Jhopri Sao v. State Of Bihar — 1979 DIGILAW 286 (PAT)

Judgment Muneshwari Sahay, J. 1. These two applications, namely, Cr. Misc. Nos.3220 and 3631 of 1977 have been heard together as they arise out of the same case. One Jhopri Sao is the petitioner in Cr. Misc. No.3220/77. His son jawahar Prasad is the petitioner in Cr. Misc.3631 of 1977. Jawahaf Prasad is the licensee under the Bihar Banaspati dealers Licensing Order (hereinafter to be referred to as the order ). The Circle officer, Masaurhi, inspected the business premises of Jawahar Prasad on 29-7-1975 at 3 p. m. Jawahar Prasad was not present at the shop. His father Jopri Sao was present there. The Circle Officer demanded the licence from Jhopri Sao. The licence was produced and it was found that it had been renewed upto date. The Circle Officer next demanded the stock register of Banaspati which was produced by Jhopri Sao for inspection. The Circle Officer found that the stock mentioned in the stock register was in excess by 31 kgs. than the actual stock found in the shop. The stock as mentioned in the stock register was 295 kgs. of banaspati which on verification, however, was found only 264 kgs. The circle Officer also demanded the cash memo from Jhopri Sao. Jhopri Sao did not produce the cash memo and gave out in writing that as the cash memo had been sent for being printed he had not issued any cash memo for sales made on that date. The Circle officer also found that the actual stock of the banaspati had not been displayed on the board at the entrance of the shop. The stock showed on the board was 295 kgs. although as mentioned earlier the actual stock was only 264 kgs. 2. The Circle Officer, therefore, lodged a first information report before the masaurhi police making the aforesaid allegations against the petitioners. The circle Officer alleged that the petitioners had violated the conditions 4 and 7 of the licence issued under the Order as also the provisions of the Bihar Essential articles (Display of Stocks) Order 1975 (hereinafter referred to as the display Order ). 3. In due course charge-sheet was submitted against the petitioners by the police and the learned Magistrate took cognizance against them for offence under Sec.7 of the Essential Commodities act and Rule 114 of the Defence of india Rules. 3. In due course charge-sheet was submitted against the petitioners by the police and the learned Magistrate took cognizance against them for offence under Sec.7 of the Essential Commodities act and Rule 114 of the Defence of india Rules. It is this order, by which cognizance was taken against the petitioners, that is being impugned in the present case. 4. Learned counsel for the petitioners has submitted that the Display order has been ultra vires the provisions of rule 114 of the Defence of india Rules, 1971 by a, bench of this Court in Cr. W. J. C.1 of 1977 decided on the 4th December, 1979. Therefore, it is submitted that the petitioners cannot be prosecuted or punished for any contravention of the Display Order. The submission has to be accepted because the Display Order, which is alleged to have been contravened by the petitioners, has itself been heen held invalid by this Court. Learned counsel for the State does not dispute the correctness of this submission. 5. Learned counsel for the petitioners has contended further that the law is well settled that only licence can be prosecuted and punished for the contravention of terms and conditions of the licence. The reason is obvious. A person, who does not hold any licence, is not required to obey any condition which could be mentioned in the licence. In instant case, it is admitted that the licence stands in the name of Jawahar prasad and Jhopri Sao was not the licence. Therefore, Jhopri Sao could not be prosecuted for contrayaning conditions 4 and 7 of the licence. It may be stated in this connection that neither in the fist information report nor in the charge-sheet it has been alleged that on the date the contravention was committed, Jhopri Sao was incharge of and was responsible to the conduct of the business of the firm. Therefore, in any view of the matter, petition of Jhopri Sao, namely, cr. Misc. No, 3220 of 1977 succeeds and is allowed. 6. The question arises if Jawahar Prasad petitioner in the other case can be prosecuted for the violation of conditions of the licence as stared above. Learned counsel has contended that the cognizance taken against him was barred by time in view of the provisions of Sec.468 of the Code of Criminal Procedure. 6. The question arises if Jawahar Prasad petitioner in the other case can be prosecuted for the violation of conditions of the licence as stared above. Learned counsel has contended that the cognizance taken against him was barred by time in view of the provisions of Sec.468 of the Code of Criminal Procedure. It is submitted that the only allegations which are made against the shop owner are that the stock register was not properly maintained and that the cash memo was not produced. The learned counsel contends that these offences are covered by provisions (h) and (i) of sub-section (2) of Sec.3 of the Essential commodities Act. The aforesaid clauses provide, inter alia, that without prejudice to the generality of the powers conferred under sub-section (1) any order made thereunder may provide for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters and for requiring persons engaged in the production and supply or distribution of trade or commerce in any essential commodities to maintain and produce for inspection such books, accounts and records relating to the business and to furnish such information relating thereto as may be specified in the order. Learned counsel submits that maintenance of account books and their production for inspection are squarely covered by these provisions and, therefore, the order which is alleged to have been contravened by Jawahar prasad must be held to have been made in exercise of the power conferred by Sec.3, sub-section (2) clause (h) and (i) of the Essential Commodities Act. Learned counsel has referred me in this connection to the decision in case of r. C. Ram V/s. The Slate of Rajasthan, (AIR 1964 Rajasthan 237) in which it was held that failure to maintain accounts books or receipt books properly as required under the conditions of the licence held under the Rajasthan Foodgrains Dealers licensing Order, 1958 was a breach liable to be prosecuted under Sec.3 (2) (i) and not under Sec.3 (2) (d)and the defaulting licence-holder is punishable under Sec.7 (1) (a) (i) with imprisonment for a term which may extend to one year. Similar view was taken by this Court in Cr. Misc No.1556 of 1979 decided on 14th November, 1979. With respect I agree with the views expressed in these decisions. Similar view was taken by this Court in Cr. Misc No.1556 of 1979 decided on 14th November, 1979. With respect I agree with the views expressed in these decisions. The position, therefore, comes to this that the offence which the petitioner Jawahar Prasad is alleged to have committed is punishable under Sec.7 (1) (a) with imprisonment for a term which may extend to one year and shall also be liable to fine. In the instant case the offence is alleged to have been committed on 29th July, 1975. Cognizance was taken on 14th April, 1977 i. e, more than a year after the date of offence. Sec.451 of the Code lays down that no court shall take cognizance of an offence punishable with imprisonment for a term not exceeding one year beyond one year of the date prescribed as the date of commencement of the period of limitation under Sec.469 of the Code. Therefore in this case as the date of offence was 29th July, 1975 and as the cognizance was taken more than a year after that date, learned counsel submits that the cognizance was barred by time. 7. Learned counsel for the State has invited my attention to the decision of a learned Single Judge of this Court in the case of Kunf Bihari Singh V/s. Shanti Lal Sah ( 1978 BLJR 170 ). In this case the court in effect held that while computing the period of imprisonment which may be imposed on the accused in default of payment of the fine should also be taken into consideration,. Therefore, if an offence is punishable with imprisonment for a period of one year and also a fine then evidently any term of imprisonment which may be imposed on the accused in lieu of the fine will render the offence punishable with imprisonment for more than a year and in that view of the matter such a case will be covered by clause (c) of Sec.468 (2) of the Code where the period of limitation is three years, if the offence is punishable for an imprisonment for a terra exceeding one year but not exceediang three years. Learned counsel submits that if the period of imprisonment which can be imposed in lieu of fine is taken into consideration then the total period of imprisonment exceeds one year and consequently three years limitation will apply to such a case. Learned counsel submits that if the period of imprisonment which can be imposed in lieu of fine is taken into consideration then the total period of imprisonment exceeds one year and consequently three years limitation will apply to such a case. Learned counsel for the petitioners his on the other hand contended that the Parliament does not seem to have taken into consideration the period of imprisonment which can be imposed in lieu of fine while enacting Secs.468 and 469 of the code. Learned counsel also points out that in numerous decisions this court as well as the Supreme Court have applied Sec.468 of the Code without taking into consideration the period of imprisonment which can be imposed in lieu of fine, One of such cases, it is pointed out can be found in the decision of the suprime Court in the case of Surendra Mohan Vikal v. Ascharilal Chopra, 1978 criminal Law Journal 764. 8. I am inclined to agree with the submission made by the learned counsel for the petitioners that the period of imprisonment in lieu of fine was not taken into account by the Parliament while enacting sec.468 and 469 of the Code and I shall presently give my reasons for the same. Sub-section (2) (b)of Sec.468 of the Code provides period of limitation if the offence is punishable with fine only. The period of limitation prescribed is six months. If the period of imprisonment which may be imposed in lieu of fine can be taken into consideration then sub-section (2) (a) of Sec.468 will become redundant, as there would be no offence punishable with fine only. I may refer in this connection to Sec.67 of the Indian Penal Code. "section 67 - Imprisonment for non-payment of fine when offence punishable with fine only - If the offence is punishable with fine only the imprisonment which the court imposes in default of payment of fine shall be simple and the term for which the court directs the offender to be imprisoned in default of payment of fine shall not exceed the following scale that is to say for any term not exceeding two months when the amount of the fine shall not exceed Rs.50 and for any term not exceeding four months when the amount shall not exceed Rs; 100 and for any term exceeding six months in any other case. " Therefore even if an offence is punishable with fine only the court is competent to order imprisonment in default of payment of the fine, the nature and term of which is to be guided by Sec.67. Therefore if imprisonment in lieu of fine has to be taken into account while considering Sec.468 of the Code then there will be no offence which can be said to be punishable with fine only and in that view of the matter sub-section (2) (a) of the Sec.468 could be rendered redundant. I have not mind that such constitution cannot be given to sec.458 and the section should be construed in a manner which gives full play to all the provisions of the section 1 feel no hesitation in holding, therefore, that Sec.458 does not contemplate imprisonment which can be imposed in lieu of fine while providing the period of limitation for different offences. The fact that the section is being applied in the decisions of the Supreme Court as well without taking into consideration the inprisonment which can be imposed in lieu of fine also lends support to the view which I have taken. 9 For reasons which have been given, therefore, in the instant case one. year limitation will apply and as the cognizance was taken more than a year after the date of offence, it was patently erroneous in law.1 - In the result, therefore, both the applications succeed and are allowed the cognizance taken against the petitioners and the proceedings which are pending against them in pursuance of that cognizance are quashed. Applications allowed.