State of West Bengal vs Samir Sengupta

Malay Kumar Basu, J.—This is a revisional application directed against the order dated September 17, 1996, passed by Sri M.L. Das Bakshi, learned Judge, Special Court of E.C. Act, the City Civil and Sessions Court, Calcutta in G.R. Case No. 1623 of 1994 arising out of Hasting P.S. Case No. 165 dated July 2, 1994 under Sections 7 (i) (a) (ii), 8 Essential Commodities Act.

The relevant facts leading to this revision are as follows. The Enforcement Branch officials raided the kerosenes oil godown belonging to M/s. S.P. Singh & Brothers situated at strand Road, Calcutta at about 01.30 hours in the night and in course of such search they found the accused persons, who are the O.P. Nos. 1 to 4 of the revisional application, to be indulging in the act of adulterating kerosene oil in ten filed up barrels by mixing Ammonium Nitrate powder and other chemicals therewith with the motive of transferring blue dyed kerosene oil into white one in order to dispose off in open market at higher prices and the other accused persons (O.P. Nos. 5 to 10) were found in the act of decanting from the stationery kerosene oil tanker or otherwise. The raiding party under the supervision of the D.C., E.B. Act seized ten polythine drums filled with such kerosene oil and other materials including stock and rate board dated June 25, 1994 and arrested the abovementioned accused persons. They took up investigation and thereafter submitted charge-sheet against the accused O.P. u/s 7 (i) (a) (ii) read with Section 8 of the Essential Commodities Act for their not maintaining stock and rate board properly and for adulterating the kerosene oil for and for doing clandestine business.

The case was taken up for summary trial by the Learned Sessions Judge and while the matter was taken up by that Court for recording the statements of the accused persons u/s 251 Code of Criminal Procedure, the defence filed a petition for an order discharging the accused persons on the ground that there were absolutely no materials in support of the prosecution allegations to enable the Court to examine the accused u/s 251 Code of Criminal Procedure.

The Court after hearing both sides and considering the charge-sheet came to find substance in the defence contention and held that the materials on record were not enough to prima facie establish the offence alleged against the accused persons and accordingly he discharged them. Incoming to such a conclusion, the Court below mainly relied on the report of the Chemical Expert that none of the samples sent for chemical examination contained any foreign substance which being mixed with the kerosene oil would turn the blue dyed kerosene into white. He further found that no report had been received regarding the samples which were sent to Haldia Oil Refinery and other laboratories for some special tests in order to ascertain the correctness of the allegations levelled against the accused. It was also the reasoning of the learned Judge below that the allegation that the accused persons had failed to produce the relevant document before the raiding party violating thereby the provisions of para. 15(c) of the West Bengal Kerosene Centrol Order 1968 had not been substantiated in view of the fact that the raid had been held at the dead hours of night and the raiding party had not issued any written notice to the employees of the dealer for production of relevant registers when issue of such written notice was an imperative requirement of the law.

Being aggrieved by this order of the Court below, the State of West Bengal through the learned public Prosecutor, High Court has preferred this revisional application u/s 401 read with Section 482 of the Code of Criminal Procedure.

The revisional application is accompanied by a petition u/s 5 of the Limitation Act for condonation of delay for a period of 953 days in the matter of filing of this revisional application. This petition for condonation of delay has been contested by the O. Ps. on the ground that the applicant State of West Bengal has failed to explain the delay for so many days. Therefore, the question that falls for determination before the revisional application is adjudicated upon on merits is whether the above delay is condonable. In the petition u/s 5 of the Limitation Act, however, in fact there has been absolutely no explanation of the delay given, although, vaguely, it has been stated that the Petitioner has all along been moving with diligenceated the delay was not at all intentional.

In para. 12 of the petition it is stated that the impugned judgment was delivered September 7, 1996 and the Xerox copy of the judgment was handed over to the learned Advocate, Mr. Sushil Kr. Mahato, on June 16, 1999 for filing the revisional application and Mr. Mahato drew up the petition for revision on June 16, 1999 but due to laches of the employees of the Government departments, the delay of 953 days took place under circumstances beyond the control of the Petitioner.

It goes without saying that such an excuse connot be accepted simply because the Petitioner is the State Government. It is the established principle of the law of limitation that all litigants including the Government employees should be accorded the same treatment and the law is to be administered in an even handed manner. Learned Advocate appearing on behalf of the Petitioner State has cited in support of his contention a decision reported in Collector Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, . In this judgment what has been held by Their Lordships goes counter to the contention on behalf of the Petitioner.

The Apex Court has observed that there is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay, because on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos, delay on part of the State is less difficult to understand though more difficult to approve . With this observation the Hon''ble Court also has remarked that the approach of the Court must be to do even handed justice on merits in preference to the approach which scuttles decision on merits.

In the above ruling the apex court has laid down certain principles of which one is that refusing to condone delay can result in a meritorious matter being thrown out of the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. The other principle unciated is that "every day�s delay must br explained" does not mean that a pedantic approach should be made and the doctrine must be applied in a rational, commonsense, pragmatic manner. Cause of substantial justice deserves to be preferred to technical considerations.

Nobody is disputing this position of law. It should not be forgotten that for the application of this noble legal principle one basic precondition must be fulfilled, viz., that if must be a non-deliberate delay. Here the Petitioner is totally silent as to what happened during the first vital three years after the passing of the impugned order. Even there is no some balance of explanation regarding this period.

Not a single word has been used to explain away such a long period of inaction save and except the phrase, "laches on the part of the employees of the Government". Laches on the part of the Govt, means laches of none else than the Petitioner. The term "laches" is a self derogatory one and does not speak favorably for the Petitioner in so far as the question of satisfactory explanation is concerned. In the face of such coinage of term and in the absence of any explanation whatsoever it is difficult to hold that the delay was unintentional.

Thus, it cannot but be said that in this case there has been given by the Petitioner-State any explanation, far less a reasonable or satisfactory one, for condonation of the delay for such a massive 953 days.

In a recent Division Bench judgment reported in P.K. Ramachandran v. State of Kerala A.I. Ft. 1998 S.C. 2278 the Supreme Court had held that law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.

In view of the foregoing reasons, any exercise of the discretion in favour of the Petitioner-State regarding its prayer for condonation of delay will be neither proper, nor judicious. In the premises the petition u/s 5 Limitation Act be rejected. Consequently the Revisional Application cannot be admitted for hearing on merits and be summarily dismissed.