JUDGMENT : S. Anwar Ahmad & B. D. Singh, JJ. Petitioner Ramdeo Burnwal was found to have contravened the terms and conditions of the Bihar Food-grams Dealers' Licensing ORDER :, 1967, and as such he has been held to have committed an offence under Sections 7 and 9 of the Essential Commodities Act. He has accordingly been sentenced under Section 7 of the Act to pay a fine of Rs.1500/., in default, to undergo rigorous imprisonment for three months; and under Section 9 of the Act to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month. A further ORDER :for forfeiture of the excess stock of 25 quintals 72 kilograms and 600 grams has been passed under Section 7(i)(b) of the Act. 2. According to the prosecution the petitioner is a retail foodgrains licensee holding Licence No. 92/66 and the name of his firm is Baldeo Lall Gobind Prasad. On the 1st of April, 1967, some time in the evening, the Assistant District Supply Officer, P. K. Das (P.W. 1), raided the business premises of the petitioner and found discrepancies in the actual stock and the stock as entered in the register. The stock register was checked and compared with the cash memos of the stock sold. The Assistant District Supply Officer (P. W. 1) found 25 quintals 72 kilograms and 600 grams of different kinds of foodgrains unaccounted for and in excess of the stock register. He also found 25 quintals 77 kilograms and 100 grams of different kinds of foodgrains less from the opening balance shown in the stock register. P. W. 1 submitted a report (Exhibit 3) to the Sub-divisional Officer, on the basis of which the prosecution against the petitioner was started. In course of checking by the Assistant District Supply Officer two volumes of stock registers (Exhibits I and II), cash memos (Exhibits III and IV) were seized from the premises of the petitioner. 3. The defence of the petitioner was that there was no discrepancy in the stock. His further defence, as it appears from his written statement, was that the discrepancy between the balance shown in the register and the actual stock was due to the fact that the articles received on 1.4.67 had not been entered in the register as he was not bound to do so under the terms of the licence (vide Form C). His further defence, as it appears from his written statement, was that the discrepancy between the balance shown in the register and the actual stock was due to the fact that the articles received on 1.4.67 had not been entered in the register as he was not bound to do so under the terms of the licence (vide Form C). The shortage was due to khudra (retail) sale of small items by the petitioner as he was a retail shopkeeper and he was not bound to issue receipts for sale of less than Rs.5/• for one kind of foodgrain and up to Rs.10/- if more than one kind of foodgrains were sold. It was also pleaded that the premises of the petitioner was checked before the close of business-hours and as such the relevant entries could not be made till then. 4. It is admitted before us that there was no difference in between the closing balance of 31.3.67 and the opening balance of 1.4.67 on which day the premises of the petitioner was raided and stocks were checked. Moreover, it is not a part of the prosecution case. The petitioner has been held guilty on account of the fact that an excess stock was found in his possession in respect of certain foodgrains as also there was some shortage in respect of certain other foodgrains. Admittedly, on the prosecution case, the shortage and excess of the foodgrains had been calculated on the basis of opening balance as shown in the register on 1.4.67. The petitioner being a retail dealer, the terms of his licence (Form C) was contained in Paragraph 3 of it, so far relevant, run as follows: 3. "(i) The licencee shall, except when specially exempted by the State Government or by the licensing authority in this behalf, maintain a register of daily accounts for each of the food• grains mentioned in Paragraph 1 showing correctly, (a) opening stock on each day; (b) the quantities received on each day showing the place from where and the source from which received; (c) the quantities delivered or otherwise removed on each I' day showing the places of destination; and (d) the closing stock on each day. (ii) The licensee shall complete his accounts for each day on the day to which they relate, unless prevented by reasonable cause, the burden of proving which shall be upon him. (ii) The licensee shall complete his accounts for each day on the day to which they relate, unless prevented by reasonable cause, the burden of proving which shall be upon him. X x x x x x Under Paragraph 2(i)(b) of the licence the licencee unless specially exempted by the State Government has to maintain a register of daily accounts for each of the foodgrains showing correctly the stock of each day; the quantities received on each day and the source from which received. Under Paragraph 3(ii) the accounts have to be completed on the day to which they relate, unless prevented by a reasonable cause. If Paragraph 3(ii) of Form C is read along with condition (b) of Paragraph 3(i) of Form B relating to wholesale dealers, which runs as follows; “(b) the quantities received on each day as and when received, showing the place from where and the source from which received," it would appear that no sooner the quantities of foodgrains are received on a particular day, they have to be entered in the stock register. Under condition (b) of Paragraph 3(i) of Form C, there is no obligation on the licencee to enter the goods received by him then and there. It has come in the evidence of the Assistant District Supply Officer (P.W.1) that he came to the premises of the petitioner in the evening and took about 2-3 hours in checking the stock. On the evidence of P.W.1, therefore, he came to the petitioner sometime about 4 P.M. and the verification lasted till about 6.30 or 7 P.M. P.W. 1 has, however, admitted that in Deoghar shops are closed at 9 P.M. Thus, on the evidence of P.W.1 himself, the search or verification was concluded about 2 or 3 hours before the closing of the shop. Under Section 7 (i) of the Bihar Shops and Establishments Act, 1955 also the opening and closing hours of establishments is 7 A.M. to 9 P.M. It was, therefore, open to the petitioner to bring the register in conformity with the excess foodgrains found in his premises any time till the shop was closed. i.e., any time till 9 P.M. This again was not imperative because Paragraph 3(ii) lays down that if he was prevented from some reasonable cause, he could complete the account on the following day. i.e., any time till 9 P.M. This again was not imperative because Paragraph 3(ii) lays down that if he was prevented from some reasonable cause, he could complete the account on the following day. Thus, so far excess food grain is concerned, the petitioner cannot be said to have committed any offence. In terms of the licence he had at least two hours' time to make up the relevant entries and, in this view of the matter, the search was premature. A similar view was expressed by A.B.N. Sinha, J. in (1) Shyamsunder Sultania V. The State of Bihar (Criminal Revision No. 345 of 1967, decided on the 24th September, 1968). I am further fortified in this view of mine by the decisions in (2) Rameshwar Lal Marwari V. Emperor (A.I.R. 1948 Patna 356) and (3) Kedar Nath V. State of Bihar (A.I.R. 1952 Patna 28). In the case of (2) Rameshwar Lal Marwari, it was held that the shopkeeper was not expected to keep his books entered up to the minute. Similar observations have been made in the case of (3) Kedar Nath (A. I. R. 1952 Patna 28). 5. So far the shortage of foodgrains is concerned, the petitioner being a retail shop-keeper was not bound to issue receipts in respect of the sale of one kind of foodgrain up to Rs.5/-, and up to Rs.10/- if two or more kinds of foodgrains were sold; therefore, it cannot be said with any amount of certainty chat in reality there was shortage of foodgrains of those kinds. 6. The result, therefore, is that the application is allowed, the conviction and sentence imposed on the petitioner are set aside and the ORDER :of forfeiture passed by the learned Magistrate is annulled. Fine, if paid, shall be refunded. In case the foodgrains already seized have been sold and the sale process deposited in the treasury as directed by the learned Magistrate, the amount shall be handed over to the petitioner. If the foodgrains seized have not been sold, they shall be released and made over to the petitioner. Application allowed.