Basistha Narayan Misra Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- orderparitosh kumar mukherjee, j.1. this writ petition was being moved on behalf of basistha narayan misra, partner of m/s. northern india trading agency, inter alia, praying for issue of a writ in the nature of mandamus commanding the director of consumer goods to rescind, recall, withdraw and/or set aside the impugned memo no. cg/fu/bc/6/89 (part-ii)/121 dated february 18, 1991, no. cg/fu/bc/6/90/169(8) dated may 4, 1991 and no. cg/fu/bc/6/90/158/l(14) dated april 9, 1991 of the director of consumer goods, west bengal and also for issue of writ in the nature of mandamus commanding the special inspector general of police (enforcement branch), west bengal not to proceed with the investigation and/or to quash proceeding in the case no. 17(12)90, 18(12)90, 19(12)90 and 20(12)90 dated december 21, 1990, pending before the judge, special court, alipore (essential commodities act) and g.r.p. case no. 5/91 dated january 5, 1991, in the court of judicial magistrate, 1st class, 6th court, sealdah, 24-parganas, against the petitioner.2. this writ petition was admitted by u.c. bannerjee, j. on october 10,1991, when his lordship directed that the investigation shall continue, but no final order shall be passed.3. therefore, when the matter appeared before his lordship on january 16, 1992, directions for affidavits were passed and ultimately the writ petition was heard-in-part by me on february 21,1992 in the presence of mr. nishit nandan adhikari, when it was adjourned till february 26, 1992.4. mr. bikash ranjan bhattacharya, led by mr. ashok ganguly, learned advocates appearing on behalf of the writ petitioner, at the final hearing of the writ petition submitted that till 1978, 'breeze coke' was being sold as a free sale commodity, subject to non-sponsored movement by the railway and no separate licence was required for distribution and sale of 'breeze coke' from the director of consumer goods or any other authority of the state.5. he further submitted that subsequently, the state government in their efforts to mitigate acute fuel crisis in the state, allowed eligible licensees of different districts also to have wagon allotments for transportion of breeze coke. the director of consumer goods, west bengal, who sponsors wagons with the railway authorities in respect of different breeze coke dealers according to availability of wagons, by order no. cg/ fu/bc/6/88 dated september 16, 1988 directed that booked consignment of allotted breeze coke shall be despatched to the destination nearest to the place of business of | the dealer. 6. according to the petitioner, the role of the director of consumer goods thus strictly restricted to facilitation of movement of stocks of 'breeze coke' through sponsorship of wagons only where necessary. thus, according to the petitioner the 'breeze coke' is not an 'essential commodity' and as such the director of consumer goods has no jurisdiction in the matter of stopping the business of the petitioner. 7. according to the petitioner, the petitioner, not being a licensee of soft coke and only acted as the financier and mover of stocks for such breeze coke dealers, -on mutually beneficial terms and contractual understanding. as financier, the duty and responsibility of the petitioner is limited to j make payment to the suppliers for the j consignment booked and deliver the railway receipts to the consignee concerned on realisation of cost of breeze coke and service charges from them. so, according to the petitioner, he has no responsibility whatsoever for taking delivery of the consignment at the destination or even for wagons missing in transit.8. mr. bhattacharya further submitted that the district consignees appointed their own agents and transporters to take the stock from destination at calcutta to their place of business pursuant to the order dated november 30, 1990 of the director of consumer goods. such arrangement, where the consignee takes delivery of the stock against indemnity bond and his transporters moves the stock from railway siding to his place of business the role of the petitioner, all the more restricted and limited since the consignment is released by the consignee against indemnity bond and their transporters move the stock from the railway siding to their place of business leaving the petitioner not much to do in the transaction after the wagons have left the yard of the steel plant.9. according to the petitioner, he moved 1740.20 mt of breeze coke in 4 rakes on behalf of different breeze coke dealers during the month of march, june, july and sept. 1990, as shown in the annexed statement marked 'e'. in case of such of the 4 consignments, the rakes reached the destination and were cleared by the consignee concerned much before the railway receipts were received by the petitioner, as evident from the annexed statement. incidentally, it may be mentioned that more often railway wagons reached destination much faster than railway receipts and unless immediate steps are taken to clear the consignment, it will incur unnecessary demurrages.10. according to the petitioner, the enforcement branch of the west bengal police, on a total misconception and misappropriation of the status, role, functions and responsibility of the petitioner, 'as financier', and 'programmer', for transpor^ tation of breeze coke on behalf of different consignees, quite unlawfully filed a complaint against the petitioner on december 21, 1990, in case no. 17(12)90, 18(12)90, 19(12)90 and 20(12)90 for alleged violation of provisions of section 7(1)(a)(ii) of the essential commodities act, 1955 and para 4 of the west bengal soft coke licensing order, 1965, before the special court, alipore, on the charge that the petitioner brought or took active part to bring breeze coke, obtained delivery of the same and finally disposed of the materials illegally, without bringing the stock to the licensed premises of the consignee, in violation of para 4 of the said control order and section 7(1)(a)(ii) of the essential commodities act, 1955.11. further, according to the petitioner, the enforcement branch of the state police again impleaded the petitioner, in g.r.p. case no. 5/91.dated january 5, 1991, under sections 406, 420, 467, 468, 471 and 120-b of penal code before the judicial magistrate, 6th court, sealdah, 24-parganas, about a fortnight after the enforcement branch had instituted complaint before the special court on december 21, 1990 case no. 17(12)90, 18(12)90, 19(12)90 and 29(12)90.12. according to the petitioner, in the chargesheets, he has been impleaded as a 'soft |coke dealer', which is totally wrong, since to be a dealer of soft coke one has to obtain licence from the concerned authority and without licence one cannot operate.13. the petitioner admittedly, being a financier and programmer has all along represented in that capacity before the director of consumer goods, railway authority, indian iron and steel co. ltd. and all the aforesaid authorities did active cooperation, until the institution of the abovemen-tioned impugned legal proceedings, in financing, programming in the movement of breeze coke supply.14. further, according to the petitioner in the chargesheets, it has been alleged that 'breeze coke', after these have been brought on the strength of sponsorship certificate at ballygung siding, the consignment had been released against production of indemnity bond and without giving notice to the director of consumer goods and other concerned officials within 48 hours from the arrival of the consignment and that the materials were not taken to the licensed premises and by such action the petitioner is alleged to have violated paragraph 4 of the said control order and section 7(1)(a)(ii) of the essential commodities act, 1955.15. according to the petitioner he is not at all a licence holder, in respect of sale of soft coke and as such, no question of alleged violation of the provisions of section 7(1)(a)(ii) of the essential commodities act, had arisen, in the facts of the present case.16. according to the writ petitioner, from the aforesaid facts and circumstances, it appears that the complainant, that is, enforcement branch, having anticipated for not being able to substantiate case no. 17 (12)90, 18(12)90, 19(12)90 and 20(12)90, instituted on december 21, 1991, before the special court at alipore, had chose to initiate separate g.r.p. case no. 5/91 dated january 5, 1991 before the judicial magistrate, 6th court, sealdah on the selfsame ground under sections 406, 467, 468, 471 and 120-b of ipc. although there is no specific instance for alleged violation for any of these sections of ipc arid even after expiry of over 8 months, the respondent authorities have not been able to frame any chargesheet, in connection with the said specific cases.17. thus, according to the petitioner, the cases, by impleading the petitioner wrongfully for alleged connivance in disposing of the stock of breeze coke, engaging in illegal trade, forging documents, etc. do not and cannot stand at all.18. in such circumstances, the present writ petition was being moved seeking for reliefs, quoted hereinabove.19. mr. bhattacharya has placed para 4 of the west bengal soft coke licensing order, 1965 before this court, which runs as follows:--'paragraph 4:after thirty days from the date on which this order comes into force in any area, no person in such area shall sale soft coke or carry on trade in soft coke unless he is in possession of a valid licence under para 6 and except in accordance with the conditions specified in such licence: provided that the provisions of this paragraph shall not apply to the selling of coal dust under and in accordance with a permit in writing issued in this behalf by the director or the district magistrate as the case may be.' 20. according to mr. bhattacharya from the aforesaid provision of paragraph 4 of the said control order, it appears that no person should be allowed to sell soft coke or carry on trade in soft coke unless he is in possession of a valid licence.21. mr. bhattacharya submitted that 'soft coke' has been defined in para 3(e) which runs in the manner following:--'soft coke includes 'soft coke dust', gas coke, smithy gas coke, gas coke breeze, gas coke dust, briquettes or coke prepared from soft coke dust, gas coke dust.'22. mr. bhattacharya then submitted that the petitioner being financier or mover in respect of some licence holders of soft coke licence, issued under the west bengal soft coke licensing control order, 1965, is entitled to carry out the business of 'gas coke breeze' which are the waste of the oriental gas company, which ultimately stopped its work prior to 1974, accordingly the availability of 'gas coke breeze' came to an end. the said licensees thereafter used to deal with 'breeze coke' from the year 1974, which are waste of the hard coke used in steel plants. it was also submitted that the said steel plants used only hard coke and as such availability of gas coke and/ or soft coke from the said plants does not arises.23. mr. bhattacharya, submitted that from 1974 to 1978 there was no question of sponsorship of such business.24. in the year 1978, the ministry of railway informed the state of west bengal that they will allot railway wagon for bringing breeze coke from the steel plants side according to the recommendation of the state government. the said request was made for non-availability of sufficient number of railway wagon. the state government after considering the hardship of the small licensees under the control order of 1965, for the first time in 1978 framed scheme for distribution of the said wagons to the licensees under the said control order of 1965. the said scheme was amended from time to time and finally the scheme was framed on june 27, 1990, which is now in operation.25. xerox copies of the said sponsor schemes have been annexed as annexure 'a' to the writ petition at pages 38 to 42 and the order of allotment of railway wagon at pages 43 to 47 and the allotment of wagon of state of west bengal has been shown as annexure 'b' at page 48 of the writ petition.26. mr. bhattacharya further submitted that prior to 1978 when there was no allotment of wagon question of filing papers never arose. it has been submitted that the persons who are bringing 'breeze coke' from the steel plants by road transport are not under any obligation to produce any papers whatsoever and that the iron and steel plants also sell the said waste commonly known as 'breeze coke', under open tender and one of such tender notice has been annexed as annexure 'f' at pages 112 and 113 of the writ petition.27. according to mr. bhattacharya it is to be noted that no step has been taken against the said steel plants till this date.28. the writ petitioner, however, categorically stated that the business of the petitioner is quite different from that of dealing with coal and in support of the said claim trade licence has been made a part of the writ petition as annexure 'g'. the case of the writ petitioner is that the respondents had never exercised any control over the purchase, sale and/or fixation of price and that the licensees were permitted to make free sale.29. on the basis of the fir dated dec. 21, 1990, complaint case were filed by the police authorities, under section 7(1)(a)(i) of the essential commodities act, 1955, being case numbers 5/90, 323, 324, 325 and 326 of 1990 for alleged violation of the control order of 1965 describing 'breeze coke' as 'gas breeze coke.'30. in this connection, mr. bhattacharya further submitted that the licensees are of district nadia and the district magistrate of nadia had not taken any step against the said licensees, under the said central order of 1965 nor their licences were attested though the petitioners, who are not licensees were arrested and was finally released on bail.31. the charge though submitted before the learned special court were never served upon the petitioners in spite of repeated requests and finally the petitioners obtained the certified copy of the chargesheet and filed the same with the supplementary affidavit.32. in this context, mr. bhattacharya then referred to a bill dated march 14, 1991, issued by the tata iron and steel co. ltd. where coke breeze were supplied to m/s. shree ganesh coal co. according to mr. bhattacharya, it is 'coke breeze', which does not come within the purview of the said control order.33. next, mr. bhattacharya referred to another bill sent by the indian iron and steel co. ltd. (kulti iron works), wherein 100 ft. coke breeze was supplied to m/s. shree ganesh coal co., which according to mr. bhattacharya is hard coke and as such is not a controlled commodity.34. mr. bhattacharya further referred to a communication of the indian iron and steel co. ltd. dated may 8, 1991, wherein it has been pointed out that 'breeze coke' is product, byt-product coke, plant size of which is 0 to 10mm. in the process of by-product hard coke production fractions which come out in the above size is 'breeze coke'. as such, it is 'neither soft coke or gas coke breeze'.35. he has also referred to a certificate dated april 23, 1991 issued by the deputy chief mining engineer (production) b.c.c.l., wherein it has been pointed out that this type 'breeze coke' does not come in the category of 'soft coke'.36. mr. bhattacharya then referred to another communication dated march 20, 1991, written by sri a. k. sen, the then minister of steel and mines, india, to smt. geeta mukherjee, wherein the minister of steel and mines made the following comments :--'in fact, there are, at present surplus stocks of mixed coke and coke breeze that dsp. the plant is not able to despatch this material by rail due to constraints in railway booking durgapur steel plants have, therefore, been permitted to make efforts to clear the stock which have piled as early as possible and if necessary, to auction the material.'37. mr. bhattacharya then referred to another communication dated june 14,1991, wherein it has been certified that mixed coke is arising in course of production of bp hard coke in coke oven and by-product plant and it is neither soft coke nor gas coke.38. lastly, mr. bhattacharya referred to the communication dated february 19,1991, written by mr. asim barman, the district magistrate, burdwan, wherein comments had been made to the following effect:--'as the said coal products do not strictly fall under the category of 'soft coke', the district magistrate is not in a position to issue any licence to these depot-holders, as there is no provision for doing so in the statute and control orders issued under e.c. act.'39. mr. nishit nandan adhikari, learned advocate, appearing for the respondents filed two affidavits, one on behalf of the respondents nos. 1 and 2 and the other by respondents nos. 3, 4, 5 and 7.40. the deponent in the first affidavit in paragraph 4 and its sub-paragraphs stated that 'breeze coke' is an essential commodity and that for the livelihood of the railway plot-holder sponsorship of railway wagons was considered necessary. since, the director of consumer goods is the sponsoring authority of movement of rakes, director of consumer goods derives his power from the alleged sponsorship to control the business of breeze coke. on receipt of complaint from the police authority, about the misappropriation of breeze coke rakes, the director of consumer goods withheld all sponsorship financed by the petitioner.41. it has been further stated that 'gas breeze coke' comes within the west bengal soft coke control order of 1965. it was also stated in the said affidavit that no sponsorship was necessary at the time when the control order was framed and due to subsequent change of situation, the scheme being annexure 'a' to the writ petition was framed.42. in the second affidavit filed on behalf of the respondents nos. 3, 4, 5 and 7, which was affirmed by the respondent no. 3, it was submitted that four rakes were brought containing 'breeze coke gas' in the month of january, august and september 1990 in the names of different soft coke licensees, under the said order of 1965. the said item falls within the meaning of section 3(e) of the control order of 1965. the said dealers appointed the petitioner as agent to lift the breeze coke from iisco burnpore against sponsorship certificate and to hand over the same at ballygunge station. it was allowed that the delivery of goods were taken by the petitioner and that the said fact could be proved by the fact that the petitioner did not realise any costs, charges etc. and as such, the petitioner is guilty of violation of control order of 1965, as they are not licensees.43. it has also been alleged in the affidavit that the petitioner illegally disposed of commodities brought under sponsorship and sold them in conspiracy with the licensees, and as such, offences under section 7(1)(a)(ii) of the essential commodities act, 1955, has been committed by the petitioner. though, in fact the said charges were not framed but were submitted before the learned court. it was also stated that a criminal breach of trust has been committed with the agreement entered into with the director of consumer goods by using forged documents and by entering into criminal conspiracy. the case being g.r.p. case no. 5 dated january 5, 1991, under section 106/420/467/468/120-b, ipc. had been instituted and that investigations are still pending. it is also to be noted that one of the accused died as back as in 1984. it was stated in the affidavit that such explanation that 'breeze coke' is 'gas breeze coke' was given by sri a. mishra, director of consumer goods. in any case, the whole case was made on the alleged ground that the goods were taken by forging documents. the petitioner, however, denied all material allegations.44. appearing for the respondents, mr. adhikari, learned advocate, submitted that; 16 criminal cases were instituted on the basis of 16 fir, which resulted in issuing of hargesheet, which are the subject matter of challenge in the instant writ petition.45. he also submitted that specific criminal cases, apart from the violation of the control order of 1965, are also the subject matter of challenge. the petitioner had also challenged suspension of sponsorship of licences in favour of the petitioner, who are financier and/or movers. he further submitted that the licensees themselves have not come forward to challenge the action of the respondents, but the financier has come up before this court to challenge the same.46. referring to the provisions of section 157 of the criminal. p.c. 1973, mr. adhikari submitted that since a cognizance had already been taken, in view of the observation of the privy council in the case of king emperor v. khwaja nazir ahmad, reported in , the investigation should not be stopped by this court.47. in this context, he has also referred to the case of state of west bengal v. swapan kumar guha, reported in : 1982crilj819 .48. in paragraph 65 of the said judgment, the supreme court observed as follows :--'whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. in considering whether an offence into which an investigation is made or to be made, is disclosed or not, the court has mainly to take into consideration the complaint of fir and the court may in appropriate cases take into consideration the relevant facts and circumstances of the case. on a consideration of all the relevant materials, the court has come to the conclusion whether an offence is disclosed or not. if on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. if, on the other hand, the court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.'49. he has also referred to the observation of the supreme court in the case of state of bihar v. p.p. sharma, reported in 1992 scc (criminal) 192, also reported in : 1991crilj1438 , wherein supreme court had considered the initiation of the mala fide criminal investigation and observed as follows:'in the instant case, there was no material to show that the prosecution against the accused was initiated as a result of malice on the part of the informant or the investigating officer. there was no material at all to show that prior to the lodging of the fir there was any enmity between the accused and the informant/investigating officer. the question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for unauthorised purpose. there was no material whatsoever in this case to show that on the date when the fir was lodged by the informant he was activated by bias or had any reason to act maliciously. the dominant purpose for registering the case against the accused was to have an investigation done into the allegations contained in the fir and in the event of there being sufficient material in support of the allegations to present the charge-sheet before the court. there was no material to show that the dominant object of registering the case was the character assassination of the accused or to harass and humiliate them. therefore, the allegations of mala fide against the informant based on the facts after the lodging of the fir would be of no consequence and cannot be the basis for quashing the proceedings.'50. thus, according to mr. adhikari, gas coke is also breeze coke.51. referring to the f.i.r. from page 118 of the writ petition, mr. adhikari also cited to a decision in the case of state of u.p. through c.b.i., s.p.e., lucknow v. r.k. srivastava, reported in : 1989crilj2301 , wherein it has been observed by the supreme court as follows (at page 2302 (of cri lj):'it is now well settled principle of law that if the allegations made in the f.i.r. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such f.i.r. should be quashed.'52. according to mr. adhikari, a perusal of the f.i.r. would show that sufficient particulars have been furnished for criminal investigation and the said case was not a case of statutory offence where, whether an offence has been committed would depend on the interpretation of statute and not on the basis of perusal of factual details. as such, on the factual background in f.i.r., the high court sitting under articles 226/227 of the constitution of india cannot embark upon the trial of the case, considering the case filed before the writ court.53. mr. adhikari further submitted that in the instant case, the entire case of the prosecution is based on the question whether 'breeze coke' is an 'essential commodity' or not. according to mr. adhikari, admittedly, 'breeze coke' is not soft coke, as defined under paragraph 3(c) of the west bengal soft coke licensing order, 1965.54. on the other hand, the learned counsel for the petitioner has relied on the expression 'gas coke breeze' in order to bring 'breeze coke' within the definition of the said licensing order, but it appears that in the f.i.r. or in the charge-sheet, reference has been made only to 'breeze coke', which is nowhere, included within the definition of the said licensing order.55. so, according to the writ petitioner, the present case is not coming under the provision of para 4, of the control order of 1965.56. in this circumstances, it has become necessary for this court to decide the following points, raised by the parties:(i) whether 'breeze coke' is 'soft coke' and comes within the meaning of 'gas coke breeze' and if not whether the f.i.r., so lodged disclose any offence?(ii) whether the scheme framed being annexure 'a' to the writ petition by which director of consumer goods sponsors railway wagons comes within the purview of essential commodities act?(iii) whether there was any agreement between the petitioner and the director of consumer goods and/ or whether director of consumer goods, who is not the authority or licensing authority of soft coke under the control order of 1965, beyond calcutta?(iv) whether the director of consumer goods was the owner of the breeze coke and in the absence of any complaint whether the police can by itself continue with two criminal cases for the self same cause of action?57. in my view, on the basis of the opinion expressed by the assistant general manager (t & rm) of the indian iron and steel co. ltd. in his communication dated may 8,1991 to shree ganesh coal co., breeze coke is product, by-product coke plant, and is neither 'soft coke' nor 'gas coke breeze'.58. similarly, from the certificate issued by the deputy chief mining engineer (production) of bharat coking coal ltd., dated april 23, 1991, it appears that 'breeze coke' does not come in the category of 'soft coke'.59. further, there are surplus stocks of mixed coke and coke breeze at durgapur steel plant, and the said steel plant was liable to put the same to auction and, therefore, in my view, mixed coke and coke breeze cannot come under the purview of essential commodities act, as pointed out in the letter written by a. k. sen, the former minister of steel and mines, india, to smt. geeta mukherjee, m.p. dated march 20, 1991.60. further, it appears from the letter written by sri s. dutta, manager (commercial) of steel authority of india ltd. dated june 14, 1991, addressed to m/s. dharani cements ltd., that 'mixed coke' is an arising in course of production of bp hard coke ovens and by-product plant and it is neither 'soft coke' nor 'gas coke'.61. the letter written by shri asim bardhan, the district magistrate, burdwan to the secretary, department of food & supplies, dated february 19, 1991 also evidences that coal products do not strictly fall under the category of 'soft coke', the said district magistrate was not in a position to issue any licence to these depot-holders, as there is no provisions for doing so, in the statutes and control orders, issued under essential commodities act.62. this court is also of the view that since the director of consumer goods sponsors railway wagons only to facilitate transportation and movement of breeze coke, it cannot be suggested that 'breeze coke' comes within the purview of essential commodities act and as there was no violation of the provisions of paragraph 3(e) of the said control order, and, as such, no offence alleged to have been committed by the writ petitioner, being the financier and this court is of the view that since the petitioner is not 'a licensee', the director of consumer goods has no authority to issue banning order, in respect of the writ petitioner for carrying on business of 'breeze coke'.63. lastly, this court is of the view that on the basis of the f.i.r. dated december 21, 1990, which contains 'a mere opinion', formed by mr. ashis kumar chaudhury, the inspector of police, enforcement branch, west bengal, the learned special judge is not competent to take cognizance of the alleged offence, without arriving at the necessary independent conclusion of his own as to whether the petitioner is carrying on business 'as a licensee', in respect of 'breeze coke' or not.64. it appears from the said f.i.r. that the said inspector of police, enforcement branch made the following comments in his report:--'the above quantity of 'breeze coke' was brought by the above dealers vide si. nos. (5) to (9) as defined under para 3(d) of the said order on the strength of sponsorship certificate/permits issued by the director of consumer goods, west bengal. during verification it transpired that the 'gas coke breeze' @ 'breeze coke' in the above wagons were brought to ballygung railway siding and were unloaded there between 26-7-90 and 27-7-90, by m/s. northern india trading agency of 44/45 kings road, howrah-i, b.n. missir @ misra, ashok kr. saha, amar kumar saha, bhag-wan prasad gupta vide s1. nos. 1 to 4 mentioned above took active part to bring the above consignments of 'breeze coke' and also played active role in obtaining delivery of the above consignments of 'breeze coke' and further illegally disposed of those materials. the said 'breeze coke' was never brought to the licensed premises of the above noted licensed dealers in the district of nadia. no arrival report was submitted to the dcg/ sc, f&s;, krishnanagar by the licensees as enjoined under condition no. 4 of the licence read with para 12 of the order and order no. cg/fu/bc/g/88/33 dt. 16-9-88 issued by the director of consumer goods, west bengal. no endorsement was obtained in the log book of the dealers from the licensing authority nor the agreement/declaration made by the soft coke licensees before the dcg/sc, f&s;, krishnanagar was honoured to. the entire stock of the said 'breeze coke' @ 'gas coke breeze' was disposed of in clandestine manner by the above persons in violation of para 4 of west bengal soft coke licensing order, 1965, committing offence under section 7(1)(a)(ii) of act x/55'.65. thus, it appears from the said f.i.r, that the said inspector of police, enforcement branch, was not sure about the legal position and had merely forwarded the f.i.r. without being satisfied whether 'breeze coke' is an essential commodity and the petitioner had violated the provisions of section 7(1)(a)(ii) of the essential commodities act, 1955.66. in the circumstances stated above, this court is of the view that the petitioner being 'a financier' is not a licensee and on the basis of a mere opinion, expressed by the inspector of police, enforcement branch, no offence is disclosed for violation of the provisions of the west bengal soft coke licensing order, 1965.67. in view of the judgment in the case of state of west bengal v. swapan kumar guha (supra), in considering whether an offence into which an investigation is made or to be made, is disclosed or not, the court has mainly to take into consideration the complaint or f.i.r. and the court may, in appropriate cases, take into consideration the relevant facts and circumstances of the case and on consideration of all relevant materials, on record, in this case, this court is of the view that no offence has been disclosed, so that the petitioner should be tried either before the judge, special court or before the learned magistrate, 1st class, sealdah.68. this court is also of the view that the observations of the supreme court in the case of c.b.i., s.p.e., lucknow v. r.k. srivastava (supra), can be made applicable with full force in the facts of the present case and the allegations made in the f.i.r., if are taken at their face value and accepted in their entirety, the criminal cases instituted on the basis of such vague f.i.r. should be quashed.69. in the result, the writ petition succeeds.70. the director of consumer goods is restrained from giving any effect to the impugned memo. no. cg/fu/bc/6/89/ (part-ii)/121 dated february 18, 1991, no. cg/fu/bc/6/90/169(8) dated may 4, 1991 and no. cg/fu/bc/6/90/158/1(14) dated april 9, 1991 and the criminal proceeding in case no. 17(12)90, 18(12)90, 19(12)90 and 20(12)90, all dated december 21, 1990, pending before the judge, special court, alipore (essential commodities act) and g.r.p. case no. 5/91 dated january 5, 1991 in the court of judicial magistrate, 1st class, 6th court, sealdah, are set aside.71. the writ petition is allowed to the extent indicated above.72. there will be no order as to costs.73. parties will be entitled to have xerox copy of this judgment on usual undertaking.

Judgment:
ORDER

Paritosh Kumar Mukherjee, J.

1. This writ petition was being moved on behalf of Basistha Narayan Misra, partner of M/s. Northern India Trading Agency, inter alia, praying for issue of a Writ in the nature of Mandamus commanding the Director of Consumer Goods to rescind, recall, withdraw and/or set aside the impugned Memo No. CG/FU/BC/6/89 (Part-II)/121 dated February 18, 1991, No. CG/FU/BC/6/90/169(8) dated May 4, 1991 and No. CG/FU/BC/6/90/158/l(14) dated April 9, 1991 of the Director of Consumer Goods, West Bengal and also for issue of Writ in the nature of Mandamus commanding the Special Inspector General of Police (Enforcement Branch), West Bengal not to proceed with the investigation and/or to quash proceeding in the Case No. 17(12)90, 18(12)90, 19(12)90 and 20(12)90 dated December 21, 1990, pending before the Judge, Special Court, Alipore (Essential Commodities Act) and G.R.P. Case No. 5/91 dated January 5, 1991, in the Court of Judicial Magistrate, 1st Class, 6th Court, Sealdah, 24-Parganas, against the petitioner.

2. This writ petition was admitted by U.C. Bannerjee, J. on October 10,1991, when His Lordship directed that the investigation shall continue, but no final order shall be passed.

3. Therefore, when the matter appeared before His Lordship on January 16, 1992, directions for Affidavits were passed and ultimately the writ petition was heard-in-part by me on February 21,1992 in the presence of Mr. Nishit Nandan Adhikari, when it was adjourned till February 26, 1992.

4. Mr. Bikash Ranjan Bhattacharya, led by Mr. Ashok Ganguly, learned Advocates appearing on behalf of the writ petitioner, at the final hearing of the writ petition submitted that till 1978, 'Breeze Coke' was being sold as a free sale commodity, subject to non-sponsored movement by the Railway and no separate licence was required for distribution and sale of 'Breeze Coke' from the Director of Consumer Goods or any other authority of the State.

5. He further submitted that subsequently, the State Government in their efforts to mitigate acute fuel crisis in the State, allowed eligible licensees of different Districts also to have wagon allotments for transportion of Breeze Coke. The Director of Consumer Goods, West Bengal, who sponsors wagons with the Railway Authorities in respect of different Breeze Coke dealers according to availability of wagons, by order No. CG/ FU/BC/6/88 dated September 16, 1988 directed that booked consignment of allotted Breeze Coke shall be despatched to the destination nearest to the place of business of | the dealer.

6. According to the petitioner, the role of the Director of Consumer Goods thus strictly restricted to facilitation of movement of stocks of 'Breeze Coke' through sponsorship of wagons only where necessary. Thus, according to the petitioner the 'Breeze Coke' is not an 'essential commodity' and as such the Director of Consumer Goods has no jurisdiction in the matter of stopping the business of the petitioner.

7. According to the petitioner, the petitioner, not being a licensee of Soft Coke and only acted as the Financier and mover of stocks for such Breeze Coke dealers, -on mutually beneficial terms and contractual understanding. As Financier, the duty and responsibility of the petitioner is limited to j make payment to the suppliers for the j consignment booked and deliver the railway receipts to the consignee concerned on realisation of cost of Breeze Coke and service charges from them. So, according to the petitioner, he has no responsibility whatsoever for taking delivery of the consignment at the destination or even for wagons missing in transit.

8. Mr. Bhattacharya further submitted that the District consignees appointed their own agents and transporters to take the stock from destination at Calcutta to their place of business pursuant to the order dated November 30, 1990 of the Director of Consumer Goods. Such arrangement, where the consignee takes delivery of the stock against Indemnity Bond and his transporters moves the stock from railway siding to his place of business the role of the petitioner, all the more restricted and limited since the consignment is released by the consignee against Indemnity Bond and their transporters move the stock from the Railway siding to their place of business leaving the petitioner not much to do in the transaction after the wagons have left the yard of the Steel Plant.

9. According to the petitioner, he moved 1740.20 MT of Breeze Coke in 4 rakes on behalf of different Breeze Coke dealers during the month of March, June, July and Sept. 1990, as shown in the annexed statement marked 'E'. In case of such of the 4 consignments, the rakes reached the destination and were cleared by the consignee concerned much before the railway receipts were received by the petitioner, as evident from the annexed statement. Incidentally, it may be mentioned that more often railway wagons reached destination much faster than railway receipts and unless immediate steps are taken to clear the consignment, it will incur unnecessary demurrages.

10. According to the petitioner, the Enforcement Branch of the West Bengal Police, on a total misconception and misappropriation of the status, role, functions and responsibility of the petitioner, 'as financier', and 'programmer', for transpor^ tation of Breeze Coke on behalf of different consignees, quite unlawfully filed a complaint against the petitioner on December 21, 1990, in Case No. 17(12)90, 18(12)90, 19(12)90 and 20(12)90 for alleged violation of provisions of Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and Para 4 of the West Bengal Soft Coke Licensing Order, 1965, before the Special Court, Alipore, on the charge that the petitioner brought or took active part to bring Breeze Coke, obtained delivery of the same and finally disposed of the materials illegally, without bringing the stock to the licensed premises of the consignee, in violation of para 4 of the said Control Order and Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.

11. Further, according to the petitioner, the Enforcement Branch of the State Police again impleaded the petitioner, in G.R.P. Case No. 5/91.dated January 5, 1991, under Sections 406, 420, 467, 468, 471 and 120-B of Penal Code before the Judicial Magistrate, 6th Court, Sealdah, 24-Parganas, about a fortnight after the Enforcement Branch had instituted complaint before the Special Court on December 21, 1990 case No. 17(12)90, 18(12)90, 19(12)90 and 29(12)90.

12. According to the petitioner, in the chargesheets, he has been impleaded as a 'Soft |Coke dealer', which is totally wrong, since to be a dealer of Soft Coke one has to obtain licence from the concerned authority and without licence one cannot operate.

13. The petitioner admittedly, being a financier and programmer has all along represented in that capacity before the Director of Consumer Goods, railway authority, Indian Iron and Steel Co. Ltd. and all the aforesaid authorities did active cooperation, until the institution of the abovemen-tioned impugned legal proceedings, in financing, programming in the movement of Breeze Coke supply.

14. Further, according to the petitioner in the chargesheets, it has been alleged that 'Breeze Coke', after these have been brought on the strength of sponsorship certificate at Ballygung siding, the consignment had been released against production of Indemnity Bond and without giving notice to the Director of Consumer Goods and other concerned officials within 48 hours from the arrival of the consignment and that the materials were not taken to the licensed premises and by such action the petitioner is alleged to have violated paragraph 4 of the said Control Order and Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.

15. According to the petitioner he is not at all a licence holder, in respect of sale of Soft Coke and as such, no question of alleged violation of the provisions of Section 7(1)(a)(ii) of the Essential Commodities Act, had arisen, in the facts of the present case.

16. According to the writ petitioner, from the aforesaid facts and circumstances, it appears that the complainant, that is, Enforcement Branch, having anticipated for not being able to substantiate Case No. 17 (12)90, 18(12)90, 19(12)90 and 20(12)90, instituted on December 21, 1991, before the Special Court at Alipore, had chose to initiate separate G.R.P. Case No. 5/91 dated January 5, 1991 before the Judicial Magistrate, 6th Court, Sealdah on the selfsame ground under Sections 406, 467, 468, 471 and 120-B of IPC. although there is no specific instance for alleged violation for any of these sections of IPC arid even after expiry of over 8 months, the respondent authorities have not been able to frame any chargesheet, in connection with the said specific cases.

17. Thus, according to the petitioner, the cases, by impleading the petitioner wrongfully for alleged connivance in disposing of the stock of Breeze Coke, engaging in illegal trade, forging documents, etc. do not and cannot stand at all.

18. In such circumstances, the present writ petition was being moved seeking for reliefs, quoted hereinabove.

19. Mr. Bhattacharya has placed Para 4 of the West Bengal Soft Coke Licensing Order, 1965 before this Court, which runs as follows:--

'Paragraph 4:

After thirty days from the date on which this order comes into force in any area, no person in such area shall sale soft coke or carry on trade in soft coke unless he is in possession of a valid licence under para 6 and except in accordance with the conditions specified in such licence: Provided that the provisions of this paragraph shall not apply to the selling of coal dust under and in accordance with a permit in writing issued in this behalf by the Director or the District Magistrate as the case may be.'

20. According to Mr. Bhattacharya from the aforesaid provision of paragraph 4 of the said Control Order, it appears that no person should be allowed to sell soft coke or carry on trade in soft coke unless he is in possession of a valid licence.

21. Mr. Bhattacharya submitted that 'Soft Coke' has been defined in para 3(e) which runs in the manner following:--

'Soft Coke includes 'soft coke dust', Gas Coke, Smithy Gas Coke, Gas Coke Breeze, Gas Coke dust, briquettes or Coke prepared from soft coke dust, Gas coke dust.'

22. Mr. Bhattacharya then submitted that the petitioner being financier or mover in respect of some licence holders of soft coke licence, issued under the West Bengal Soft Coke Licensing Control Order, 1965, is entitled to carry out the business of 'Gas Coke Breeze' which are the waste of the Oriental Gas Company, which ultimately stopped its work prior to 1974, accordingly the availability of 'Gas Coke Breeze' came to an end. The said licensees thereafter used to deal with 'Breeze Coke' from the year 1974, which are waste of the hard coke used in Steel Plants. It was also submitted that the said steel plants used only hard coke and as such availability of gas coke and/ or soft coke from the said plants does not arises.

23. Mr. Bhattacharya, submitted that from 1974 to 1978 there was no question of sponsorship of such business.

24. In the year 1978, the Ministry of Railway informed the State of West Bengal that they will allot Railway Wagon for bringing Breeze Coke from the Steel Plants side according to the recommendation of the State Government. The said request was made for non-availability of sufficient number of Railway Wagon. The State Government after considering the hardship of the small licensees under the Control Order of 1965, for the first time in 1978 framed scheme for distribution of the said wagons to the licensees under the said Control Order of 1965. The said scheme was amended from time to time and finally the scheme was framed on June 27, 1990, which is now in operation.

25. Xerox copies of the said sponsor schemes have been annexed as Annexure 'A' to the writ petition at pages 38 to 42 and the order of allotment of Railway Wagon at pages 43 to 47 and the allotment of wagon of State of West Bengal has been shown as Annexure 'B' at page 48 of the writ petition.

26. Mr. Bhattacharya further submitted that prior to 1978 when there was no allotment of wagon question of filing papers never arose. It has been submitted that the persons who are bringing 'Breeze Coke' from the Steel Plants by road transport are not under any obligation to produce any papers whatsoever and that the Iron and Steel Plants also sell the said waste commonly known as 'Breeze Coke', under open tender and one of such tender notice has been annexed as Annexure 'F' at pages 112 and 113 of the writ petition.

27. According to Mr. Bhattacharya it is to be noted that no step has been taken against the said Steel Plants till this date.

28. The writ petitioner, however, categorically stated that the business of the petitioner is quite different from that of dealing with coal and in support of the said claim trade licence has been made a part of the writ petition as Annexure 'G'. The case of the writ petitioner is that the respondents had never exercised any control over the purchase, sale and/or fixation of price and that the licensees were permitted to make free sale.

29. On the basis of the FIR dated Dec. 21, 1990, complaint case were filed by the Police Authorities, under Section 7(1)(a)(i) of the Essential Commodities Act, 1955, being case numbers 5/90, 323, 324, 325 and 326 of 1990 for alleged violation of the Control Order of 1965 describing 'Breeze Coke' as 'Gas Breeze Coke.'

30. In this connection, Mr. Bhattacharya further submitted that the licensees are of District Nadia and the District Magistrate of Nadia had not taken any step against the said licensees, under the said Central Order of 1965 nor their licences were attested though the petitioners, who are not licensees were arrested and was finally released on bail.

31. The charge though submitted before the Learned Special Court were never served upon the petitioners in spite of repeated requests and finally the petitioners obtained the certified copy of the chargesheet and filed the same with the supplementary affidavit.

32. In this context, Mr. Bhattacharya then referred to a bill dated March 14, 1991, issued by the Tata Iron and Steel Co. Ltd. where Coke Breeze were supplied to M/s. Shree Ganesh Coal Co. According to Mr. Bhattacharya, it is 'Coke Breeze', which does not come within the purview of the said Control Order.

33. Next, Mr. Bhattacharya referred to another bill sent by the Indian Iron and Steel Co. Ltd. (Kulti Iron Works), wherein 100 Ft. coke breeze was supplied to M/s. Shree Ganesh Coal Co., which according to Mr. Bhattacharya is hard coke and as such is not a controlled commodity.

34. Mr. Bhattacharya further referred to a communication of the Indian Iron and Steel Co. Ltd. dated May 8, 1991, wherein it has been pointed out that 'breeze coke' is product, byt-product coke, plant size of which is 0 to 10mm. In the process of by-product hard coke production fractions which come out in the above size is 'breeze coke'. As such, it is 'neither soft coke or gas coke breeze'.

35. He has also referred to a certificate dated April 23, 1991 issued by the Deputy Chief Mining Engineer (Production) B.C.C.L., wherein it has been pointed out that this type 'Breeze Coke' does not come in the category of 'Soft Coke'.

36. Mr. Bhattacharya then referred to another communication dated March 20, 1991, written by Sri A. K. Sen, the then Minister of Steel and Mines, India, to Smt. Geeta Mukherjee, wherein the Minister of Steel and Mines made the following comments :--

'In fact, there are, at present surplus stocks of mixed coke and coke breeze that DSP. The plant is not able to despatch this material by Rail due to constraints in railway booking Durgapur Steel Plants have, therefore, been permitted to make efforts to clear the stock which have piled as early as possible and if necessary, to auction the material.'

37. Mr. Bhattacharya then referred to another communication dated June 14,1991, wherein it has been certified that Mixed Coke is arising in course of production of BP Hard Coke in Coke Oven and By-product Plant and it is neither Soft Coke nor Gas Coke.

38. Lastly, Mr. Bhattacharya referred to the communication dated February 19,1991, written by Mr. Asim Barman, the District Magistrate, Burdwan, wherein comments had been made to the following effect:--

'As the said coal products do not strictly fall under the category of 'Soft Coke', the District Magistrate is not in a position to issue any licence to these depot-holders, as there is no provision for doing so in the statute and Control Orders issued under E.C. Act.'

39. Mr. Nishit Nandan Adhikari, learned Advocate, appearing for the respondents filed two affidavits, one on behalf of the respondents Nos. 1 and 2 and the other by respondents Nos. 3, 4, 5 and 7.

40. The deponent in the first affidavit in paragraph 4 and its sub-paragraphs stated that 'Breeze Coke' is an essential commodity and that for the livelihood of the railway plot-holder sponsorship of railway wagons was considered necessary. Since, the Director of Consumer Goods is the sponsoring authority of movement of rakes, Director of Consumer Goods derives his power from the alleged sponsorship to control the business of Breeze Coke. On receipt of complaint from the police authority, about the misappropriation of Breeze Coke rakes, the Director of Consumer Goods withheld all sponsorship financed by the petitioner.

41. It has been further stated that 'Gas Breeze Coke' comes within the West Bengal Soft Coke Control Order of 1965. It was also stated in the said affidavit that no sponsorship was necessary at the time when the Control Order was framed and due to subsequent change of situation, the scheme being Annexure 'A' to the writ petition was framed.

42. In the second affidavit filed on behalf of the respondents Nos. 3, 4, 5 and 7, which was affirmed by the respondent No. 3, it was submitted that four rakes were brought containing 'Breeze Coke Gas' in the month of January, August and September 1990 in the names of different Soft Coke Licensees, under the said Order of 1965. The said item falls within the meaning of Section 3(e) of the Control Order of 1965. The said dealers appointed the petitioner as agent to lift the Breeze Coke from IISCO Burnpore against sponsorship certificate and to hand over the same at Ballygunge station. It was allowed that the delivery of goods were taken by the petitioner and that the said fact could be proved by the fact that the petitioner did not realise any costs, charges etc. and as such, the petitioner is guilty of violation of Control Order of 1965, as they are not licensees.

43. It has also been alleged in the affidavit that the petitioner illegally disposed of commodities brought under sponsorship and sold them in conspiracy with the licensees, and as such, offences under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, has been committed by the petitioner. Though, in fact the said charges were not framed but were submitted before the learned Court. It was also stated that a criminal breach of trust has been committed with the agreement entered into with the Director of Consumer Goods by using forged documents and by entering into criminal conspiracy. The case being G.R.P. Case No. 5 dated January 5, 1991, under Section 106/420/467/468/120-B, IPC. had been instituted and that investigations are still pending. It is also to be noted that one of the accused died as back as in 1984. It was stated in the affidavit that such explanation that 'Breeze Coke' is 'Gas Breeze Coke' was given by Sri A. Mishra, Director of Consumer Goods. In any case, the whole case was made on the alleged ground that the goods were taken by forging documents. The petitioner, however, denied all material allegations.

44. Appearing for the respondents, Mr. Adhikari, learned Advocate, submitted that; 16 criminal cases were instituted on the basis of 16 FIR, which resulted in issuing of hargesheet, which are the subject matter of challenge in the instant writ petition.

45. He also submitted that specific criminal cases, apart from the violation of the Control Order of 1965, are also the subject matter of challenge. The petitioner had also challenged suspension of sponsorship of licences in favour of the petitioner, who are financier and/or movers. He further submitted that the licensees themselves have not come forward to challenge the action of the respondents, but the financier has come up before this Court to challenge the same.

46. Referring to the provisions of Section 157 of the Criminal. P.C. 1973, Mr. Adhikari submitted that since a cognizance had already been taken, in view of the observation of the Privy Council in the case of King Emperor v. Khwaja Nazir Ahmad, reported in , the investigation should not be stopped by this Court.

47. In this context, he has also referred to the case of State of West Bengal v. Swapan Kumar Guha, reported in : 1982CriLJ819 .

48. In paragraph 65 of the said judgment, the Supreme Court observed as follows :--

'Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. In considering whether an offence into which an investigation is made or to be made, is disclosed or not, the Court has mainly to take into consideration the complaint of FIR and the Court may in appropriate cases take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has come to the conclusion whether an offence is disclosed or not. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.'

49. He has also referred to the observation of the Supreme Court in the case of State of Bihar v. P.P. Sharma, reported in 1992 SCC (Criminal) 192, also reported in : 1991CriLJ1438 , wherein Supreme Court had considered the initiation of the mala fide criminal investigation and observed as follows:

'In the instant case, there was no material to show that the prosecution against the accused was initiated as a result of malice on the part of the informant or the investigating officer. There was no material at all to show that prior to the lodging of the FIR there was any enmity between the accused and the informant/investigating officer. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for unauthorised purpose. There was no material whatsoever in this case to show that on the date when the FIR was lodged by the informant he was activated by bias or had any reason to act maliciously. The dominant purpose for registering the case against the accused was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to present the charge-sheet before the Court. There was no material to show that the dominant object of registering the case was the character assassination of the accused or to harass and humiliate them. Therefore, the allegations of mala fide against the informant based on the facts after the lodging of the FIR would be of no consequence and cannot be the basis for quashing the proceedings.'

50. Thus, according to Mr. Adhikari, Gas Coke is also Breeze Coke.

51. Referring to the F.I.R. from page 118 of the writ petition, Mr. Adhikari also cited to a decision in the case of State of U.P. through C.B.I., S.P.E., Lucknow v. R.K. Srivastava, reported in : 1989CriLJ2301 , wherein it has been observed by the Supreme Court as follows (at page 2302 (of Cri LJ):

'It is now well settled principle of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed.'

52. According to Mr. Adhikari, a perusal of the F.I.R. would show that sufficient particulars have been furnished for criminal investigation and the said case was not a case of statutory offence where, whether an offence has been committed would depend on the interpretation of statute and not on the basis of perusal of factual details. As such, on the factual background in F.I.R., the High Court sitting under Articles 226/227 of the Constitution of India cannot embark upon the trial of the case, considering the case filed before the Writ Court.

53. Mr. Adhikari further submitted that in the instant case, the entire case of the prosecution is based on the question whether 'Breeze Coke' is an 'essential commodity' or not. According to Mr. Adhikari, admittedly, 'Breeze Coke' is not soft coke, as defined under paragraph 3(c) of the West Bengal Soft Coke Licensing Order, 1965.

54. On the other hand, the learned counsel for the petitioner has relied on the expression 'gas coke breeze' in order to bring 'breeze coke' within the definition of the said licensing order, but it appears that in the F.I.R. or in the charge-sheet, reference has been made only to 'breeze coke', which is nowhere, included within the definition of the said Licensing Order.

55. So, according to the writ petitioner, the present case is not coming under the provision of para 4, of the Control Order of 1965.

56. In this circumstances, it has become necessary for this Court to decide the following points, raised by the parties:

(I) Whether 'Breeze Coke' is 'Soft Coke' and comes within the meaning of 'Gas Coke Breeze' and if not whether the F.I.R., so lodged disclose any offence?

(II) Whether the scheme framed being Annexure 'A' to the writ petition by which Director of Consumer Goods sponsors Railway wagons comes within the purview of Essential Commodities Act?

(III) Whether there was any agreement between the petitioner and the Director of Consumer Goods and/ or whether Director of Consumer Goods, who is not the authority or Licensing Authority of Soft Coke under the Control Order of 1965, beyond Calcutta?

(IV) Whether the Director of Consumer Goods was the owner of the Breeze Coke and in the absence of any complaint whether the police can by itself continue with two criminal cases for the self same cause of action?

57. In my view, on the basis of the opinion expressed by the Assistant General Manager (T & RM) of the Indian Iron and Steel Co. Ltd. in his communication dated May 8,1991 to Shree Ganesh Coal Co., Breeze Coke is product, by-product Coke Plant, and is neither 'Soft Coke' nor 'Gas Coke Breeze'.

58. Similarly, from the certificate issued by the Deputy Chief Mining Engineer (Production) of Bharat Coking Coal Ltd., dated April 23, 1991, it appears that 'Breeze Coke' does not come in the category of 'Soft Coke'.

59. Further, there are surplus stocks of mixed coke and Coke Breeze at Durgapur Steel Plant, and the said Steel Plant was liable to put the same to auction and, therefore, in my view, mixed coke and Coke Breeze cannot come under the purview of Essential Commodities Act, as pointed out in the letter written by A. K. Sen, the former Minister of Steel and Mines, India, to Smt. Geeta Mukherjee, M.P. dated March 20, 1991.

60. Further, it appears from the letter written by Sri S. Dutta, Manager (Commercial) of Steel Authority of India Ltd. dated June 14, 1991, addressed to M/s. Dharani Cements Ltd., that 'Mixed Coke' is an arising in course of production of BP Hard Coke Ovens and by-product Plant and it is neither 'Soft Coke' nor 'Gas Coke'.

61. The letter written by Shri Asim Bardhan, the District Magistrate, Burdwan to the Secretary, Department of Food & Supplies, dated February 19, 1991 also evidences that Coal Products do not strictly fall under the category of 'Soft Coke', the said District Magistrate was not in a position to issue any licence to these depot-holders, as there is no provisions for doing so, in the statutes and Control Orders, issued under Essential Commodities Act.

62. This Court is also of the view that since the Director of Consumer Goods sponsors Railway Wagons only to facilitate transportation and movement of Breeze Coke, it cannot be suggested that 'Breeze Coke' comes within the purview of Essential Commodities Act and as there was no violation of the provisions of paragraph 3(e) of the said Control Order, and, as such, no offence alleged to have been committed by the writ petitioner, being the financier and this Court is of the view that since the petitioner is not 'a licensee', the Director of Consumer Goods has no authority to issue banning order, in respect of the writ petitioner for carrying on business of 'Breeze Coke'.

63. Lastly, this Court is of the view that on the basis of the F.I.R. dated December 21, 1990, which contains 'a mere opinion', formed by Mr. Ashis Kumar Chaudhury, the Inspector of Police, Enforcement Branch, West Bengal, the learned Special Judge is not competent to take cognizance of the alleged offence, without arriving at the necessary independent conclusion of his own as to whether the petitioner is carrying on business 'as a licensee', in respect of 'Breeze Coke' or not.

64. It appears from the said F.I.R. that the said Inspector of Police, Enforcement Branch made the following comments in his report:--

'The above quantity of 'Breeze Coke' was brought by the above dealers vide SI. Nos. (5) to (9) as defined under para 3(d) of the said order on the strength of sponsorship certificate/permits issued by the Director of Consumer Goods, West Bengal.

During verification it transpired that the 'Gas Coke Breeze' @ 'Breeze Coke' in the above wagons were brought to Ballygung Railway Siding and were unloaded there between 26-7-90 and 27-7-90, by M/s. Northern India Trading Agency of 44/45 Kings Road, Howrah-I, B.N. Missir @ Misra, Ashok Kr. Saha, Amar Kumar Saha, Bhag-wan Prasad Gupta vide S1. Nos. 1 to 4 mentioned above took active part to bring the above consignments of 'Breeze Coke' and also played active role in obtaining delivery of the above consignments of 'Breeze Coke' and further illegally disposed of those materials. The said 'Breeze Coke' was never brought to the licensed premises of the above noted licensed dealers in the district of Nadia. No arrival report was submitted to the DCG/ SC, F&S;, Krishnanagar by the licensees as enjoined under condition No. 4 of the licence read with para 12 of the order and Order No. CG/FU/BC/G/88/33 dt. 16-9-88 issued by the Director of Consumer Goods, West Bengal. No endorsement was obtained in the log book of the dealers from the licensing authority nor the agreement/declaration made by the soft coke licensees before the DCG/SC, F&S;, Krishnanagar was honoured to. The entire stock of the said 'Breeze Coke' @ 'Gas Coke Breeze' was disposed of in clandestine manner by the above persons in violation of para 4 of West Bengal Soft Coke Licensing Order, 1965, committing offence under Section 7(1)(a)(ii) of Act X/55'.

65. Thus, it appears from the said F.I.R, that the said Inspector of Police, Enforcement Branch, was not sure about the legal position and had merely forwarded the F.I.R. without being satisfied whether 'Breeze Coke' is an essential commodity and the petitioner had violated the provisions of Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.

66. In the circumstances stated above, this Court is of the view that the petitioner being 'a financier' is not a licensee and on the basis of a mere opinion, expressed by the Inspector of Police, Enforcement Branch, no offence is disclosed for violation of the provisions of the West Bengal Soft Coke Licensing Order, 1965.

67. In view of the judgment in the case of State of West Bengal v. Swapan Kumar Guha (supra), in considering whether an offence into which an investigation is made or to be made, is disclosed or not, the Court has mainly to take into consideration the complaint or F.I.R. and the Court may, in appropriate cases, take into consideration the relevant facts and circumstances of the case and on consideration of all relevant materials, on record, in this case, this Court is of the view that no offence has been disclosed, so that the petitioner should be tried either before the Judge, Special Court or before the learned Magistrate, 1st Class, Sealdah.

68. This Court is also of the view that the observations of the Supreme Court in the case of C.B.I., S.P.E., Lucknow v. R.K. Srivastava (supra), can be made applicable with full force in the facts of the present case and the allegations made in the F.I.R., if are taken at their face value and accepted in their entirety, the criminal cases instituted on the basis of such vague F.I.R. should be quashed.

69. In the result, the writ petition succeeds.

70. The Director of Consumer Goods is restrained from giving any effect to the impugned Memo. No. CG/FU/BC/6/89/ (Part-II)/121 dated February 18, 1991, No. CG/FU/BC/6/90/169(8) dated May 4, 1991 and No. CG/FU/BC/6/90/158/1(14) dated April 9, 1991 and the criminal proceeding in case No. 17(12)90, 18(12)90, 19(12)90 and 20(12)90, all dated December 21, 1990, pending before the Judge, Special Court, Alipore (Essential Commodities Act) and G.R.P. Case No. 5/91 dated January 5, 1991 in the Court of Judicial Magistrate, 1st Class, 6th Court, Sealdah, are set aside.

71. The writ petition is allowed to the extent indicated above.

72. There will be no order as to costs.

73. Parties will be entitled to have xerox copy of this judgment on usual undertaking.