IMPORTANT POINT
Criminal prosecution initiated under Essential Commodities Act, 1955 is hit by doctrine of circumvention when the prosecution is trying to evade section 6 of the Imports and Exports (Control) Act. 1947.

JUDGMENT

S. N. Phukan, J.-In this petition, the petitioner has impugned the order dated 22.12.82 passed in G.R. Case No.3 of 1981. By the aforesaid order, the learned Chief Judicial Magistrate framed charge against the present petitioner under Section 7 of the Essential Commodities Act, 1955, for short Act of 1955 and section 420, I.P.C. However, two other accused persons against whom charge-sheet was filed were discharged.

2. The petitioner herein filed an application in the prescribed form for allotment of canalised items by the canalising Agencies for allotment of 100 M.T. per annum of 'G.P. Sheets in coils' 30 BWG to 34 BWG in 900 mm. The application form is at Annexure-A. In column 2 (vi) the petitioner gave an undertaking to the effect that he understood that he might be liable to be prosecuted under the provisions of the Imports and Exports (Control) Act, 1947 for short Act of 1947. The canalising Authority namely, Steel Authority of India cleared the application for import of 'G.P. Sheets in coils'. The letter and the licence issued by the said authority are available at Annexure-B to the present petition. The petitioner has approached this Court for setting aside the above order of the learned Chief Judicial Magistrate and also for quashing the entire criminal proceeding.

3. Mr. Bhattacharyya, learned counsel for the petitioner has urged that as only galvanised sheets both plains as well as corrugated only have been included in the first schedule to the Iron and Steel (Control) Order, 1956 framed under the Act of ] 955 and not galvanised sheets in coils forms the present prosecution is not maintainable. Mr. Bhattacharyya has further urged that reading the application for allotment submitted by the present petitioner and also the alltoment order by the Steel Authority of India Ltd., the present prosecution under the Act of 1955 is hit by Doctrine of Circumvention and as such the entire proceeding is illegal.

4. The Iron and Steel (Control) Order, 1956 is an exhaustive one and entry 8 runs as follows:

"(8). Galvanisedjcoated sheets both plain as well as corrugated ".

I have perused the said schedule and I find that in respect of Entry No. (7), the law makers have used the words coils sheets plates and universal plates. Thus whenever the law makers wanted to use the word coils they specifically provided in the schedule. Under the said order Controller i.e. the Iron and Steel Controller appointed by the Central Government has wide powers under the said Order. Mrs. Deka, learned Public Prosecutor urged that there is no difference between the galvanised plain sheets in coils form and galvanised plain sheets in plain and as well as corrugated form. As I have indicated that whenever it was necessary to provide such item in coils form, it was done so in the first schedule to the said Control Order and as such I am unable to accept the contention of Mrs. Deka. That apart Mr. Bhattacharyya has urged that G.P. Sheets corm gated do not include coils and in support, learned counsel has drawn my attention to the import policy of the Government of India issued from year to year more particularly for the year ]978-79. I have perused the relevant portion of the said police and I find that contention of Mr. Bhattacharyya has considerable force.

5. I have also perused the statements of witnesses recorded by the Investigating Agency and I find that neither the concerned officer of the Steel Authority of India Ltd. nor the -Controller of Iron and Steel was examined. They would have been the best persons to support the case of the prosecution. It was necessary to examine the concerned officers of the Steel Authority and the Controller of Iron Steel as the allegations against the petitioner is that the G.P. Sheets in coils forms allotted to the petitioner by the said authority were not used for the purposes for which these items were allotted I am therefore, constrained to hold that materials on record did not disclose a prima facie case aga