A. Kabir, J.
1. The petitioner is a company claiming to be carrying on business of exporting non-basmatl rice to Bangladesh In terms of the Import and Export policy published by the Central Government under section 5 of the Foreign Trade (Development and Regulation) Act, 1992.
2. On 9th January. 1999, a rake of 40 wagons containing 2335 Metric tonnes of non-basmatl rice procured by the petitioner company from Bhatlnda in Punjab, arrived at Krishnagar Railway Station. On 12th January, 1999, the petitioner company obtained a transit permit for the said consignment of rice from the Deputy Secrelary, Food and Supplies Department, Government of West Bengal, against a Letter of Credit dated 25th November, 1998, In respect whereof a transit permit had earlier been issued for 1620 Metric tonnes of non-basmatl rice on 14th December, 1998, and which had, thereafter, been twice amended to provide for export of an additional amount of 3240 Metric tonnes of such rice.
3. Appearing in support of the writ petition, Mr. Soumen Ghosh submitted that although after obtaining the transit permit on 12th January, 1999, the petitioner wanted to take delivery of the rice in question from therailway wagons, he was prevented from doing so by the Goods Shed Supervisor, Krishnagar Railway Station, who informed the petitioner's representative that the District Enforcement Officer had instructed him not to deliver the consignment of rice to the petitioner's representative.
4. In view of the refusal of the railway authorities to release the consignment of rice, the petitioner wrote to the different authorities, including the District Enforcement Branch, Informing them that although the petitioner had obtained transit permit the rice in question had not been released.
5. Mr. Ghosh submitted that ultimately on I7th January, 1999, the Petitioner was compelled to move the first of the two writ applications, namely. W.P. No. 1052(W) of 1999, against threats of seizure by the District Enforcement Officer, I, Nadla, and also against the refusal of the Goods Shed Supervisor at the Krishnagar Railway Station to deliver the rice In question on production of the Railway Receipts.
6. Mr. Ghosh submitted that after being served with a copy of the writ petition, the said Goods Shed Supervisor agreed to deliver the rice upon payment of demurrage charges by the petitioner. Accordingly, on 23rd January, 1999, the petitioner paid the demurrage charges under protest and began unloading the rice. Immediately after the said consignment of 2335 Metric tonnes of rice was unloaded, the same was seized. On 24th January, 1999. the District Enforcement Offlcer(I), Nadla, lodged a First Information Report with the Kotwalli Police Station alleging that the transit permit produced by the petitioner had been forged and requesting the Officer-in-Charge to start a case against the petitioner under section 7(1)(a)(11) of the Essential Commodities Act. 1955, and sections 463, 465 and 468 1PC On the basis of the said FIR a case was started against the petitioner, being Kotwalli P.S. Case No. 27/99 dated 24lh January, 1999.
7. In view of the seizure effected by the District Enforcement Officer(I), Nadla and the commencement of the criminal case, the petitioner moved the second writ application, being W.P. No. 2590(W) of 1999, challenging the said seizure and the criminal proceedings, as also the First Information Report lodged by the District Enforcement Officer (I), Nadia.
8. Mr. Ghosh submitted that the petitioner company was unable to take delivery of the aforesaid consignment of rice when it arrived at the Krishnagar Railway siding on 9th January, 1999, inasmuch as, the transit permit which had been applied for by the Company under paragraph 10(2) of the West Bengal Rice and Paddy (Control) Order, 1997, had not been received till then. Subsequently, on receiving the said transit permit on 12th January, 1999, the petitioner company tried to obtain delivery of the said rice but failed on account of the refusal of the Goods Shed Supervisor at the Krishnagar Railway Siding to deliver the said goods, apparently on the instructions received from the District Enforcement Officer (I), Nadla.
9. Mr. Ghosh submitted that the petitioner company has been exporting non-basmati rice procured from outside the State of West Bengal for a long time and on no occasion had it to face the kind of unwarranted obstruction that it was now faced with. Mr. Ghosh submitted that the Export Policy of the Central Government, did not impose any restriction on the exportof non-basmati rice and the same could be exported freely without any licence. However, in view of the Promulgation of the West Bengal Plee and Paddy (Control) Order, 1997 and the Insertion of paragraph 10(2) therein by subsequent amendment, the petitioner company in due deference to the provisions of the said paragraph applied for grant of transit permit for the consignment of rice and having obtained the same lawfully, proceeded to take further steps for export thereof.
10. Mr. Ghosh submitted that the allegations being sought to be made against the petitioner company in respect of the seized consignment of rice were wholly without basis and bad been made with malafide motive. Mr. Ghosh submitted that although when the writ applications were Initially moved, it had been submitted on behalf of the respondents that the transit permit obtained by the petitioner company in respect of the seized consignment of rice was forged, subsequently, in view of the affidavit affirmed by Shri Shantanu Chatterjee, Deputy Secretary, Food and Supply Department, Government of West Bengal, stating that in pursuance of the application dated 26th December, 1998, made by the petitioner company, he had issued the Transit Permit No.36 dated 12th January, 1999, under his signature, a different stand was taken on behalf of the other respondents to the effect that the petitioner company had used the same letter of Credit for obtaining two transit permits for two different consignments of rice.
11. Mr. Ghosh urged that there was nothing unlawful in the same Letter of Credit being used for two different consignments of goods when the said Letter of Credit was amended to Increase the quantity of goods to be exported. Mr. Ghosh submitted that while the original Letter of Credit had been issued in respect of 1620 Metric tonnes of non-basmatl rice, it was subsequently amended on two occasions whereby the original amount covered by the said Letter of Credit was Increased by 3240 Metric tonnes. The petitioner company had obtained the first transit permit on 14lh December, 1998, against the original quantity of 1620 Metric tonnes and had obtained the subsequent Transit Permit No. 36 of 12th January, 1999, in respect of the additional quantity covered by the amended Letter of Credit.
12. Mr. Ghosh, therefore, urged that under no circumstances could it be contended that the petitioner company had either forged any document or made any misrepresentation in order to obtain a document with the object of exporting the seized consignment or rice. Mr. Ghosh urged that there was no basis whatsoever for the allegations made in the First Information Report and the same did not make out any case which warranted the continuance of the Investigation thereunder.
13. Referring to the First information Report, Mr. Ghosh pointed out that the allegations contained therein were the alleged contravention of paragraph 5 of the amended provisions of the West Bengal Rice and Paddy (Control) Order, 1997 and paragraph 7(2) thereof by storing without permit and also the commission of offences under sections 463/465/468 Indian Penal Code read with section 7(1)(a)(ii) of the Essential Commodities Act, 1955.
14. Mr. Ghosh urged that none of the said allegations had any basis and could be sustained.
15. Mr. Ghosh pointed out that paragraph 5 of the amended 1997 Control Order provided for substitution of paragraph 9(1) of the Original Control Order with the following words :--
'No person shall store or attempt to store any quantity of rice or paddy procured in the State of West Bengal or from outside the State of West Bengal for export without valid permit in Form 'G' granted by the Director or by the Controller, if so authorised by the Government.'
16. Mr. Ghosh submitted that since the petitioner had been refused delivery of the consignment of rice by the Goods Shed Supervisor at the Kalyanl Railway Siding on the Instructions of the District Enforcement Officer (I), Nadla, the question of storage by the petitioner prior to delivery did not arise.
17. In support of his submissions, Mr. Chosh referred to and relied on a decision of the Orlssa High Court In the case of Prem Bahadur v. State of Orrissa (1978 Criminal Law Journal, Page 683) wherein it was observed that between the expression 'possession' and 'storage' some elements may be common and, therefore, it would be appropriate to say that in all cases of storage there would be possession. Yet, all possession may not amount to storage since the expression 'storage' In the common parlance meaning connotes the concept of continued possession. There is an element of continuity of possession spread over some time and the concept is connected with the idea of a regular place of storage,
18. Mr. Ghosh reiterated his contention that the bold allegations in the First Information Report did not make out any offence either under the provisions of the 1997 Control Order, the Essential Commodities Act or under sections 463/465/468 Indian Penal Code, without any supporting and corroborating evidence. Mr. Ghosh urged that in the instant case there was absolutely no material in support of such allegations from which an offence under the provisions of the 1997 Control Order or the Essential Commodities Act, 1955, and the Indian Penal Code could be said to have been made out. Except for the there statement that such offence had been committed by the petitioner company, no other material or details have given in support of such allegations Jn the First Information Report. Mr. Ghosh urged that in such cases the Hon'ble Supreme Court had reportedly held that it would be cbntrary to justice to allow such an Investigation to be allowed to continue to the severe prejudice of the accused.
19. In support of his said submissions, Mr. Ghosh firstly referred to the oftrepeated decision of the Hon'ble Supreme Court in State of West Bengal v, Swapan Kr. Guha, more popularly known as the 'Snnchalta Investment Case', reported In : 1982CriLJ819 , wherein It was. Inter alia, observed that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful Investigation. It was observed further that an Investigation could be quashed, if no cognizable offence was disclosed by the FIR Observing that the condition precedent to the commencement of investigation under section 157 of the Criminal Procedure Code in that the FIR must disclose, prlma facie, that a congnizable offence has been committed, it is wrong to supposethat the police have unfettered direction to commence Investigation under section 157 of the Code. Their right of enquiry is conditioned by the existence of a reason to suspect the commission of a cognisable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence.
20. Mr. Ghosh also referred to and relied upon the other well-known decision on this point in the case of State of Haryana v. Ch. Bhqjan Lal, reported in : 1992CriLJ527 , wherein the question of quashing of the FIR and the Investigation on the basis thereof, in exercise of the power under Article 226 of the Constitution or under section 482 of the Criminal Procedure Code, has been considered and certain guidelines had been laid down whereunder such powers could be exercised. Referring to the first two of the said guidelines, Mr. Ghosh urged that the same were, in fact, reiteration of the principles enunciated in the Sanchaita Investment Case to the effect that the Court would interfere with on Investigation started on the basis of the First Information Report or complaint where the allegations made, even if taken at their face value and accepted In their entirely, do not prima facie constitute any offence or make out a case against the accused or where the allegations in the FIR and other materials, if any, do not disclose a cognizable offence justifying an investigation by police officers under section 156(1) of the Criminal Procedure Code except under an order of a Magistrate within the purview of section 155(2) of the Code, Mr. Ghosh also referred to the fifth guideline which provides for interference where the allegations made in the FIR or complaint are so absurd and inherently Improbable on the basis of which no prudent person could ever read a just conclusion that there was sufficient ground for proceeding against the accused.
21. Mr. Ghosh lastly referred to a recent decision of the Hon'ble Supreme Court In the case of Ashok Chaturvedi v. Chital H. Chanchani (1998 Criminal Law Journal, Page 4091) where also while considering the question of quashing of an order taking cognizance, it was observed by the Supreme Court that a bald allegation without any supporting materials could not be the basis of taking cognizance and the same was, therefore, liable to be quashed.
22. Mr. Ghosh then urged that in view of the export policy of the Central Government relating to export of non-basmati rice and the restrictions being sought to be imposed thereupon by the provisions of the West Bengal Rice and Paddy (Control) Order, 1997, several writ petitions had been filed challenging the vires of the said provisions and several Interim orders had been passed allowing export of such quality of rice, subject to any restrictions Imposed by the Central Government in this behalf after obtaining necessary transit permit under paragraph 10(2) of the 1997 Control Order.
23. Mr. Ghosh submitted that the initial refusal by the Goods Shed Supervisor at the Railway Siding at Krishnagar and the subsequent seizure of the consignment of rice in question and commencement of criminal and confiscation proceedings on the basis thereof were highly illegal and without any basis and were liable to be quashed.
24. Appearing for the Inspector General of Police, District Enforcement Branch and the Superinlendentof Police, Madia. Mr. Sanjib Misra submitted that since the allegations against the petitioner were of a serious nature and investigation In respect thereof was pending, such investigation should be allowed to continue lo Its logical conclusion, particularly since the FIR contained sufficient materials to make out a prima facie case against the petitioner company.
25. Mr. Misra, who had initially submitted on instructions that the documents used by the petitioner company had been forged, modified his earlier stand and submitted that the second Transit Permit had been obtained by the petitioner company on 12th January, 1999, by misrepresentation of facts on the basis of a Letter of Credit against which a Transit Permit had already been obtained by the petitioner company on 14th December, 1998, for an earlier consignment of rice measuring 1620 Metric tonnes.
26. Mr. Misra urged that the petitioner's application for two Transit Permits against the same Letter of Credit had given rise to a suspicion that the said permits had been Improperly procured and the matter was under Investigation.
27. Mr. Misra also contended that a watch had been kept over the consignment of rice and despite having arranged for transport of the said rice, the petitioner did not take steps to unload the same from the railway wagons on 8th January, 1999. Mr. Misra submitted that the petitioner company had tried to export the entire consignment of rice on 8th January, 1999. but was unable to do so on account of the close watch being kept by the Enforcement Branch. Mr. Misra urged that although a Transit Permit in respect of the consignment of rice had been obtained by the petitioner on 12th January. 1999, its representative presented the Railway Receipts for taking delivery of the rice only on 23rd January, 1999. which also gave rise to the suspicion that the second Transit Permit had been Improperly procured.
28. Mr. Mlsra added that the petitioner company had been procuring permits In a clandestine and Illegal manner and had been exporting huge quantities of rice to Bangladesh through different border points without complying with the provisions of the West Bengal Rice and Paddy (Control) Order, 1997.
29. Mr. Mlsra then submitted that the manner in which the representative of the petitioner company had taken delivery of the Transit Permit on 12th January, 1999, gave credence to the allegation that the same had been procured in an Improper and clandestine manner. In the Issue Register it had been recorded that the Transit Permit was Issued to the petitioner company against a serial number In respect whereof another document had earlier been issued, which according to Mr. Misra, clearly indicated that the matter involving grant of the second Transit Permit against one Letter of Credit required further investigation as to the commission of an offence by the pelitioner company under sections 463, 465 and 463 Indian Penal Code.
30. Having regard to the averment made in the affidavit affirmed by Shri Shantanu Chatterjee, Deputy Secretary, Food and Supply Department,Government of West Bengal, that he had Issued the Transit Permit No.36 dated 12th January, 1999, on the application made by the petitioner company, Mr. Misra referred to the statement made by the deponent under section 161 Cr.PC in connection with Kotwall P.S. Case No. 27/99. In his said statement Mr. Chatterjee had indicated that Transit Permit cannot be issued twice against the same Letter of Credit and if he had known that a Transit Permit had already been granted in respect of the self-same Letter of Credit, he would not have Issued the second Transit Permit.
31. Mr. Mlsra also urged that as would appear from the registration certificate Issued to the petitioner by the Agricultural and Processed Food Products Export Development Authority (APEDA), the petitioner company was entitled to export only 1620 Metric tonnes of non-basmatt rice and no Transit Permit could, therefore, be given for export of a larger quantity of rice.
32. Mr. Misra submitted that it would be apparent from the above that there were sufficient materials on record to make out a prima facie-agalnst the petitioner, not only for contravention of the relevant provisions of the West Bengal Rice and Paddy (Control) Order, 1997, but also under sections 463, 465 and 468 of the Indian Penal Code and that the investigation should not, therefore, be stifled at this early stage.
33. From the submissions made on behalf of the respective parties and the materials on record the allegation against the petitioner company appears to be that it had been exporting non-basmatl rice after obtaining permits in a clandestine and illegal manner and that as far as the present consignment of rice in question is concerned, the petitioner company had tried to export the same on 8th January, 1999, but having failed to do so had procured a Transit Permit on 12th January. 1999, in respect of the said consignment upon suppression of the fact that a Transit Permit had earlier been obtained against the self-same Letter of Credit on 14th December. 1998.
34. As far as the case made out in the FIR is concerned, it has been alleged that without obtaining any permit in that behalf the petitioner company had stored the rice In question in the railway wagons and had attempted to export the same without Transit Permit, and had, therefore, contravened the provisions of paragraph 5 of the amended 1997 Control Order. It has also been alleged that the petitioner company had stored the rice in question in the railway wagons for the purpose of obtaining a Transit Permit therefor by using false documents.
35. The other allegation is that the petitioner company had committed offences under sections 463/465/468 1PC read with section 7(1)(a)(ii) of the Essential Commodities Act, 1955.
36. As far as the first allegation is concerned, except for certain bald statement no details of any of the alleged clandestine and illegal dealings of the petitioner company have been cited. As far as the present consignment of rice is concerned, the same was still in the railway wagons and delivery thereof had not been taken by the petitioner company prior to 23rd January, 1999. The allegation that the petitioner company had tried to export the same on 8th January, 1999, is, therefore, without any substance.Furthermore, the consignment of rice is said to have arrived at the Krlshnagar Railway Siding not on 8th January, 1999, but on 9th January, 1999.
37. As to the allegation that the petitioner company had illegally obtained a second Transit Permit against the same Letter of Credit, the same also appears to be without substance, inasmuch as, the Letter of Credit was twice amended to enhance the limit of the goods to be exported thereunder. Nothing has been produced on behalf of the respondents to establish that two Transit Permits cannot be issued in respect of a single Letter of Credit covering different consignments. All that an exporter, who Intends to tranship his consignment of rice through West Bengal is required to do is to obtain a Transit Permit under paragraph 10(2) of the 1997 Control Order for such consignment, which the petition company has done in the instant case. The allegation of misrepresentation by the petitioner company in obtaining the second Transit Permit Is of no consequence and stands negated.
38. The allegation made In the FIR that the petitioner company had unlawfully stored the consignment of rice in the railway wagons and had thereby violated the provisions of the West Bengal Rice and Paddy (Control) Order, 1997, relating to storage, is equally untenable. Since the petitioner company had been unable to obtain delivery of the rice in question on production of the Railway Receipts, the allegation of storage becomes meaningless as the petitioner company had no control over the said rice. As will appear from the letter dated 12th January, 1999, being annexure 'E' to the second writ petition, the petitioner company had Informed the District Magistrate, 24 Parganas (North), and all the concerned authorities of its Intention to export the rice through the Benapole (Petrapole) border, as it had received the Transit Permit, a copy of which was enclosed. The petitioner company could not take steps to act in terms of its letter as possession of the rice was not make over to the petitioner till 23rd January, 1999. The amended provisions of the 1997 Control order whereby the provisions of paragraph 9(1) were sought to be substituted, makes storage of rice procured from outside the State without a valid permit in Form 'G' an offence, in the instant case such a stage had not arrived since the petitioner company was not In possession of the goods which were alleged to have been stored in violation of paragraph 9(1) of the 1997 Control Order.
39. The decision of the Orissa High Court cited by Mr. Ghosh in the case of Prem Bahadur (supra) explains the position with lucidity. Storage connotes possession and that, too, continuous possession. There has to be an element of continuity of possession spread over some time in a place regularly used for such storage. None of the said elements are present In this case since the petitioner company was not in possession of the goods alleged to have been stored.
40. The allegation of unlawful storage has no basis and has also to be discarded.
41. This leaves us with the allegation of an offence having been committed by the petitioner company punishable under sections 463/465/ 488 IPC read with section 7(l)(a)(li) of the Essential Commodities Act, 1955.Here, too, except for a bald allegation that the petitioner company had committed such offences there is absolutely no material in the FIR in support of such an allegation. Furthermore, it has been admitted by the Deputy Secretary, Food and Supply Department, Government of West Bengal, that he had Issued the Transit Permit No.36 dated 12th January. 1999, under his signature, which negates the allegation regarding commission of an offence punishable under sections 463/465/468 1PC.
42. The observations made by the Hon'ble Supreme Court in the Sanchaita Investment Case (supra) appear to be most appropriately applicable to the facts of this case. As was observed by the Hon'ble Supreme Court in the said case, it is wrong to suppose that the police have unfettered discretion to commence investigation under section 157 CrPC. Their right of enquiry is dependent on a reason to suspect the commission of a cognizable offence disclosed prima facie in the FIR.
43. The other decisions of the Hon'ble Supreme Court cited by Mr. Ghosh in the case of State of Haryana v. Ch. Bhajan Lal (supra) and Ashoke Chaturvedi v. Chital H. Chanchanl (supra) reiterate the views expressed in the Sanchalta Investment Case and add that a bald allegation, without any supporting materials, could not be the basis for taking cognizance. The same is the case in the present case as well.
44. In my view, the materials disclosed, together with the allegations in the FIR, do not provide any reason to suspect the commission of a cognizable offence and applying the ratio of the aforesaid decisions the FIR and the investigation commenced thereupon must be quashed.
45. There is one other aspect of the submissions made by Mr. Misra as to the transaction registered with APEDA. It has been urged by him that under the registration certificate disclosed in the writ petition the petitioner company was entitled to export only 1620 Metric tonnes of non-basmatl rice and no Transit permit could have been given for export of a larges quantity. In reply to Mr. Misra's contention it was submitted by Mr. Ghosh that consequent upon enhancement of the amount of rice to be exported necessary permission had also been obtained from APEDA as averred in sub-paragraph (k) of paragraph 5 of the Affidavit-in-Reply affirmed on behalf of the petitioner company.
46. In the circumstances aforesaid the writ applications must succeed and are allowed. In fact, the reliefs prayed for in the first writ application, namely, W.P. 1052(W) of 1999, have been rendered infructuous by the subsequent seizure of the rice in question which is the subject matter of challenge in the second writ petition, W.P. No. 2590(W) of 1999. Since, In my view, none of the allegations made against the petitioner company in respect of the present consignment of rice have any substance and since the FIR does not also provide any reason to suspect the commission of a cognizable offence, the said FIR and the Investigation commended thereupon, being Kotwall P.S. Case No. 27/99 dated 24th January. 1999. under section 463/465/468 1PC read with section 7(1)(a)(ii) of the Essential Commodities Act, 1955, and the connected Confiscation Proceeding Initiated under section 6A of the said Act pursuant to the search and seizure effected on 23rd and 24th January, 1999, are hereby quashed. Therespondents are directed to release the seized rice to the petitioner company and to allow the petitioner company to tranship the same on the basis of the Transit Permit No. 36 dated 12th January. 1999, issued by the Deputy Secretary, Food and Supply, Government of West Bengal. The respondents concerned shall extend the period of the Transit Permit suitably to enable the petitioner to avail of the same.
There will be no order as to costs. Leave is given to the petitioner's learned Advocate to communicate this order to the concerned authorities, who are directed to act on the basis of such communication.
If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expedltlously, subject to compliance with all the required formalities.
Having regard to the observations made herelnabove, the prayer for stay of this order made on behalf of the respondents is considered and refused.
47. Petition allowed