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1971 DIGILAW 44 (PAT)

Wasi Ahmad Parwana v. State of Bihar

1971-03-28

B.S.SINHA

body1971
JUDGMENT : B.S. Sinha, J. 1. The prayer of the petitioners in this application is to quash the entire criminal prosecution instituted against them under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred to as the Act) in Case No. C (C) 69/74 pending in the court of the Subdivisional Judicial Magistrate, Araria within the district of Purnea. Wasi Ahmad Parwana, petitioner no. 1, is employed as Manager by the Bihar State Cooperative Marketing Union Ltd. at its Co-operative Marketing Agricoal Depot at Araria and Kamrujamma, petitioner No. 2, employed as a night-guard. This Co-operative Marketing Agricoal Depot has a certificate of registration under the provision of the Fertilizer (Control) ORDER :, 1957 (hereinafter to be referred to as the Fertilizer ORDER :). 2. On 30.1.1974, the premises of the aforesaid depot was inspected by the Assistant District Supply Officer of Araria, who verified the stock and all other books of accounts. Later on, petitioner no. 1 was again asked to produce all his books of accounts for proper verification by an ORDER :dated 2.2.1974. Thereafter, the petitioner was served with a show cause asking him to explain as to why he should not be prosecuted under section 7 of the Act to which he showed cause in detail 3. It appears that on 4.10.1974, the Assistant District Supply Officer filed a complaint petition before the Subdivisional Judicial Magistrate, Araria, on a consideration of which learned Magistrate took cognizance under section 7 of the Act against the petitioners by an ORDER :dated 8.10.1974. 4. It has been urged on behalf of the petitioners that the entire criminal proceeding initiated against the petitioners should be quashed as the complaint filed against them discloses no offence. Mr. Bharuka has pointed out that the gravaman of accusations levelled against the petitioners in the complaint petition is that they did not honour the permits issued by the Block Development Officer, Jokihat for supply of certain fertilizer and that was the reason for instituting the case. It has been urged that under the provision of the Fertilizer ORDER :, the petitioners were not bound to honour such permits. 5. Copy of the complaint petition on which cognizance has been taken has been appended to the application and has been marked as Annexure 2. It has been urged that under the provision of the Fertilizer ORDER :, the petitioners were not bound to honour such permits. 5. Copy of the complaint petition on which cognizance has been taken has been appended to the application and has been marked as Annexure 2. In paragraph 7 of this complaint petition, it is stated that on verification the following irregularities and illegality committed by the petitioners were found : (i) Stock and price of fertilizers and other informations as required were not found exhibited on the notice board as per direction of the authority. (ii) Although there was sufficient stock of urea, supply of the same was refused on the permit of the Block Development Officer, Jokihat. (iii) Directions issued by the Deputy Director of Agricoal, Purnea that the fertilizers should be sold only against the permits issued by the Block Development Officer and Project Executive Officer has been contravened. (iv) During the raid, the petitioners were asked to produce documents relating to stock, sale, etc. but the petitioners failed to produce them before the raiding authority. (v) The petitioners could not show satisfactory documents regarding sale and distribution of 300 bags of urea received by them; and (vi) Although 300 bags of urea were received by the petitioners in December, 1973 and 270 bags in January, 1974, the arrival report and other returns were not submitted to the authority in time. By reference to these allegations, it is clear that not one of these could be the responsibility and function of petitioner no. 2, who has described himself as a night-guard in the depot which fact has not been controverted or disputed before me. All that has been said is that in the complaint petition he has been described as an employee of the said depot. There is, to my mind, no contradiction between the two statement. A night-guard would be an employee of the depot. In such circumstance, I am of the view that the complaint petition discloses no offence which could possibly have been committed by petitioner no. 2. Accordingly the cognizance taken and the proceeding initiated against petitioner no. 2 are quashed and set aside. 6. With regard to petitioner no. 1, it will be seen that charges nos. In such circumstance, I am of the view that the complaint petition discloses no offence which could possibly have been committed by petitioner no. 2. Accordingly the cognizance taken and the proceeding initiated against petitioner no. 2 are quashed and set aside. 6. With regard to petitioner no. 1, it will be seen that charges nos. (ii) and (iii), as stated by me above, relate to the fact that the petitioner had violated an instruction of the Deputy Director of Agricoal and had not honoured the permit issued for the sale of urea. In a number of decisions, it has been pointed out by this Court, that such executive directions under the Fertilizer ORDER :is not permissible and no one who disregards such direction can be said to have committed an offence under the Fertilizer ORDER :. In this context, reference may be made to the decisions in C.W.J.C. No. 575 of 1974 disposed of on 16.10.1974, Cr. W.J.C. No. 95 of 1974 disposed of on 2.9.1976 and Criminal Misc. No. 123 of 1975 disposed of on 11.8.1977. Accordingly, petitioner no. 1 cannot be prosecuted for those two charges levelled in the complaint petition. With regard to charges nos. (i), (iv) and (v) aforesaid, there was no provision under the Fertilizer ORDER :at the material time which directed that a dealer in fertilizer shall exhibit the list of prices as also the stock of fertilizer as is in his stock. At that time, there was nothing in the Fertilizer ORDER :to show that a dealer had to maintain documents relating to the stock, sale, etc. of fertilizer. Indeed a dealer can be called upon to produce the specified documents before the inspector. But at that time, there was nothing in the Fertilizer ORDER :to show that any such documents were to be maintained by a dealer for inspection even by an inspector. In this context, reference may be made to clause 21 of the Fertilizer ORDER :where there is a provision to maintain book of accounts and records and to submit returns or statement in such forms and containing such forms and containing such informations relating to business which may from time to time be specified by an ORDER :in writing to be issued by the Controller. It has not been pointed out to me that there was any such ORDER :issued by the Controller which had been violated by the petitioner. I am, therefore, of the view that petitioner no. 1 could not be charged of an offence under section 7 of the Act with regard to charges nos. (i), (iv) and (v) enumerated by me above. 7. However, charge no. vi stated in the complaint, still remains to be considered. In that it has been stated that although the petitioner had been supplied 300 hags of urea in December, 1973 and 270 in. January, 1971, arrival report or other returns were not submitted to the authority in time. Again under the Fertilizer ORDER :, or in the certificate of registration to carry on business of fertilizer, there is nothing to impose an obligation upon a dealer that as soon as he receives certain fertilizer he must submit arrival report to any authority. But paragraph 5 of the certificate of registration provides that by the 5th of every month the dealer must submit to the registering authority with a copy of the Block Development Officer or such other officer as the State Government may notify in whose jurisdiction the place of business is situate, showing the opening stock, receipt, sale and closing stock of fertilizer in the preceding month. By reference to the last charge enumerated by me above, it is quite possible at this stage to in-terprete that the report as contemplated under paragraph 5 of the certificate of registration had not been submitted by the petitioner with regard to the months of December, 1973 and January, 1974. In that view of the matter and particularly because petitioner no. 1 is also a semi-Government employee, I am inclined to take the view that before the learned Subdivisional Judicial Magistrate proceeds further in the matter, he will try to satisfy himself whether on the materials there was anything to indicate that petitioner no. 1 had not complied with the terms of paragraph 5 of the certificate of registration with regard to the months of December, 1973 and January, 1974. If the report for those two months had been submitted it will automatically follow that there is no case against the petitioner. If, however, such report had not been submitted then the cognizance taken against the petitioner cannot be set aside. If the report for those two months had been submitted it will automatically follow that there is no case against the petitioner. If, however, such report had not been submitted then the cognizance taken against the petitioner cannot be set aside. With the above observations and directions, this application is disposed of.