Uttam Kumar Sharma v. State of Bihar — 1989 DIGILAW 437 (PAT)

JUDGMENT Surendra Narain Jha, J.-Both these application were heard together and they are being disposed of by this common judgment as common question of law is involved in these applications. 2. The short facts which led to the filing of Cr. Misc. No. 3201/1985 (R) are as follows. A fardbeyan was lodged on 5.6.85 by the Officer Incharge of Chirkunda Police Station alleging, inter-alia, that on the basis of a secret information, the factory premises of M/s. Lakshmi Narain & Brothers was inspected. It was stated that a truck was being loaded with burnt coal. The coal in question belonged to the petitioner and the same was being transported to Calcutta. The truck and burnt coal were seized by the informant On the basis of the aforesaid allegation, Chirkunda P. S. Case No. 94/1985 was registered, a copy of which is Annexure-1 appended to this application. 3. According to the petitioner's case, he was running a business under the name and style of M/s. K. K. Enterprises and the said firm was awarded contracts for lifting of kiln burnt ash by M/s. Sharad Refractories, M/s. Associated Ceramics Pvt. Ltd. and M/s. Chirkunda Ceramic Works. As per the terms of the aforesaid contracts, the petitioner had to arrange for removal of the said burnt ash within 2 to 3 days of each firing and the petitioner was offered a flat rate of Rs. 200/- to Rs. 225/- per kiln for the same. According to his case, the truck in question was being landed with such burnt ash and no offence whatsoever has been committed by him. 4. It was submitted on behalf of the petitioner that the burnt ash is not coal within the meaning of the provisions of law prevailing in the country and, in any view of the matter, there was no restriction on movement of even coal under the Bihar Trade Articles (Licences Unification) Order, 1984 (for short 'the Unification Order, 1984') so as to attract the penal provisions of section 7 of the Essential Commodities Act (for short 'the E C. Act'). 5. The facts which led to the tiling of Cr. Misc. No. 4715/1986 (R), in short, are that on 20.4.1985 on secret information, the Officer Incharge of Gobindpur Police Station learnt that one Pradip Kumar was running a coal depot in illegal manner. 5. The facts which led to the tiling of Cr. Misc. No. 4715/1986 (R), in short, are that on 20.4.1985 on secret information, the Officer Incharge of Gobindpur Police Station learnt that one Pradip Kumar was running a coal depot in illegal manner. He raided the depot and found that two trucks were being loaded with coal. It was stated in the F. I. R. that on enquiry, the persons present there, disclosed that the coal have been loaded from the depot of the aforesaid Pradip Kumar who had taken the depot on rent from the petitioner without any licence. 6. It was submitted on behalf of the petitioner that in the F. I. R. neither the petitioner was named nor there was any allegation against him and no offence has been committed by him as alleged by the prosecution. 7. From the statements mare in this application, it appears that the petitioner also challenged the vires of the provisions of the Unification Order, 1984 in the Calcutta High Court where some interim order of stay was passed and the petitioner was allowed to carryon business whatsoever licence. Therefore, no offence whatsoever has been committed by the petitioner. 8 Common plea has been taken on behalf of the petitioners by the learned counsel appearing on their behalf. In any event on the alleged date of occurrence ill both the cases, the storage limit of coal had not been fixed and, in that view of the matter no offence, whatsoever, has been committed by the petitioners of both these applications even if the allegations made in the F. I. R. are taken to be correct in its entirety. Therefore, the entire prosecution is misconceived and fit to be quashed. 9. In Cr. Misc. No. 3201/1985 (R), the date of occurrence is 5.6.85 whereas in Cr. Misc. No. 4715/1986 (R) the date of occurrence is 20.4.85. It was pointed out by the learned counsel that in Cr. Misc. No. 3201/1985 (R), it has been stated in the F.I.R. that there has been violation of provisions of Bihar Coal Control Order, 1956 which was already repealed and in Cr. Misc. No. 4715/1986 (R), nothing has been stated either in the F.I.R or in the charge-sheet submitted as to which of the provisions has been violated. 10. Misc. No. 3201/1985 (R), it has been stated in the F.I.R. that there has been violation of provisions of Bihar Coal Control Order, 1956 which was already repealed and in Cr. Misc. No. 4715/1986 (R), nothing has been stated either in the F.I.R or in the charge-sheet submitted as to which of the provisions has been violated. 10. In Support of his contention, the learned counsel has drawn my attention to the Unification Order, 1984 which came in force on 19.4. 1984. Clause 32 (i) of the Unification Order, 1984 is repealed and saving clause which says that from the date of commencement of this order, the licensing orders mentioned in schedule III shall stand repealed except Bihar Cement Control Order, 1972 and the provisions of this order shall have effect notwithstanding anything to the contrary contained in the licences repealed by this sub-clause. From bare reading of sub-clause (i) of clause 32, it is apparent that the orders mentioned in schedule III appended to this order stood repealed from the date of commencement of the Unification Order, 1984. In schedule III, item no. 4 is Bihar Coal Control Order, 1956. In that view of the matter, the Bihar Coal Control Order, 1956 stood repealed by virtue of sub-clause (i) of clause 32 of the Unification Order, 1984 on 19.4.84. Therefore, the question of violation of any provision of Bihar Coal Control Order does not arise at all on the date of alleged occurrence so far as Cr. Misc. No. 3201/1985 (R) is concerned. 11. Even assuming that label of the order may be wrong but the question is as to whether any violation of the provisions of Unification Order, 1984 has been made by the petitioner or not? The allegation against the petitioners of Cr. Misc. No. 3201/1985 (R) is that on raid the Officer Incharge found 3 tons of coal loaded on the truck and 12 M. tons were stacked in the depot. Therefore, he was proceeded under section 7 of the E.C Act. As I have already indicated above that the learned counsel vehemently argued that in any view of the matter, there was no limitation on the storage of coal en the alleged date of occurrence nor there was any restriction on the movement of coal under the Unification Order, 1984 so as to attract the penal provisions of the E.C. Act. As I have already indicated above that the learned counsel vehemently argued that in any view of the matter, there was no limitation on the storage of coal en the alleged date of occurrence nor there was any restriction on the movement of coal under the Unification Order, 1984 so as to attract the penal provisions of the E.C. Act. In support of his contention, he has relied upon an unreported decision in the case of Sanwarmal Agrawalla Vrs. State of Bihar (Cr. Misc. No. 3046 of 1985 (R) disposed of on 25.7.1989) Reliance has also been placed on a Bench decision of this Court ill the case of M/s. Rajesh Trading Company Vrs. State of Bihar, 1988 PLJR 463 where a similar question was considered 12. Before dealing with the points, I may indicate here that the Unification Order, 1984 has defined a dealer to mean a person engaged in the business of purchase, sale or storage for sale of any trade articles whether or not in conjunction with any other business and to include his representatives or agent subject to the exceptions enumerated therein. Clause 2(P) of the Unification Order, 1984 defines retail dealer which means a person engaged in the business of purchase sale or storage of any article for purpose other than personal consumption within the storage limit fixed by the Government from time to time. In this connection, it is relevant to mention clause 18 of the Unification Order, 1984 which read as follows :- "No person shall, either by himself or by any person on hi, behalf, store or have in his possession at any time any trade article mentioned in Schedule I and Schedule II in quantity exceeding the limits fixed- (i) Under an order issued by the Central Government, or (ii) by the State Government with prior concurrence of the Central Government by issuing a notification in official gazette from time to time." 13. It is an admitted position in these cases that the Bihar Control Order has been repealed and the Governor was pleased to promulgate the Unification Order, 1984 and that order came into force since 14.4.84 as noticed above. In the aforesaid Unification Order, 1984, there is no provision for taking licence for purchase of coal and only storage limit has been fixed. In the aforesaid Unification Order, 1984, there is no provision for taking licence for purchase of coal and only storage limit has been fixed. The storage limit of coal was not fixed on the alleged date of occurrence and it was only fixed by a notification dated 17.10.85. In that view of the matter, I find force in the commission of the learned that the incident which had taken place in these cases on 5.6.85 and 20.4.85 is not covered by the subsequent notification issued later on after the alleged date of occurrence. In the case of Sanwarmal Agrawalla vs. State of Bihar (supra), the same point was canvassed and His Lordship allowed the application and quashed the order taking cognizance and the criminal prosecution against the petitioner of that case so far as the allegation under the E.C Act was concerned. 14. The notification regarding storage limits of trade article, came into force on 17.10.1985 vide GSR 49 dated 17.10.1985. The said notification reads as follows :- "In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with the orders of the Government of India in the Ministry of Agriculture and Irrigation (Department of Food) published under G.S.R 452 (E), dated the 25th October, 1972, 168 (E), dated the 13th March, 1973 and 800 (E) dated the 8th June, 1978 and in the Ministry of Industry and Civil Supplies (Department of Civil Supplies and Cooperation) published under S.O. 681 (E) and 682 (E). dated the 30th November, 1974 and with the prior concurrence of Central Government, the Governor of Bihar is pleased to fix the following stock limits of the Trade Articles under clause 3 of Bihar Trade Articles (Licences Unification) Order, 1984, published in Food, Supply and Commerce Department's G.S.R. no. 9 dated the 19th April 1984." So this notification, as indicated above, came into force on 17.10.1985. 15. What will be the effect of any alleged offence which has been committed in between the period 19.4.1984 to 17.10.1985 was a question for consideration before a Division Bench of this Court in the case of M/s. Rajesh Trading Company vs. State of Bihar (supra). 15. What will be the effect of any alleged offence which has been committed in between the period 19.4.1984 to 17.10.1985 was a question for consideration before a Division Bench of this Court in the case of M/s. Rajesh Trading Company vs. State of Bihar (supra). In the aforesaid case, submission was mace that even if the seized article was found to be gram, on the date the seizure took place i.e. 28.10.1984, there was no order 'operational' to cover gram or any other foodgrains because the Government had not issued any notification as requited by clause 2(U) of the Unification Order, 1981 which order had come into operation by then. There was a vacuum for some time and this seizure occurred during that interregnum and His Lordship quashed the impugned order of prosecution the matter had also received finality on the concession being made by the learned Advocate himself in Cr. Misc. No. 3284/1985 where it was found that no notification fixing storage limit under clause 2 (P) and 2 (U) defining wholesale and retail dealer was issued by them. 16. Relying on the aforesaid decisions, I have no option but to hold that on the date of alleged occurrence, there was no notification at all fixing in storage limit as required under the provisions of the Unification Order, 1984. 17. Section 3 of the Unification Order, 1984 clearly states that licence is required only for dealers who stock coal for sale not exceeding limit which may be prescribed by the Government with prior concurrence of the Central Government for any trade articles from time to time. As I have held that there was no notification on the date of occurrence and this fact cannot be denied even by the State counsel, in the circumstances, it is apparent that no case, whatsoever under section 7 of the E.C Act is made out in respect of the petitioners even if the allegations in its entirety be accepted. Therefore, the impugned orders taking cognizance and the criminal prosecution against the petitioners arc illegal and fit to be quashed. 18. In the result, both the applications are allowed and the impugned order and the criminal prosecutions against them are hereby quashed, for the reasons stated above.