Tapen Sen, J.
1. In this Writ Petition, the Petitioners pray for an Order commanding upon the Respondents to withdraw Memos dated 18.7.2008 and 30.9.2008 as contained in Annexures- P5 and P8 respectively. By reason of the Memo dated 18.7.2008, the Collector EC Act, Burdwan (Respondent No. 5) informed the Petitioner No. 2 that upon perusal of a Police Report as well as FIR-cum-Seizure list and also other documents, he was satisfied that the Petitioners had violated paragraphs 4(1) (a)/8(c) and 14 of the West Bengal Rice Mills and Wholesalers (Control and Levy) Order 2007 against which Khandogosh P.S. Case No. 03 of 2008 had been registered and therefore, a proceeding was drawn up against the said Petitioner No. 2 (being the owner of the Petitioner No. 1 Jagat Mata Rice Mill) and therefore, he was directed to show cause as to why the seized articles be not confiscated.
2. By reason of the other impugned Memo dated 30.9.2008 as contained in Annexure- P8, a similar Notice asking the Petitioner to show cause by 13.10.2008 as to why the seized articles should not be confiscated was issued. The Petitioners have also prayed for quashing the aforementioned Khandagosh P.S. case No. 3 of 2008 dated 22.1.2008 and have also made a prayer for issuance of a Writ of Mandamus for return of the seized articles and Books of Accounts.
3. The short facts of this case are that the Petitioner No. 1 is said to be a Private Limited Company registered under the Companies Act 1956 and the Petitioner No. 2 is its Managing Director. The Petitioner No. 3 looks after the day-to-day affairs of the business of the Petitioner No. 1. The said Rice Mill is situated in the District of Burdwan. The Rice Mill is a Small Scale Industry registered under the Directorate of Cottage and Small Scale Industries.
4. Further relevant facts are that the Petitioners were initially under a financial crisis and the Mills were closed for some time and therefore they were not able to lift paddy from the Government and as a result thereof, they could not pay the levy. However, the aforementioned Control Order came into force on and from 23.11.2007 and after recovering from financial crisis the Petitioners started regularly delivering levy rice to the State Government and after obtaining release Certificates against such levy rice, they have been selling the same in the open market by strictly complying with the terms and conditions of the said Control Order.
5. According to the Petitioners, on 31.1.2008 they loaded 200 quintals in 400 bags of 50 Kgs. each on a Truck bearing Registration No. WB-41/0447. Similarly they also loaded the following quintals of rice in the following manner:
-----------------------------------------------------------------Sl. No. Date Quantity No. of bags Truck No.-----------------------------------------------------------------a) 2.2.2008 200 400 WB- 41/07877-----------------------------------------------------------------b) 12.2.2008 200 400 WB-41A/3168-----------------------------------------------------------------c) 16.2.2008 199.49 400 WB0-37/5780-----------------------------------------------------------------d) 26.2.2008 199.89 400 WB-41/0092-----------------------------------------------------------------e) 27.2.2008 130.06 261 WB-11/9869-----------------------------------------------------------------f) 7.3.2008 199.79 400 WB-41/9697-----------------------------------------------------------------g) 7.6.2008 200 400 WB-51/2195-----------------------------------------------------------------
According to the Petitioners, they delivered the rice loaded as above to the different Godowns and the Food and Supplies Department in the District of Burdwan for delivery of levy rice and the Inspector in-charge (F&S;) of those Godowns duly accepted the said levy rice by putting his signature and seal on the challans which are Annexure-P2 series between pages 35 to 42 of the Writ Petition.
6. Thereafter, on a number of occasions, the Petitioners wanted to deliver further levy rice to the State Government but almost on each occasion, the Inspector (F&S;) and in charge of the concerned Godowns, returned the levy rice expressing inability to receive the same on the ground of shortage of space.
7. It is the further case of the Petitioners that after delivery of levy rice to the State and the FCI, the concerned authorities of the Food and Supplies Department issued release Certificates not in respect of the actual quantity supplied but in respect of small quantities of levy free rice with an assurance to release the Certificates soon but despite such assurances, the actual release Certificates against the entire quantities delivered were not issued thereby restraining the Petitioners from selling their product in the open market. However after getting release Certificates for small quantities, the Petitioners sold the levy free rice to the Assignees, as appointed by the F&S; Department. Some of the challans have been brought on record vide Annexure- P3 series between pages 43 to 50 of the Writ Petition.
8. It is the further case of the Petitioner that thereafter all of a sudden on 22.1.2008, some inspecting Personnel of the Food and Supplies Department came to the Petitioner's Rice Mill and without giving any instruction for production of Books of Accounts, and without taking any physical measurement of the stocks of paddy and rice lying in the Mill and without making any verification, prepared a false Report with the Khandagosh P.S. which was subsequently registered as Khandogosh P.S. case No. 3 of 2008 dated 22.1.2008. It is stated that on the same day, at about 10 A.M., these Officers seized all Books of Accounts and the entire quantity of rice including levy free rice on the alleged ground of non-delivery of levy rice against the outturn ratio of 68% of parboiled rice.
9. It is their further case that the Seizure List was not handed over to the Petitioners. It is their allegation that the Officers conducted the raid in a pre-determined manner for implicating the Petitioners in a false and fabricated case and therefore, conducted the entire search and seizure without following the due process of law and seized the Books of Accounts and stock of rice in an extremely hasty and in a hurried manner. The FIR is Annexure- P4.
10. The Petitioners have further stated that while, on the one hand they were not allowed to deliver levy rice to the State Government on the ground of shortage of space in the godowns but, on the other hand, the Officers refused to issue release Certificates of the levy rice against the actual quantity delivered by the Petitioners. Under such circumstances, they were absolutely shocked when they received the first impugned Memo dated 18.7.2008 informing the Petitioners that they had violated paragraphs 4(I) (a)/8(c) and 14 of the said West Bengal Rice Mills and Wholesalers (Control and Levy) Order 2007 and were directed to show cause accordingly by 28.8.2008 vide Annexure-P5.
11. Before proceeding any further, it would be worthwhile to quote paragraphs 4(1)(a), 8(c) and 14 of the said Order which read as follows:
4. Levy on rice produced in a rice mill:
(1) Every miller shall sell to State Government or its designated agency and the FCI 50 per cent of the quantity of rice produced or manufactured out of paddy received by him in any rice mill from the date of commencement of this order, excluding paddy received from the designated agencies appointed by the Government of West Bengal or by the FCI, on instructions from the Government of West Bengal, specially for the purpose of milling for delivery as Custom Milled Rice to the designated agencies of the Government of West Bengal or to the FCI.
8. Certain restriction on Purchase of Paddy, sale of Rice and Milling of millers:
(c) No miller shall sell, deliver or otherwise dispose of or move out of any rice mill any quantity of rice produced or manufactured in any such rice mill out of paddy owned by him until he sells and delivers to the State Government or its designated agency and the FCI the quantity of rice required to be sold under the provision of sub-paragraph(1) of paragraph 4 and except in accordance with a release certificate issued by the Director.
14. Maintenance of register:
(1) Every miller shall maintain a register indicating the quantity of paddy purchased, milled and rice delivered under levy on each day. Similarly, a separate register shall also be, maintained to keep records of paddy received, milled and rice delivered by the miller undertaking custom milling operation for State Govt./State Agency/FCI.
(2) He shall furnish fortnightly return to the Director containing an abstract of the above accounts for fortnightly periods ending the 15th and the last date of every calendar month and the return shall reach the Director within the five days of the close of the fortnight.
(Quoted)
12. The Petitioners filed their Cause denying all the allegations and submitted that the Mill was not functioning from 14.1.2008 to 21.8.2008 and therefore, there was no entry in the Register. The levy, as assessed, had already been deposited and they had also deposited more than 70 % of the levy amount assessed by the concerned Controller (F&S;), Burdwan.
13. Challenging the aforementioned Control Order of 2007, the Bengal Rice Mills Association and others filed W.P. 1713 (W) of 2008 and by an Order dated 5.3.2008, another Hon'ble Single Judge of this Court directed the filing of Affidavits along with an Interim Order restraining the Respondents from taking any penal or coercive action or taking any documents from the members of the Petitioners in the event they could not sell levy rice on the basis of the out-turn ratio @ 67% or 68% for raw and parboiled rice. It was further clarified, in the same Order, that the concerned Rice Mill Owner will continue to sell rice/deposit levy rice on the basis of the out-turn ratio of 63% and 64% depending on group of rice and till further Orders.
14. According to the Petitioners, the Petitioner No. 2 is an active member of the Bengal Rice and Mill Association and therefore he pursued the aforesaid case actively before this Court and therefore, they are being harassed.
15. The Order of this Court passed on 5.3.2008 is Annexure- P7. The Petitioners have stated that after obtaining the Court's Order and after communicating the same, they convened a meeting which was held in the presence of the State leadership where the Petitioner No. 2 was an active participant and despite having the knowledge of the Order dated 5.3.2008, the Collector once again issued the second impugned Notice dated 30.9.2008 whereby and whereunder the Petitioners were again asked to show cause. The Petitioners have stated in paragraph 15 that the Petitioner No. 2 obtained anticipatory bail from the learned Sessions Judge, Burdwan on 29.7.2008 and thereafter the Petitioners filed a reply denying all allegations. According to the Petitioners, a false and fabricated case has been lodged against the Petitioners with the sole intention to teach them a lesson so that they may be compelled to dissociate themselves with the Association and stop pursuing the case.
16. In their Affidavit-in-opposition filed on behalf of the District Controller (F&S;) (Respondent No. 6), it has been stated that on 22.1.2008, the Officers of the Food and Supplies Department made a Compliance Inspection-cum-visit at the Rice Mill and on Verification of the Books of Accounts and stocks of paddy, serious discrepancies was found such as:
a) Paddy as per book balance : 1550 qtlsb) Paddy actually found on verification : 2200 qtlsc) Discrepancy : 650 qtls (Excess)d) Rice as per book balance : 578 qtlse) Rice actually found on verification : 200 qtlsf) Discrepancy : 378 qtls
17. It is their further case that the Rice Mills did not discharge their obligations in terms of the Control Order upto 22.1.2008 and on the contrary, sold 378 quintals of Rice in the open market without obtaining release Order from the competent authority and therefore they violated the provisions of paragraphs 4 and 8 of the said Order and accordingly, the Police case was instituted. They have further stated that a stock 2200 quintals of common variety paddy and 200 quintals of common boiled rice were found from the custody of the rice miller which was then kept under the Zimma of one Pappu Bhakat alias Surya Narayan Bhakat of Polempur with proper Zimmanama. It has also been stated that a confiscation proceedings being Confiscation Miscellaneous Case No. 4 (EC) of 2008 has been initiated. It has also been stated that after the raid of 22.1.2008, the Petitioners have further stated that delivery of levy rice and the records reveals that the said Mill had delivered levy rice to the extent of 1529.23 quintals as against their legal obligation of supplying 1343 quintals upto 30.9.2008. It is therefore the case of the Respondents that such delivery of levy rice after 22.1.2008 as per provisions of the law does not however absolve them from the charges levelled against them earlier. The Order sheet etc. of the confiscation proceedings which show that the confiscation case is still pending.
18. From a perusal of the aforementioned facts and circumstances, it is evident that the entire case is based on facts. It is also evident that a FIR being Khandagosh P.S. case No. 3 of 2008 dated 22.1.2008 has been lodged against the Petitioners. Consequently and at this stage, it will be highly improper to quash the said Khandogosh P.S. Case No. 3 of 2008 as has been prayed for by the Petitioners in Para-(f) read with Paras (c) and (d) of the Writ Petition. Since these cases are pending, it will also not be proper for this Court to interfere with the Orders dated 18.7.2008 and 30.9.2008 by which proceedings were drawn up under Section 6A of the EC Act directing the Petitioners to show cause as to why the seized articles be not confiscated.
For the foregoing reasons, no interference is called for. The same is dismissed. There shall however, no Order as to costs.
Upon appropriate Application(s) being made, urgent Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.