Shashi Saha vs State of West Bengal and others

Indira Banerjee and Sahidullah Munshi, JJ.—The defects, noted by the Additional Stamp Reporter, are inconsequential and the same may be ignored.

This appeal is against a judgment and order dated 22nd July, 2015 passed by the learned Single Judge disposing of the writ petition filed by the appellant writ petitioner with the observation that factual issues as to whether the business of the appellant writ petitioner was an independent business or connected with the MPS Food Products Group of Companies, could not be decided by the Writ Court. The petitioner was, however, given the liberty to approach the learned Magistrate for ventilating his grievances and for seeking necessary relief in accordance with law.

It is true that complicated, hotly disputed factual issues are not usually decided upon affidavits in writ proceedings. It is, however, equally true that the court may determine jurisdictional facts to determine whether the authorities concerned at all had jurisdiction to take the action impugned. In this case, it is the case of the writ petitioner that the respondent police authorities have arbitrarily and illegally locked up the godown of the appellant writ petitioner, which is part of his residential premises.

It is well settled that the police authorities have no jurisdiction whatsoever to seal private property unless circumstances exist, which authorise such action under the criminal laws of the country.

The respondent police authorities have not been able to show the source of their power for putting up padlock on a private godown. Pursuant to an earlier order passed by this Division Bench, the godown was inspected. It is not in dispute that no products of MPS Group of Companies was found at the godown.

Mr. Amitesh Banerjee, learned Counsel, appearing on behalf of the State, submits that the appellant writ petitioner has business relationship with the MPS Group of Companies.

It appears that the appellant writ petitioner was, at some point of time, possibly in the years 2012, 2013 and 2014, a distributor/dealer of products of the MPS Group of Companies.

If it were necessary to seize the goods of MPS Group of Companies and such goods had been kept stacked in the godown, sealing the godown may have been permissible in law. However, the Affidavit-in-Opposition of the police authorities indicates that no goods of MPS Group of Companies were found at the godown.

In the Affidavit-in-Opposition filed on behalf of the State respondents to the stay application filed by the appellant writ petitioner, the State respondents have referred to an order dated 30th March, 2015 passed by a Single Bench of this Court in a writ petition being W.P. No.4059(W) of 2015 (Bhaskar Das Gupta and others v. Union of India and others). The operative part of the order is set out herein below for convenience:

"Heard parties. Since there is virtually no answer as to who had issued the certificates, in the interest of justice, I direct the Director General of Police, West Bengal, Kolkata and the Commissioner of Police, Bidhannagar Police Commissionerate, Kolkata, the respondent nos.8 and 11 to seal the offices of the respondent no.16 at Lake Town, Kolkata and Jhargram, West Midnapore, as mentioned in page 15 of the writ petition and also the other offices in the State within 24 hours from the date of receiving a copy of the order downloaded from the official server of the High Court. After the office is sealed, SEBI, CBI, the State authorities and the Enforcement Department shall make an inventory of the documents and/or records. Since it appears from the submission of the learned senior advocates for the SEBI, that in spite of the orders of attachment, bank accounts have been opened and operated and as the learned senior advocate for the respondent no.16 is clueless about the issuance of certificates and consequently where the money has been deposited, the Investigating authorities, be it SEBI, CBI, Enforcement Department or State authorities shall attach the bank accounts forthwith in the greater interest of the depositors. The respondent no.16 within 48 hours from the date of communication of this order shall intimate each of the respondent authorities whether they have opened fresh bank accounts and if the answer is in the affirmative, the said investigating agencies shall also take steps for attachment of the said accounts forthwith. It is made clear that this order is passed in the interest of justice and the point of maintainability shall be heard on the next date of hearing. So far as the issue of attachment of the properties is concerned, since it is submitted on behalf of the respondent no.16 that a proceeding is pending before the High Court and an order of restraint has been passed, no order is passed to that effect.

Matter to appear as "Listed Motion" in the Combined Monthly List of June, 2015."

From the order, it is patently clear that the police authorities have been directed to seal the offices of the respondent no.16 at Lake Town, Kolkata, Jhargram, West Midnapore and other offices in the State within 48 hours from the date of receiving a copy of the order of the Single Bench. Directions have been given to SEBI, CBI and other investigating authorities as well as officers of the Enforcement Directorate to make inventories of the documents and all records. It is not understood how the aforesaid order of the learned Single Bench authorizes the sealing of a private godown of a dealer and/or distributor of MPS Group of Companies, even assuming that the dealership/distributorship of the writ petitioner appellant has not finally been terminated.

Mr. Mukherjee, learned Counsel, appearing on behalf of the appellant writ petitioner, submits on instructions that the godown, which has been sealed, is part of ancestral property of the appellant writ petitioner acquired in the year 1981. Construction of the building was made in the year 1984, that is, long before the MPS Group of Companies came into existence.

It is reiterated at the cost of repetition that the police authorities admit that there were no goods, records etc. of MPS or any group companies of MPS found at the godown in question. The police authorities did not initiate any investigation on their own. They proceeded on the basis of the said order dated 30th March, 2015 of the learned Single Bench, which has entirely been misconstrued, as the said order does not authorise the sealing of godowns of dealers and/or distributors.

This Court also cannot but take note of the admitted position that the appellant writ petitioner carries out grocery business and as a grocer, he is likely to deal with different food products being produced by different companies, including MPS Group, at some point of time or the other. Dealing in such food products cannot, in the absence of anything more, entail the drastic action of sealing of a godown, which, in effect, stops his business. The authorities have apparently, rather admittedly, acted on the basis of suspicion.

We dispose of the appeal and the connected applications by directing the respondent authorities to forthwith remove the padlock on the godown in question and in any case, within three working days from the date of communication of this order.

A contempt application being CPAN 197 of 2016 has been filed by the appellant writ petitioner. The contempt application is not pressed by the appellant writ petitioner in view of this final order. The said application is treated as on the day''s list and is disposed of without any order.

Let the records of the contempt application be tagged with the records of this appeal.

Urgent photostat certified copies of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.