Samarendra Nath Bhowmik vs State of West Bengal and Others

Bhagabati Prosad Banerjee, J.—The petitioner in this application under Article 226 of the Constitution of India had challenged the validity of an enquiry or investigation started in connection with the Essential Commodity Case No. 36 of 1987 and Hanskhali P.S. Case No. 7 dated 9.9.87 u/s 7(1)(a)(ii) of the Essential Commodities Act 1955 and the order dated 11.11.87 passed by the Judge, Special Court, Essential Commodities Act, Nadia Krishnagar is Essential Commodity Case No. 36 of 1987. In the instant case, a first information report was lodged against the petitioner by an Assistant Sub-Inspector of Police, Hanskhali Police Station, wherein it was alleged that on getting information that edible oil seeds (Til seed) had been stored beyond declared quantity at the godown of the petitioner at Bagula College Road, P.S. Hanskhali, the said godown was raided and found that there was shortage to the extent of 1 quintal 77 kg. 500 grams of Til Seeds from the stock on comparison of the stocks mentioned in the rate board and the actual stock. Under such circumstances, the entire stock of Til was seized. It was alleged that the petitioner had violated the provisions of para 3 of the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealers Licensing) Order 1978 and para 5 of the Licence which were required under the said Control order. It was further alleged that the petitioner had also violated the provisions of para 3(2) of the West Bengal Declaration of Stock 6c Prices of Essential Commodities Order 1977 and as such the petitioner was liable for prosecution u/s 7(1)(a)(ii) of the Essential Commodities Act 1955. The petitioner filed an application for anticipatory bail before the learned Judge, Special Court under Essential Commodities Act and that a point was taken in that application that Til seeds had not been specifically mentioned in the Schedule to the relevant Control order. The learned Judge observed that "it is found that Til seeds have not been specifically mentioned in the schedule but there is no mentioning of other oil seeds, whether Til seeds will come within the purview of other oil seeds or not, is a matter to be decided during the time of the trial even though Til seeds are not ordinarily edible seeds. But from the schedule it is found that Til Oil come with the purview of edible oil. Different type of seeds that may come within the definition of other oil seeds are matter of evidence and not to be determined at this stage of anticipatory bails herein".

In the writ application, it was stated by the petitioner that mere possession of Til Seeds in the godown of the petitioner could not be an offence under the provisions of the Essential Commodities Act 1955 or under the provisions of the said Control Orders. It was specifically stated that Til seeds were not the properties of the petitioner but were the properties of the co-villagers and neighbours who were affected by flood and for those reasons kept the said Til seeds in the custody of the petitioner'' at the instance of the local Panchayat Authority to avoid total destruction and loss. It was further stated that the petitioner had no manner of control over the said Till seeds excepting for the purpose of proper custody and had no right to sell or dispose of the same.

The case of the "petitioner, in short, is that the Central Government u/s 5 of the Essential Commodities Act 1955 (referred to as the said Act) authorised all State Governments to issue Control Orders as provided u/s 3(i) of the said Act. In exercise of the delegated power, State Government had issued several control orders including West Bengal Declaration of Stocks and Prices Essential Commodities Order 1977, see text (page 3) every producer and importer was required to display conspicuously at a place as near to the entrance of his place of business as possible a list in the Form A indicating the opening stock of each essential commodity held by him on each day. In the Schedule I, appended to this. Control Order, there was no mention of any edible oil seeds. Only edible oils have been mentioned tinder Item No. 8 which reads as follows:

"8 - Edible Oil (i)Mustard Oil, (ii) Groundnut Oil

(iii) Coconut Oil, (iv) Til Oil."

Item No. 9 to the said schedule specifically'' mentioned "Mustard Seeds" but there is no mention of any other seeds or oil seeds in the body of the control order.

Mr. Bikash Ranjan Neogi appearing with Mr. Sabyasachi Mukherjee, learned Advocate appearing on. behalf of the petitioner contended that Til seeds not having been included in the said schedule cannot be said to be an edible oil seed within the meaning of the said Control Order. It was further submitted that unless Til seed is specificlly mentioned in the said Control Order, the same cannot be regarded as in essential commodity within the meaning of clause 2(b) of the said Control Order and consequently the petitioner had no manner of liability and/or responsibility under the said Control Order. It was further submitted that as Til seed was not included in the said schedule to the said control order as essential commodity the petitioner cannot be proceeded with under the Essential Commodities Act for violation of the provisions of the said Control Orders. In this case, the allegation against the petitioner is the violation of para 3 of the said Control Order. The precise allegation was that actual stock was found to be less than the stock than what was recorded in the stock board.

Under the provisions of the West Bengal Pulses Edible Oil Seeds and Edible Oils (Dealers Licensing) Order I978, every dealer carrying on business in edible oil seeds and edible oil, had to take out licence under the said Order for the purpose of running the business. In this Control, edible. Oil has been defined in para 2(c) which means "any oil used for human consumption and includes hydrogenated vegetable oil". Edible Oil seed has not been defined at all. Pulses have been defined in para 2(ii) which means "urd, moong, arahar, masoor, lobia, etc. etc."

It was contended by the learned Advocate appearing on behalf of the petitioner that there was fundamental difference between "edible oil seed" and "oil seed". The word "Edible" means "fit to be taken". "Edible oil seed" does not mean seeds from which edible oil can be extracted, on the other hand, it means an oil seed which is edible as such as an item of food. Cotton seed being not edible as such falls outside the class of edible oil seed" as it is not a food stuff and in this connection, reference was made to the decision of the Supreme Court in the case of Girdharimal Kappur Raj v. Deb Raj Madan Gopal, reported in AIR 1963 SC page 1587 wherein Supreme Court held that cotton seed is an oil seed and free from human consumption, so clearly it is not an oil seed which is edible. It was held by Supreme Court that edible oil seed can never mean a seed from which edible oil seed which is edible as oil seed being a food staff and cotton seed not being edible falls outside the class of edible oil seed. It was submitted by the learned Advocate appearing on behalf of the petitioners relying upon the aforesaid decision of the Supreme Court that Til oil is an edible oil, but Til seed is not an edible oil seed as it is not fit to be taken or consumed straight away as an item of food. It was submitted that there cannot be any punishment or prosecution when apparently the petitioner had not clearly committed any offence in this regard, inasmuch as, Til seed had nowhere been treated or described as edible oil seed in any of the Control Orders. It was submitted that the Respondents have lodged a FIR on a total mis-conception of the provisions of the law in this behalf and all proceedings initiated on the basis of the said FIR must be held to be not maintainable at all.

The admitted position is that the West Bengal Pulses Edible Oil Seeds and Edible Oils (Dealers Licensing) Order 1978 did not expressly provide any definition treating that Til seed "as edible oil seed". On the contrary, the West Bengal Declaration of Stocks and Prices of Essential Commodities Order 1977 provided the definition of the Essential Commodities but Til seed had not been categorically or specifically included within the definition of essential commodities or in the list appened to in the schedule. There edible oils have been defined and mustard seeds were also mentioned. The submissions made by the learned Advocate appearing on behalf of the petitioner relying upon the decision of the Supreme Court mentioned above that edible oil seed can never mean a seed from which only an edible oil can be prepared appears to be reasonable and well-founded. It can and does mean only an oil seed which is edible as oil seed just as in the case of groundnut. When edible oil seeds had not been specified and/or mentioned in the said Control Orders can the Respondents be allowed to lodge a prosecution against the petitioner on the presumption that the seeds from which edible oil could be extracted must be regarded as edible oil seeds. In this connection, reference may be made to a passage from Statutory Interpretation by F.A.R. Bennion wherein at page 302 it was provided that "it is a principle of legal policy that a person should not be penalized except under clear law (in this code called the principle against doubtful penalization). The Court, when considering, in relation to the facts of the instant case, which of the opposing obstructions of the enactment would give effect to the legislative intention, should presume that the legislature intended to observe this principle. It should therefore, strive to avoid adopting a construction which penalizes a person where the legislator''s intention to do so is doubtful or penalizes him in a way which was not made clear." In Maxwel''s Interpretation of Statute, 12th Edition page 2.39-240, it was observed that "the strict construction of penal statutes seems to manifest itself in four ways: the requirement of express language for creating of an offence; in interpreting strictly words setting out the element of offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in initiating on the strict observance of technical provisions concerning criminal procedure and jurisdiction". Whenever it can be argued that an enactment has meaning requiring infliction of deterrent of any kind, the principle against doubtful penalization comes into play. If the detriment is minor the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful. In a case when penalty may be inflicted must show that the words of the statute clearly provided that the action entails punishment. In the instant case, inasmuch as, the provisions of the said two Control Orders were not clear at all on the question whether Til seed is an edible oil seed, in my view, the penalty by Way of inprisonment or fine cannot be presumed. If it was an intention of the legislature and/or authority concerned who promulgated the Orders that Til seed should be treated as edible oil seed, in that event, they should have been provided for in two said Control Orders in clear words itself, so that, persons dealing with such commodity, had a notice that these commodities are coveted by those control orders and failure to observe the provisions of the some would visit penalty and prosecution for violating the provisions of the said Control Orders. The Respondents cannot be allowed to penalize a person unless statute itself is clear and from the language of the statute it was made clear that the person concerned falls within the mischief of the Act. After all, citizen''s liberty guaranteed under Article 21 of the Constitution of India and their right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India could not be allowed to be interfered within such a manner when law is completely silent, the Respondents cannot be allowed to penalize a person by reading words in a statute or by giving interpretation to the statute which leads to some palpable and evident absurdity against all cannons of of interpretation provided in the stature. In my view, the principle against doubtful penalization will come into full play in the instant case and criminal liability could not be imposed upon the petitioner on the basis of the provisions of the said control orders and accordingly, in my view, the prosecution was lodged under total misconception of law and in the facts and circumstances of the case, the Respondents have acted illegally and clearly without jurisdiction and without the authority of law in initiating a proceeding for violation of the provisions of Essential Commodities Act in terms of Section 7(1)(a)(ii) of the Essential Commodities Act 1955 and as such first information report and all actions taken thereunder, must be set aside. In the result, the writ petition succeeds. Hanskhali P.S. Case No. 7 dated 9.9.87 u/s 7(1)(a)(ii) of the Essential Commodities Act 1955 and the Essential Commodity Case no. 36 of 1987 are quashed. The Respondents are also directed to release the Til seeds seized from the petitioner forthwith.

The writ petition succeeds to the extent indicated above.

There will be no order as to costs. Let the similar order be passed in other- two application i.e. re: Samarendra Nath Bhowmik, moved on December 22, 1987 and In re : Sunil Kumar Bhowmik, moved on December 22, 1987 and let all the three more applications be disposed of on the above terms.

If certified copy is applied for, let the same be given expeditiously to the parties.