Benimadhab Chatterjee vs State Of West Bengal & Ors
2021 Latest Caselaw 5224 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha

                                 WPA 13536 of 2021

                               Benimadhab Chatterjee

                                          Vs.

                              State of West Bengal & Ors.


For the writ petitioner          :-    Mr.   Debabrata Saha Roy, Adv.
                                       Mr.   Pingal Bhattacharyya, Adv.
                                       Mr.   Subhankar Das, Adv.
                                       Mr.   Neil Basu, Adv.

For the State                    :-    Mr. Susovan Sengupta, Adv.
                                       Ms. Supriya Dubey, Adv.

Hearing concluded on             :-    10-09-2021

Judgment on                      :-    29-09-2021



Amrita Sinha, J.

The petitioner is a licensed Fair Price Shop owner. He is aggrieved by the

order dated 16th July, 2021 passed by the Director of Rationing, West Bengal

whereby his license has been placed under suspension till disposal of the pending

criminal case.

The brief facts of the case are as follows:

Rice and wheat grains under the Public Distribution Scheme were seized by

the police authority when those were allegedly smuggled from the Fair Price Shop

of the petitioner to a private shop on 25th April, 2020. FIR was lodged by the Food

and Supplies Department before the Durgapur police station under the provisions

of the Indian Penal Code and the Essential Commodities Act, 1955. The petitioner

was arrested on the same day and his license was put under suspension. The

ration cards of his Fair Price Shop were tagged with the nearest Fair Price Shop.

The petitioner was granted bail by the District Court on 11th May, 2020.

After being enlarged on bail, the petitioner applied before the Licensing Authority

i.e; the Rationing Officer praying for a direction to resume his business. By an

order dated 24th June, 2020 the Rationing Officer terminated the license of the

petitioner. Being aggrieved by the order of the Rationing Officer he preferred an

appeal before the Deputy Director of Rationing. The said appeal was disposed of by

an order dated 4th August, 2020 upholding the order passed by the Rationing

Officer.

Being aggrieved by the said order the petitioner preferred a second appeal

before the Director of Rationing. The Director, by an order dated 16th July, 2021,

was of the opinion, that the order of termination passed by the Licensing Authority

on 24th June, 2020 warrants modification and instead of termination, the license

of the appellant was placed under suspension till disposal of the pending criminal

case, so that an honourable acquittal may enable the petitioner to seek for

revocation of suspension and recalculation of shortfall.

The Director directed the Licensing Authority to maintain a suspense

account with the stock of rice and wheat stored in the separate room adjacent to

the Fair Price Shop and arrange for sending samples of rice and wheat from the

stock to the Directorate to find out whether the food grains are fit for distribution.

If the stock is found fit for distribution, the Licensing Authority shall arrange for

distribution of the same through the Fair Price Shops and the damage stock, if

any, to be disposed of as per the Government norms. The Licensing Authority was

directed to impose fine upon the petitioner based on the recalculated shortfall and

to direct the petitioner to replenish the amount of damage stock, if any, at his own

cost. On deposit of the fine and replenishment of damage stock, if any, the

Licensing Authority shall revoke the suspension of the license of the petitioner and

restore the dealership business as it existed prior to 25th April, 2020.

The petitioner is aggrieved by the same.

The petitioner relies upon paragraph 24 of the West Bengal Public

Distribution System (Maintenance and Control) Order, 2013, hereinafter referred

to as the 'Control Order'. It has been submitted that the order of suspension can

be passed only during the pendency of the proceeding. As the appeal preferred by

the petitioner has been disposed of finally by the appellate authority, accordingly,

there is no scope to continue with the order of suspension. Control Order permits

the authority to impose penalty by terminating the license or reduction in the

volume of business or imposition of fine according to gravity of the offence.

Petitioner submits that the criminal proceeding which is pending before the

District Court may take considerable time to be disposed and the petitioner ought

not to remain under suspension till conclusion of the criminal proceeding. The

petitioner submits that if any shortfall is assessed, he may pay the fine as directed.

The petitioner relies upon the judgment delivered by the Hon'ble Supreme

Court in the matter of Brajendrasingh -vs- State of Madhya Pradesh; AIR

2012 SC 1552 paragraph 16 where the Hon'ble Supreme Court held that the

basic cannon of criminal jurisprudence is that an accused is innocent till proven

guilty and the accused is entitled to a just and fair trial. According to the

petitioner, as the criminal proceeding is still pending, he ought not to be punished

by way of suspension of license, as that is his only means of livelihood.

The petitioner further relies upon the judgment of this Court in the matter of

Md. Yeasin & Ors. -vs- State of West Bengal & Ors.; 2006 (3) CHN 655

paragraphs 40 and 41 wherein the Court held that suspension of the dealer causes

great inconvenience and hardship as the dealer is thrown out of his business

without any subsistence during the suspension period.

The petitioner also relies upon the unreported order dated 11th September,

2013 passed by this Court in WP 26255 (W) of 2013 (Basana Das -vs- State of

West Bengal & Ors.) paragraph 17 wherein the Court was of the opinion that the

Control Order does not authorise termination of a license on the ground of the

licensee standing trial in a criminal court. A dealer cannot be punished only

because investigation has resulted in a charge sheet. Punishment would follow if

the evidence produced during the trial and consideration thereof by the Court

leads to his conviction and sentence.

The petitioner prays for setting aside the impugned order of suspension and

restoration of his license.

The learned advocate representing the State respondents submits that the

license of the petitioner stood suspended during pendency of the criminal trial so

that he does not indulge in any such similar activities in future. It has been

submitted that the petitioner has been caught red handed and the food grains

meant for public distribution were seized from a separate room and those were

sought to be used for private gain.

It has been submitted that the Hon'ble Division Bench of this Court in

Sukanta Samanta & Ors. -vs- State of West Bengal & Ors.; 2013 SCC Online

Cal 7326 held that the MR dealer ought not be entrusted with the responsibilities

of handling rationed articles as MR dealer during pendency of the criminal

proceedings against him relating to misappropriation of rationed articles. It has

been submitted that as soon as the petitioner will be acquitted from the criminal

case his suspension would be revoked.

Prayer has been made for dismissal of the writ petition.

I have heard and considered the submissions made on behalf of both the

parties.

There is no dispute with regard to the fact that food grains meant for public

distribution were seized from a private place of the petitioner not being his shop or

godown. A criminal complaint was lodged against him pursuant to which he was

arrested and later enlarged on bail. The criminal proceeding is pending. Charge-

sheet has been filed against him. Charges against the petitioner are under the

provisions of the Indian Penal Code, 1860 as well as the Essential Commodities

Act, 1955. The Licensing Authority terminated the license and the first appellate

authority upheld the order of termination. The Director of Rationing modified the

said order. Termination was revoked and the license was put under suspension

once again till disposal of the criminal proceeding.

The Director of Rationing ought to have appreciated that success in a

criminal trail depends upon a variety of factors. If the prosecution fails to come up

with proper evidence, the trial may fail. Failure of trial does not necessarily mean

that the person concerned is innocent. Moreover, that is a matter to be decided by

the competent Court. Here, admittedly, the petitioner being the owner of the ration

shop removed the ration articles from his shop cum godown without prior written

permission of the Licensing Authority. Shortfall in stock was detected. The same is

enough for taking a decision in respect of the proceeding initiated against him by

the department. For this limited purpose there is no reason to wait for conclusion

of the criminal trial.

Had the police not initiated the criminal case against the petitioner, then

also the department could have taken an independent decision under the Control

Order with regard to the illegalities committed by the petitioner.

Conclusion of a criminal trial is a time taking affair and till a decision is

taken by the Court, the petitioner cannot be labelled guilty in respect of the

charges mentioned in the FIR. The departmental proceeding is distinctly different

from a criminal trial. It revolves around preponderance of probabilities. Strict rules

of evidence are not required to be followed. Standard of proof is different. If there is

some evidence of illegality, the department is free to take an appropriate decision,

on case to case basis, without waiting for the outcome of the criminal case. The

criminal and departmental proceeding being independent of each other, one is not

required to wait for the conclusion of the other. Two proceedings cover two

divergent fields. An accused is deemed innocent till proven guilty, is settled

proposition of law. It is for the competent court to pass necessary order.

Fair Price Shop owner plays a very vital role in the Public Distribution

System and accordingly, it is not desirable that a person who fails to act in strict

compliance of the Control Order governing him be permitted to handle articles

meant for public distribution. Keeping in mind the ultimate beneficiaries of the

Public Distribution System it may not be proper to permit such a person to deal

with public distribution articles. Honesty and integrity are essential qualities

mandatorily required to provide service to the public. Slightest cloud in

trustworthiness is more than enough to remove the element from the cycle of

public distribution.

The charges against the petitioner relates to theft, breach of trust and

dishonesty. The petitioner being a licensed Fair Price Shop owner is bound by the

provisions of the Essential Commodities Act, 1955 and the various Control Orders

passed by the Government from time to time. The Fair Price Shop owner being an

essential part of the public distribution system has certain duties and

responsibilities. He is not permitted to sell any ration commodity in the open

market. He is also not allowed to store any public distribution commodity in any

place outside the shop-cum-godown as endorsed in the license without previous

permission of the licensing authority.

In the instant case, public distribution items were seized by the police when

they were allegedly smuggled from the Fair Price Shop of the petitioner to a private

shop. Upon physical verification of the stock huge quantity of shortfall in respect of

rice and wheat were detected. The petitioner, before the appellate authority, has

given reasons to defend the shortfall in physical stocks. The petitioner claims that

he received the entire stock and a portion of it was kept in a nearest stock point.

During his short absence his son was looking after the Fair Price Shop and not

being aware of the stock point he could not exhibit the stock which was stored in

the other room. The petitioner practically admitted the charge that ration articles

were stored at a place not endorsed in his license hence not permissible under the

Control Order.

The act of the petitioner in storing the public distribution articles outside the

shop-cum-godown as endorsed in the license without previous permission of the

licensing authority is illegal and contrary to the Control Order.

The criminal case against the petitioner is still continuing. According to the

petitioner as he is yet to be convicted, accordingly, he ought not to be punished

and he may be permitted to run his business till a decision is taken by the

competent court. Reliance has been placed by the petitioner on the ratio that an

accused is deemed to be innocent unless he is proved to be guilty.

It is true that in criminal jurisprudence one cannot be punished prior to

being proved guilty by a competent court of law. At the same time, it is true that

the petitioner is holding a license and is dealing with public distribution items. The

petitioner has admitted that a portion of his stocks were kept in another room. The

allegation against the petitioner is that he was smuggling those goods to a private

shop. Whether the allegation is true or not is to be decided by the competent court.

The petitioner being a licensed FPS owner has to act with some amount of integrity

and honesty. Dishonesty by persons dealing with public distribution articles ought

not to be tolerated or encouraged in any manner.

The petitioner holds a position of trust in the society and if the said trust is

somehow lost then the general public, more specially the consumers, will be the

ultimate sufferers. Government provides various articles at subsidised rates to be

distributed to the public through the Fair Price Shop owners under the Public

Distribution System. It is not desirable that a person who loses the trust of the

consumers be permitted to continue the business till he is proved innocent. If

consumers lose faith and trust, then the public distribution system will collapse.

Other FPS owners may be encouraged to indulge in similar type of illegal activities.

Inaction against such unscrupulous persons or any leniency shown will send a

wrong message to the society and chances are that such type of activity may recur

in future.

The Director of Rationing considered the second appeal filed by the petitioner

and keeping in mind public interest thought it prudent not to entrust the

petitioner the responsibility of handling rationed articles. Thereafter the authority

misdirected himself and came to the opinion that the order of termination

warrants modification. He further opined that the license of the appellant should

be placed under suspension till disposal of the pending criminal case. The reason

attributed for such modification is not supported by law.

According to the Control Order, a license may be kept under suspension till

the disposal of the departmental proceeding by the Sub-Divisional Controller. The

authority may terminate the license or may reduce the volume of business through

reduction of tagged ration cards and/or impose fine according to the gravity of the

offence. In the instant case, the Director of Rationing erroneously revoked the

order of termination of the license of the petitioner and put him under suspension

till the disposal of the pending criminal case.

Two different proceedings were initiated against the petitioner - one under

the criminal law of the land and the other under the Control Order. The criminal

case against the petitioner is pending but the departmental proceeding against him

concluded. On conclusion of the departmental proceeding a final order is required

to be passed. An order of suspension till disposal of a criminal proceeding, in my

opinion, cannot be a final order. The departmental proceeding in that case remains

pending subject to the order passed in the criminal proceeding.

As the petitioner was covered by the Essential Commodities Act, he will be

punished, if found guilty, in accordance with the provisions of the said Act. If the

petitioner is found guilty in the criminal proceeding, he will be dealt with

appropriately in accordance with the criminal law. Punishment in the

departmental proceeding is awarded in accordance with the Control Order and not

in accordance with the criminal law. In the departmental proceeding the authority

concerned is to act in accordance with the statutory law governing the field. The

department may impose fine as mentioned in the Schedule A of the Control Order,

2013. Licence may be terminated or the volume of business may be reduced. The

appellate authority cannot continue to keep a licensee under suspension for an

indefinite period.

In view of the above, the impugned order of the second appellate authority,

i.e the Director of Rationing is liable to be set aside and is accordingly set side. The

instant writ petition is disposed of by directing the Director of Rationing, West

Bengal, respondent No. 3 herein to take a fresh decision in the matter, strictly in

accordance with the provisions of the Control Order within a period of eight weeks

from the date of communication of this order. The said respondent shall pass a

reasoned order and communicate the same to the petitioner immediately

thereafter.

WPA 13536 of 2021 is disposed of.

Urgent certified photo copy of this judgment, if applied for, be supplied to

the parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)