Calcutta, on the 10th when they prayed for bail but the same was refused. Ultimately they were released on bail on the 14th September, 1971. The investigating officer in the meantime had prayed on the 10th September, 1974 for permission to dispose of the seized rice and wheat to the Food Corporation of India and the mustard seeds which were also seized, through the West Bengal Essential Commodities Supply Corporation Limited. The consideration of the prayer was deferred till the next date in the presence of the Public Prosecutor, Calcutta. On the 14th September, 1974 as mentioned above, the accused petitioners were released on bail and by a further order passed on that date the learned Additional Chief Metropolitan Magistrate directed that the entire quantity of mustard seeds seized in the case would be sold by the State through the West Bengal Essential Commodities Supply Corporation Limited at a price to be fixed by the Food Commissioner. This order has been impugned and forms the subject matter of the present Rule.
(3.) Mr. Dilip Kumar Dutta. Advocate with Mr. Pranab Kumar Deb. Advocate, appearing in support of the Rule made a two - fold submission. He contended in the first instance that there has been no violation of paragraph 3 of the West Bengal Declaration of Stock and Price of Essential Commodities Order, 1972 attracting penalty under Rule 114 (11a) of the Defence of India Rules, 1971. He next contended that in the facts and circumstances of the case the subject matter of the offence being mustard seeds.no offence under sections 7 (1) and 8 of the Essential Commodities Act, 1955 has been committed. Mr. Sudhir Gopal Poddar, Advocate appearing on behalf of the State, submitted that mustard seeds are perishable commodity and as such should be disposed of without late or hindrance as otherwise it is the public who will be affected ultimately. Having heard the learned Advocates appearing on behalf of the respective parties and on a consideration of the relevant provisions of the Orders and the Act we ultimately hold that both the submissions made on behalf of the accused petitioners are sustainable in law and on merits. As to the first dimension of Mr. Dutta's contention, the prosecution, is under Rule 114 (11) (a) of the Defence of India Rules, 1971 for a purported violation of paragraph 3 of the West Bengal Declaration of Stock and Price of Essential Commodities (second amendment) Order, 1972, Section 3 lays down that - "Every dealer of essential commodities shall display prominently in the shops or show rooms a list indicating the opening stock of such commodities etc. ..." The expression "dealer" has been defined under section 2(a) of the above - mentioned Order as "any person carrying on the business of selling any essential foodstuff and includes a importer, wholesaler or retailer". Even on an expansive inteipretation of the said provisions the present case does not prima facie come within the bounds thereof inasmuch as the Annapurna Oil Mill of which the accused persons are the partners does not deal in mustard seeds but in oil. The sine - qua - non of the offence therefore is that the accused must be a dealer who has failed to display the list as enjoined under paragraph 3 of the West Bengal Declaration of Stock and Price of Essential Commodities (second amendment) Order, 1972 and in the absence thereof, Rule 114 (11) (a) of the Defence of India Rules, 1971 is not at all attracted. A reference may be made to an unreported decision in Criminal Revision No. 386 of 1974 (Gujarmal Gupta and anr. ... , accused petitioners v. The State of West Bengal...complainant, opposite party) decided on the 16th May, 1974. It has been held in the said decision that the definition of a dealer under section 2 (a) of the relevant Order is wide enough and can bring within its ambit the producer of oil although he may not be an importer, whole seller, retailer but in the facts of the said case as the mill in question carried on the business of manufacturing mustard oil, the accused persons were not found to be the dealers of mustard seeds. It was clearly observed that "A thousand and one materials may be necessary for the purpose of such manufacture including mustard seeds,diesel,lubricants and many other paraphernalia ancillary to the same. An oil mill does not deal in those articles for the purpose of main business it carries on, viz., pressing mustard seeds into oil and selling the same. Therefore, the mill and the persons carrying on this business are dealers of an essential commodity, that is, oil and not mustard seeds". Ultimately, the impugned order was set aside. We agree with the same and we hold that in the facts and circumstances of the present case, the accused petitioners are not dealers within the bounds of the relevant Order and as such the impugned order directing a sale on the basis thereof is not maintainable.;