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CALCUTTA HIGH COURT
N. C. Talukda, J.
PAWAN KUMAR GUPTA
VERSUS
THE STATE OF WEST BENGAL
Criminal Revn. Case No. 803 of 1972,
Decided On : February 1, 1973.
CRIMINAL PROCEDURE CODE - SECTION 87 (1) AND (2) - PUBLICATION OF PROCLAMATION - REQUIREMENTS - NON-COMPLIANCE - EFFECT - SECTION 88 (6-A) - CLAIM PETITION - DISMISSAL - REVISION - MAINTAINABILITY.
Fact of the Case:
The petitioner, Pawan Kumar Gupta, filed a claim petition under Section 88 (6-A) of the Criminal Procedure Code (CrPC) for the release of a shop from attachment. The shop was attached in connection with a case filed under Section 16 (1) (a) (i) read with Section 7 (1) of the Prevention of Food Adulteration Act, 1954, against one Kailash Chandra Agarwalla, the proprietor of the shop. The petitioner claimed that he was a bona fide purchaser for value of the stock-in-trade lying in the shop and had been running the business at that place since 10-3-1972. The Senior Municipal Magistrate, Calcutta, rejected the petitioner's claim. The petitioner challenged the order of the Magistrate by filing a revision petition in the High Court.
Finding of the Court:
The High Court held that the order of the Magistrate was vitiated due to non-compliance with the procedure established by law. The Court found that the Magistrate had not reached the stage of satisfaction required under Section 87 (1) of the CrPC to issue a proclamation and attachment against the accused. The Court also found that there was a non-conformance to the provisions of Section 87 (2) of the CrPC, which sets out the requirements for the publication of a proclamation. The Court further held that the presumption under Section 87 (3) of the CrPC, which states that a statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of the section have been complied with, does not override the requirements of the Indian Evidence Act and does not make the proclamation evidence that the warrants had been issued.
Issues: 1. Whether there was a non-compliance with the procedure established by law in the issuance of the proclamation and attachment against the accused? 2. Whether the order of the Magistrate rejecting the petitioner's claim under Section 88 (6-A) of the CrPC was vitiated due to the non-compliance with the procedure? 3. Whether the revision petition filed by the petitioner was maintainable in light of the provisions of Section 88 (6-D) of the CrPC?
Ratio Decidendi: 1. The Court held that there was a non-compliance with the procedure established by law in the issuance of the proclamation and attachment against the accused. The Court found that the Magistrate had not reached the stage of satisfaction required under Section 87 (1) of the CrPC to issue a proclamation and attachment against the accused. The Court also found that there was a non-conformance to the provisions of Section 87 (2) of the CrPC, which sets out the requirements for the publication of a proclamation. 2. The Court held that the order of the Magistrate rejecting the petitioner's claim under Section 88 (6-A) of the CrPC was vitiated due to the non-compliance with the procedure. The Court held that the orders following such a non-conformance, on and from 7-7-1972 including the ultimate order dated 6-12-1972 passed under S. 88 (6-A), Criminal P.C. therefore stand vitiated. 3. The Court held that the revision petition filed by the petitioner was maintainable in light of the provisions of Section 88 (6-D) of the CrPC. The Court held that the provisions under sub-section (6-D) provide only an alternative remedy and do not lay down any bar to the exercise of the revisional jurisdiction of the High Court, or the exercise of its inherent jurisdiction.
Final Decision: The High Court made the revision petition absolute, set aside all the orders passed on and from 7-7-1972 based on an apparent non-conformance to the procedure established by law including the order dated 6-12-1972 rejecting the claim of the petitioner under Section 88 (6-A), CrPC passed by the Senior Municipal Magistrate, Calcutta, and directed that the case shall go back to the Court below for being disposed of in accordance with law and expeditiously from the stage reached on 7-7-1972 by some other learned Magistrate, in the light of the observations made above and in conformance to the procedure enjoined the Criminal P.C.
This Rule is at the instance of the claimant-petitioner, Pawan Kumar Gupta, being directed against an order dated 6-12-1972 passed by Shri L. N. Roy, Senior Municipal Magistrate, Calcutta, in Misc., Case No. 44 of 1972, rejecting the claim of the petitioner under Section 88 (6-A), Criminal P.C.
2. The facts relevant for appreciating the points raised can be put in a short compass. A complaint was filed by a Food Inspector of the Corporation of Calcutta before the learned Senior Municipal Magistrate, Calcutta under Section 16 (1) (a) (i) read with Section 7 (1) of the Prevention of Food Adulteration Act, 1954, against one Kailash Chandra Agarwalla, the proprietor of Kailash Stores at 2-A Deshapriya Park Road, Calcutta and also one Gopal Agarwalla described as the person-in-charge of the local affairs of the business and also the seller. Gopal appeared in the case but Kailash could not be apprehended. The learned Magistrate found that the police neglected in executing the writ of proclamation and attachment. Ultimately the shop viz. the Kailash Store was seized and sealed on the strength of the writ of attachment issued on 24-11-1972. The writ of proclamation was also executed at about the same time. The claimant-petitioner, Pawan Kumar Gupta, filed an application before the Senior Municipal Magistrate for the release of the shop from attachment on the ground amongst others that he is a bona fide purchaser for value of the stock-in-trade lying in the shop from attachment on the ground amongst others that he is a bona fide purchaser for value of the stock-in-trade lying in the shop and has been running the business at that place since 10-3-1972. It was further averred that he had also acquired considerable quantities of other articles from different parties and the said articles belonged to him entirely. The verbal agreement between Kailash Chandra Agarwalla and the claimant was ratified by an agreement executed on 2-9-1972 and the later has been paying rent to the landlord in respect of the shop. On 24-11-1972 the police sealed the shop room in the absence of the claimant petitioner and without making any in-ventory, seized quite a considerable stock-in-trade stated to be worth over Rs. 10,000/- lying in the shop at the time. On enquiries he came to know about the case under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 as having been started against the aforesaid Kailash Chandra Agarwalla and another and he further came to know that when the said accused No. 1 failed to appear therein, a warrant of arrest was issued as also a proclamation of attachment, pursuant whereto the police had sealed the shop room with the stock-in-trade belonging to the petitioner. Accordingly an application was filed on 27-11-1972 before the learned magistrate for a recall of the order of seizure of the goods and for breaking open the seal and in course of the enquiry that followed, the petitioner examined two witnesses and several documents were proved. The learned Senior Municipal Magistrate, however, by his order dated 6-12-1972 rejected the prayer of the petitioner. This order has been impugned and forms the subject-matter of the present Rule.
3. Mr. Ajit Kumar Dutta, Advocate (with M/s. Dilip Kumar Dutta, Kanahailal Kondoi and Sovendu Sekhar Roy Advocates) appeared in support of the Rule; while Mr. Arun Kumar Mukherjee, Advocate, appearing on behalf of the State, opposed the Rule. The contention raised by Mr. Dutta is of two dimensions, viz., (1) that there has been a non-conformance to the procedure established by law, vitiating all the orders on and from 7-7-1972 including the ultimate order passed on 6-12-1972 under Section 88 (6-A) and (2) that on merits also the impugned order dated the 6th December, 1972 is unwarranted, untenable and uncalled for Mr. Arun Kumar Mukherjee appearing on behalf of the State joined issue. He submitted that has been no non-conformance to any procedure established by law, as alleged
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