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1976 DIGILAW 208 (PAT)

S. C. Choudhary v. State of Bihar

1976-10-28

MUNESHWARI SAHAY

body1976
JUDGMENT MUNESHWARI SAHAY, J. 1. This application is directed against an order dated 22.1.1976 passed by the Chief Judicial Magistrate, Gopalganj, by which he had taken cognizance against the petitioners under section 49 (7) of the Bihar Sugarcane (Regulation of Supply and Purchase). Fourth Ordinance, 1975 (hereinafter to be referred to as the Ordinance). All the three petitioners are associated with a sugar mill known as V.S. Mills Ltd., Harkhua, Petitioner No. 1 is described in the petition of complaint (annexure 1 to the application) as the General Manager of the mill, petitioner no. 2 K.K. Bajoria is described as a Director of the mill and petitioner no. 3 is described as a Cane Manager of that mill. The cane Officer, Gopalganj, had visited the sugar factory on 4.8.1975 and examined the register of cane cess/purchase tax and dispatches of sugar and he found that a quantity of 18,557, quintals of sugar was dispatched by the factory during the months of April to July, 1975. The cane cess payable on the dispatch amounted to Rs. 2.25,467.55 paise. The sugar factory had not deposited any sum of this cane cess before dispatching the sugar. Therefore, the Cane Officer reported that the accused persons had contravened the provisions of section 49(7) of the Ordinance. After the prosecution of the petitioners was sanctioned by the Cane Commissioner, Bihar, the complaint was filed before the Chief Judicial Magistrate which led to the passing of the impugned order. 2. Mr. S.B. Sanyal, learned counsel for the petitioners has contended that the cognizance taken against the petitioners was bad in law as the allegations made in the petition of complaint themselves do not make out any offence against them. For a proper appreciation of his submissions, reference will have to be made to the relevant provisions of the Ordinance. I shall first refer to sub-section (7) of section 49 of the Ordinance under which cognizance had been taken against the petitioners. For a proper appreciation of his submissions, reference will have to be made to the relevant provisions of the Ordinance. I shall first refer to sub-section (7) of section 49 of the Ordinance under which cognizance had been taken against the petitioners. It is as follows:– "Until the tax imposed under sub-section (1) is paid at the rate per quintal of sugar, notified in the official gazette, by the State Government and the certificate of payment is obtained from the Cane Officer concerned, the occupier of any factory or any person acting on his behalf or any other person shall not remove sugar from the factory." Therefore, the offence complained of was that the sugar had been dispatched from the factory without payment of the requisite tax as provided by the Ordinance. We have next to find as to who was the offender, i.e., who, on the allegations made in the petition of complaint, had dispatched the sugar. The petition of complaint in serial no. 8 expressly states that the sugar had been dispatched by the factory. Therefore, according to this complaint, the factory was the offender. 'Factory' has been defined under section 2(J) of the Ordinance to mean any premises, including the precincts thereof in any part of which sugar is manufactured by means of vacuum–pan process. Evidently, the premises did not dispatch the sugar and taking a charitable view on the matter, it may be said that the complaint perhaps had erroneously described occupier of a factory or the company by the expression 'factory'. 'Occupier of a factory' has been defined under section 2 (1) of the Ordinance as follows:– 'Occupier of a factory' means a person carrying on business of manufacturing sugar by vacuum–pan process in a factory and having the ultimate control over the affairs of the factory. Now, the question arises as to who was the occupier of the factory who had dispatched the sugar in contravention of the provisions of the Ordinance. Learned counsel for the petitioners has referred me to sub-section (5) of section 59 of the Ordinance along with its proviso to contend that the occupier of the factory was the Director nominated by the company under the aforesaid proviso. Learned counsel for the petitioners has referred me to sub-section (5) of section 59 of the Ordinance along with its proviso to contend that the occupier of the factory was the Director nominated by the company under the aforesaid proviso. Sub-Section (2) reads thus:– "Where the occupier of a factory is a company, any of the Directors thereof, or in the case of a private company anyone of the share–holders thereof, may be prosecuted and punished under this Ordinance for any offence for which the occupier of the factory is punishable:– Provided that the company may give notice to the Cane Commissioner that it has nominated a Director, or in the case of a private company, a shareholder, to be the occupier of the factory for the purposes of this Ordinance and such Director or shareholder shall be deemed to be the occupier of the factory for the purposes of this Ordinance until further notice canceling his nomination is received by the Cane Commissioner or until he ceases to be a Director or a shareholder." In the instant case, the company had nominated Shri Ram Dalmia, one of the Directors as occupier of the factory under the aforesaid provisions. This fact is admitted in paragraph 6 of the counter affidavit filed on behalf of the State of Bihar where it is expressly stated that it was a fact that during the relevant time Shri Shri Ram Dalmia was the dominated occupier of the factory. Learned counsel, therefore, submits that when the offender was the occupier of the factory and when the nominated Director was the occupier for the purposes of this ordinance, no one except the nominated Director could be prosecuted and punished for any contravention of the provisions of the Ordinance. 3. The submissions made by the learned counsel appear to be sound and well founded. We have to look to the petition of complaint to find out as to what was the offence and who was the offender according to the complaint. I have pointed out that the offence described in the petition of the complaint was the dispatch of the sugar without payment of requisite tax and the offender was the occupier of the factory. I have pointed out that the offence described in the petition of the complaint was the dispatch of the sugar without payment of requisite tax and the offender was the occupier of the factory. Therefore, when the occupier of the factory is identified as the nominated Director who was nominated under the provisions of sub-section (2) of section 59 of the Ordinance, it is obvious that he alone could be prosecuted for the commission of the alleged offence. 4. Learned counsel for the State invited my attention to the definition of 'occupier of a factory' as given in section 2(1) of the Ordinance and to the provisions of section 52 thereof. I have already reproduced above the definition of the expression 'occupier of a factory'. Learned counsel for the state submits that the occupier of a factory must be a person having the ultimate control over the affairs of the factory. Section 52 is renal section of the Ordinance and it provides, inter alia, that if any person contravenes any of the provisions of this Ordinance or the Rules or any order made or direction given thereunder he shall be punished with imprisonment mentioned in the section. Learned counsel for the State contends that the expression 'any person' in this section should be interpreted to mean any person who may be in actual charge of the factory. Apart from the fact that this interpretation cannot be spelt out from the wordings of the section. I may point out that assuming that this interpretation as suggested by the learned counsel could be given to the expression 'any person' there is no averment in the petition of complaint to show that the petitioners were actually in charge of the factory. It is true that one of the petitioners has been described as the Director and other to have been described as General Manager and Cane Manager of the factory. T his description of the petitioners in the petition of complaint cannot mean that they were actually in charge of the factory during the period in question. It is true that one of the petitioners has been described as the Director and other to have been described as General Manager and Cane Manager of the factory. T his description of the petitioners in the petition of complaint cannot mean that they were actually in charge of the factory during the period in question. I may also repeat that when the Ordinance itself lays down in clear terms as to who shall be deemed to be the occupier of the factory if a nomination is made under the provisions of section 59, there remains no scope for wandering about to ascertain as to who was really in ultimate control over the affairs of the factory. If my view is correct, then the nominated Director will be liable for prosecution and punishment for the contravention of the provisions of the Ordinance, no matter whether he was really in actual possession factory or the Company has projected him as the occupier of the factory by nominating him as such. 5. I am satisfied on a reading of the complaint and on an examination of the provisions of the Ordinance that no offence has been made out against the petitioners in the petition of complaint. Therefore, the order of the learned Chief Judicial Magistrate, Gopalganj, taking cognizance against the petitioners under section 49 (7) of the Ordinance was bad in law. The same is hereby set aside and the application is accordingly allowed. Application allowed.