Hiralal Gupta Vs The State

R.K. Sharma, J.@mdashThis Rule is at the instance of Hiron Lai Gupta whose grievance is that he owns a grocery shop at Serampore Hattola and carries on business in various goods including pulses, dalda, sugar etc. The petitioner runs the said grocery shop on obtaining trade licence under the Bengal Municipal Act from the Serampore Municipality and has also obtained licence for selling edible oils etc. under paragraph 6 (1) of the West Bengal Pulses Edible Oil Seeds and Edible Oils (Dealer Licencing Order 1978) and the said licence has been renewed from time to time and on the date concerned the said licence was valid. The petitioner states under the Shops & Establishment Act he was required to show his grocery shop closed for 1 days in a week and the petitioner elected to close his grocery shop every week for a half day on Wednesdays from 2-30 p.m. to 8 p.m. and for full day on Thursdays in accordance with the requirement of the Shop & Establishment Act. A copy of the said notice given by him regarding the weekly closure is annexed to the petition.

2. The petitioner states that on 12. 6. 80, the Sub-Inspector Ganesh Majumder, District Enforcement Office, Serampore, along with District Enforcement Officers of Birbhum raided the godown of the petitioner at about 7 a.m. in the morning and sent a message to the petitioner at his residence to attend search and seizure of his shop and godown. On receiving the message the petitioner went and opened the shop and godown under the instruction of the aforesaid Sub-Inspector -- Ganesh Mazumder although on 12. 6. 80 the shop was closed being a Thursday for the full day under the Shop & Establishment Act. Thereafter the Enforcement Officers seized Dalda, Khesari, Moosurdal, chola, sugar and motor without any physical weighment on the basis of the assumed weight of the bags and the tins and noted alleged discrepancy. The petitioner requested the enforcement officer not to seize the goods on the basis of the rate board displayed on 11. 6. 80 wherein the opening of the stocks on 11. 6. 80 were mentioned and the board was due to be written on 13. 6. 80 on reopening. The officers did not consider his request and the explanation that on 11. 6. 80 after the opening of the stock the goods had been sold and there were authentic documents to support the sales and purchase and in any event the stock registers were made uptodate and requested the said Enforcement Officer to go through the books and accounts but the Enforcement Officers seized the rate board only and the stocks of various goods stated above and the seized goods were kept in the Zimbanama of one Kanta Prasad of Rampurhat.

3. Thereafter a case was started against the petitioner u/s 7 (i) (a) (ii) of Act 1955. The petitioner was arrested in connection with the said case and was released on bail with direction to appear before the court. The bail was granted by the learned Sessions Judge, Suri.

4. Appearing on behalf of the petitioner Mr. Ghose submits that in view of the fact that 12. 6. 1980, was a Thursday and a closure day writing up of the Board on 12. 6. 80 was not necessary and there is nothing in the complaint to show that at the time the seizure was effected the shop was open and business had been transacted from that shop and godown. Furthermore, physical weighment was not properly done and the seizure was made not in accordance with law. In view of the facts the learned advocate submits that proceedings should be quashed,

5. Mr. Ghosal appearing on behalf of the State submits that in the complaint evidence is not mentioned and if the evidence is given regarding the fact it will be proved that the petitioner was engaged in commercial business on that date. He submits that date for framing of charge has been fixed and it is too early to come to this court with a prayer to quash the proceedings.

6. Mr. Ghosh who appears for the petitioner places reliance upon two cases, one is reported in 1982 Cr. L.J. 934 (Narendra Kishore Chand v. State of Orissa). That was the case under Essential Commodities Act (10 of 1955), Section 7 concerning declaration of the stock and price of Essential commodities and display of Stock list or price list by Shop Keeper. In connection with that case it was held by the learned single judge of Orissa High Court that when the shop remains closed there can be no relevance or jurisdiction for display of the price list and the stock position. Mr. Ghosh appearing for the petitioner contends that as the shop of the petitioner remains closed on Thursday on 12th June, 1980, it was not necessary for him to display the stock board or price list, therefore he is not liable to be prosecuted on that ground. The next case relied was reported in Nathmal Vs. The State of Rajasthan and Others, . It was held that mere recovery of quantities of articles or goods from the premises of the accused without there being any allegation of violation of any law other than display of price list and stock position would not be sufficient to lead to the conclusion that the petitioner had acted in the manner prejudicial to the maintenance of supplies of Essential Commodities. Relying upon this case he submits that there is no reasonable ground for proceeding against the petitioner. I have considered the facts and circumstances of the case. It is not disputed that 12. 6. 1980 was a Thursday and that day was chosen as a closure day by the petitioner under the Shop and Establishment Act. Therefore he was not transacting any business. In the circumstances if he did not display stock as on that date it cannot be held against him. Moreover the allegation that the weighment was net physically done but was assumed on the basis of the capacity of bags and tins appears to be correct because everywhere in the chargesheet weighment is described as "approximately". Therefore in my opinion, it would be harassment only to the petitioner to make him stand trial on the basis of such materials. Therefore this application is allowed. This Rule is made absolute. Order passed by the court below is set aside and the proceeding is quashed.