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 Cat WN 917. 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, 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 super session 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 Fertilizer (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. 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 Enforcement Branch were designated as Inspector of Fertilizers. Therefore, not being the Inspector of Fertilizers 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.";