Md. Abdus Samad Fakir vs The State Of West Bengal & Ors
2023 Latest Caselaw 4184 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                               Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                               WPA 5240 of 2015


                              Md. Abdus Samad Fakir
                                       Vs.
                            The State of West Bengal & Ors.



Mr. Debabrata Saha Roy
Mr. Neil Basu
Mr. Sankha Biswas
            ..for the petitioner

Item No.47.

Heard & Judgment on:           13.07.2023

Bibek Chaudhuri, J.

In the instant writ petition the respondents are not represented

by the learned counsel for the State.

The instant writ petition was filed in the year 2009 in the

Original Side of this Court. Subsequently, in the year 2015 it was

detected that the writ petition is to be heard by the Appellate Side of

this Court and accordingly, the writ petition is registered in the

Appellate Jurisdiction being new number and registration year of

2015. However, in the instant writ petition we shall deal with the

facts starting from 2009 or even prior to that.

By an agreement dated 19th June, 1989/27th June, 1989 the

petitioner was granted along with M.R. distributorship for the centre

of Magrahat under Diamond Harbour Sub-Division in the district of

South 24 Parganas. It is clear from the order dated 19 th June, 1989

issued by the Sub-Divisional Controller, Diamond Harbour, South 24

Parganas that the petitioner was granted licence of MR Distributorship

on the basis of his having a godown situated at Mouza Bilandapur,

plot No. 163, Khatian No. 639. Subsequently, in or about 2004 the

petitioner made an application for temporary approval of another

godown situated at plot No. 941/2251, 941/2252 of Khatian No. 944

in Mouza Magrahat and temporary approval was accorded by the Sub-

Divisional Controller on 8th March, 2004 for using the said godown

temporarily to store M.R. articles. Again temporary approval was

granted by the same authority vide letter dated 9 th August, 2005 in

respect of third godown of the petitioner situated at plot No. 206,

Khatian No. 785, J.L. No. 150 of Mouza Bilandapur under Magrahat

P.S. The petitioner was running his distributorship business from the

above mentioned three godowns. On 30 th July, 2007 the petitioner

was directed to show cause on the basis of a report of the Area

Inspector, Food and Supplies Department who during inspection found

shortage of foodgrains in the godown of the petitioner. It was,

however, not mentioned that each of the above mentioned three

godowns, shortage of foodgrains was found. The petitioners

submitted a reply to the said show cause notice on 31 st July, 2007

stating, inter alia, at the time of inspection he was not present in his

shop. His employee repeatedly requested the Inspecting Team to

inspect the third godown but the Enforcement Team of officers did not

pay any heed to it and without inspecting the third godown submitted

a report stating shortage of wheat amounting to 130 quintals and 29

Kgs and shortage of rice measuring 78 quintals 55 kgs and 300 grams

from the possession of the petitioner. The Sub-Divisional Controller,

Food & Supplies Department considered the reply to the show cause

notice and passed an order of suspension of distributorship of the

petitioner on 2nd August, 2007.

The petitioner challenged the said order by filing a writ petition

being W.P. 24027 (W) of 2007. The said writ petition was disposed of

by an order dated 27th November, 2007 by a Co-ordinate Bench of

this Court. It was held, inter alia, -

"On the basis of the above facts and circumstances and in view

of the observations made with regard to the point of law involved in

this writ application, I find that the impugned order of suspension

dated August 23, 2007 passed by the respondent No.5 is liable to be

set aside. As such, the same stands quashed. The respondent

authority is directed to resume the supply of the M.R. cereals to the

M.R. Distributorship of the petitioner forthwith. However, this will not

prevent the respondent authority to conclude the proceeding initiated

against the petitioner in accordance with law expeditiously."

It appears from the documents annexed with the instant writ

petition that distributorship of the petitioner was restored and

beneficiaries were again tagged with the petitioner's distributorship.

In view of the order passed in the above mentioned writ petition the

petitioner was directed to appear before the District Controller, Food &

Supplies on 3rd January, 2008 at 3 P.M. Hearing was conducted as per

the order passed in the above mentioned writ petition and the District

Controller passed an order dated 21st October, 2008 declaring

termination of the distributorship of the petitioner. This led the

petitioner again to file a writ petition bearing No. WP 26912 (W) of

2008. A Co-ordinate Bench of this Court disposed of the said writ

petition with the following order.

"For these reasons, I dispose of the writ petition ordering as

follows. The impugned decision dated October 21 st, 2008 is hereby set

aside. If the petitioner demands copy of any document on which the

department intends to rely, then the sub-divisional controller shall

examine the question and give appropriate decision, and if copy of the

documents is to be supplied, then it shall be supplied, but if only

inspection can be given, then inspection thereof shall be given, and

the petitioner shall be given an opportunity to submit additional reply.

After examining the explanation and recording his views in terms of

provisions of para 26, the sub-divisional controller shall forward the

entire matter to the district controller, who shall give reasoned

decision in the proceedings after giving a reasonable opportunity of

hearing to the petitioner and the representative of the department.

All steps taken so far on the basis of the impugned decision shall

abide by the fresh decision. There shall be no order for costs."

As per the order passed by the Court in WP No. 26912 (W) of

2008 the petitioner was served with a copy of the report submitted by

the Food Inspector.

It is pointed out by Mr. Saha Roy, learned advocate for the

petitioner that it appears from the said report that on 24 th July, 2007

at about 4 P.M. the Inspector, Food & Supplies Department along with

the team of police officers attached to Enforcement Branch inspected

the godowns of the petitioner. They also examined the relevant stock

register, cash memos and other documents. The Inspecting Team

found shortage of stock of wheat and rice. Thereafter one police

officer attached to Enforcement Branch took possession of all the

relevant registers without conducting any search and seizure as

contemplated in Section 100 of the Code of Criminal Procedure. It is

further submitted by Mr. Saha Roy, learned advocate for the

petitioner WBPDS (Maintenance and Control Order), 2003 made it

mandatory for the Inspecting Team of Food & Supplies Department to

conduct search and seizure in the godown maintained by distributor,

wholesaler or as the case may be in compliance with Section 100 of

the Code of Criminal Procedure.

Sub-Section 4 of Section 100 of the Code of Criminal Procedure

is very relevant in the instant case and the same is reproduced

below:-

"4. Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which the

place to be searched is situate or of any other locality if no such

inhabitant of the said locality is available or is willing to be a witness

to the search, to attend and witness the search and may issue an

order in writing to them or any of them so to do."

From the documents supplied to the petitioner on the basis of

order passed in writ petition No. 26912 (W) of 2008 it is absolutely

clear that the mandatory provision of Section 100 of the Code of

Criminal Procedure was not at all followed at the time of inspection of

two godowns of the petitioner. The petitioner also submitted a prayer

for restoration of his M.R. distributorship by a letter dated 15 th June,

2009 addressed to the Sub-Divisional Controller, Food & Supplies

where he reiterated that the Inspecting Team did not inspect his third

godown. The District Controller (F & S), South 24 Parganas heard his

case and terminated the licence of the petitioner on the following

grounds:-

"Legally speaking the inspecting team could not take into

consideration any stock of foodgrains stored by the licensee (herein

the petitioner) in any other godown other than the licensed premises.

It has already been mentioned that in the licence issued on

19.12.2005 there is mention of only one godown at Mouza-

Bilandapur, plot No. 163, Khatian No. 639. While detecting excess

shortage of foodgrains on 24.07.2007 the inspecting team acted

without four walls of law by not taking into consideration the stock of

foodgrains allegedly stored by the petitioner beyond the licensed

premises."

Surprisingly enough, the District Controller in his order dated

14th September, 2009 failed to appreciate and consider that it is the

Sub-Divisional Controller who is a departmental officer under him

granted temporary approval of two godowns beside the godown

mentioned in the order of licence situated at Mouza Bilandapur. The

said two orders of temporary approval of two godowns were not set

aside or withdrawn by the Administrative Authority.

The impugned order dated 14th September, 2009 is absolutely

silent about the need of compliance of Section 100 of the Code of

Criminal Procedure. This Court in Arun Agarwal versus the State

of West Bengal and Ors., W.P. No. 1299 of 2009 decided on 29th

April, 2010 was pleased to hold that compliance of Section 100 of the

Code of Criminal Procedure relating to search and seizure is

mandatory at the time of conducting search in the godown of the

distributor, wholesaler or dealer of the officials of Food & Supplies

Department in view of Section 25(2) of 2003 Control Order. The same

view was reiterated by another Co-ordinate Bench in W.P. No.329 of

2011: Samir Sadhukhan versus the State of West Bengal &

Ors. decided on 13th December, 2011.

It is contended by Mr. Saha Roy placing reliance of a Supreme

Court decision in the case of Chairman-cum-Managing Director,

Coal India Limited & Ors. Vs. Ananta Saha and Others reported

in (2011)5 SCC 142 that if initial action is not in consonance with

law, subsequent proceeding would not sanctify the same. In the

instant case when inspection of the godown of the petitioner and

search and seizure were not made as per the provision of Clause

25(2) of the Control Order of 2003, all subsequent acts including

impugned order of termination is illegal and liable to be set aside.

This principle is applicable not only to the judicial and quasi-judicial

proceeding but also equally to the administrative order.

The impugned administrative order is based on the inspection

report dated 24th July, 2007. The inspection report suffers from gross

illegality for non-compliance of Section 100 of the Code of Criminal

Procedure. Moreover, the District Controller failed to appreciate that

the competent officer under his department granted approval of

maintaining two more godowns by the petitioner temporarily. The

petitioner is still running his business under order of this Court storing

food materials in all the three godowns. If all the three godowns were

not inspected, there cannot be a conclusive picture as to the shortage

of food materials in the stock of the petitioner on 24 th July, 2007.

In view of what has been stated above, this Court finds the

impugned order dated 14th September, 2009 illegal and mala fide and,

accordingly, the said order is quashed.

The instant writ petition is, accordingly, allowed.

(Bibek Chaudhuri, J.)