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1990 DIGILAW 385 (PAT)

Bishandeo Sah v. State Of Bihar

1990-11-11

SURENDRA NARAIN JHA

body1990
Judgment SURENDRA NARAIN JHA, J. 1. The sole petitioner has been convicted under Section 7 of the Essential Commodities Act and has been sentenced to undergo rigorous imprisonments for one year by the trial Court, which was affirmed by the appellate Court, and hence this revision application. 2. The prosecution case, in short, is that on 30th April, 1979 at about 10.00 A.M. the complainant Sakil Ahmad, the then Supply Inspector (P.W. 2) accompanied by the then Assistant Marketing Officer (P.W. 3) inspected the shop premises of the petitioner, who was a retail kerosene oil dealer under the Bihar Kerosene Oil Dealers Licensing Order, 1965 being his licence No. 2 of 1973. At the time of inspection the shop of the petitioner was closed and his nephew was near the shop. On request by the raiding party he opened the shop and the raiding party inspected the shop and seized the stock register and found certain discrepencies in it. Seizure list (Ext. 6) was prepared and thereafter on the next date P.W. 2 filed comnlaint alleging, inter alia, that there was no entry in the stock register after 19-4-1979, so there was violation of the terms and conditions of the Licensing Order. Another allegation was that the Sale Register and the Cash Memos were not produced by the petitioner at the time of inspection. Therefore, the terms and condition of the licence was violated. On these two allegations the complainant prayed for taking action against the petitioner under Section 7 of the Essential Commodities Act. 3. The prosecution in order to substantiate the charges examined three witnesses, out of whom P.W. 1 was a formal witness, P.W. 2 was the complainant himself and P.W. 3 was the Assistant Marketing Officer at the relevant time at Munger, 4. The defence also examined two witnesses in support of its case. According to the defence case, there was no lifting of kerosene oil after 17-4-1979, therefore, there was on entry in the Stodk Register after 19-4-1979 and all the subsequent purchases made in the month of May were after the Stock Register was seized. The defence also examined two witnesses in support of its case. According to the defence case, there was no lifting of kerosene oil after 17-4-1979, therefore, there was on entry in the Stodk Register after 19-4-1979 and all the subsequent purchases made in the month of May were after the Stock Register was seized. So far as another allegation is concerned, according to the defence since the petitioner was not present in the shop, he could not be able to produce the Sale Register as well as the cash memos and no further opportunity was given to the petitioner to produce those documents before filing of the complaint. 5. The trial Court after considering the evidences available on the record, convicted and sentenced the petitioner to undergo rigorous imprisonment for one year, which was confirmed by the appellate Court, as indicated above. 6. The learned counsel appearing on behalf of the petitioner has submitted that only two allegations were levelled against the petitioner, namely, there was no entry of the lifting of the kerosene oil which was made on 16-5-1979, 21-54979, 25-5-1979 and 31-5-1979 in the Stock Register and the Cash Memos and the Sale Register were not produced at the time of inspection. It was vehemently argued that since the Stock Register was seized on 30-4-1979, naturally there was no entry in the Stock Register of the subsequent purchases made in the month of May, 1979, as noticed above, because the Stock Register was in the possession of the Supply Department. The learned counsel has pointed out that prior to 194-1979 there was no irregularity as in the impugned order of the trial Court, it is mentioned that there is no entry in the Stock Register after 194-1979. It was rightly submitted that there is nothing on the record to show that after 174-1979 the petitioner had lifted any litre of kerosene oil from the wholesale dealer except in the month of May. Therefore the prosecution has failed to prove the charge that no entry was made after 19-4-1979. 7. It was rightly submitted that there is nothing on the record to show that after 174-1979 the petitioner had lifted any litre of kerosene oil from the wholesale dealer except in the month of May. Therefore the prosecution has failed to prove the charge that no entry was made after 19-4-1979. 7. So far as other allegation is concerned it was contended that mere non-prodcetion of the Sale Register and the Cash Memos in the absence of the petitioner i.e., the dealer, will not make him liable to be prosecuted for contravention of the terms and conditions of the licence, because, admittedly the shop was closed and the petitioner was not present in the shop and no further opportunity was given to the petitioner to produce those documents subsequently. Therefore, the conviction of the petitioner on both the counts is illegal and fit to be set aside. 8. In support of his contention, the learned counsel has relied upon a decision in the case of Radhey Shyam Kelwalia V/s. The State, 1968 PLJR 325. In the aforesaid case, His Lordship has held as follows : "The basis of the prosecution is the failure of the petitioner to produce amongst other things his licence before the Inspecting Officer. I have no doubt in my mind that for mere failure to produce his licence the petitioner cannot be prosecuted for contravention of the Licensing Order or any of the terms and conditions of the licence in Form B." It was further held that, "If the staff had contravened any of the provisions of the Licensing Order of the terms and conditions of the licence in Form B then that cannot by itself justify the prosecution of the licensee. It is now well-settled that mens rea is an essential ingredient of an offence under Section 7 of the Essential Commodities Act for breach of the provisions of Foodgrains Dealers Licensing Order." If the petitioner was not present at the time of the inspection, as the Deputy Superintendent of Police appears to have found in his supervision note and as the prosecution report of the Supply Inspector also indicates, than no mens rea can possibly be attributed to the petitioner in respect of the alleged contravention of the Licensing Order or the terms and conditions of the licence which is the basis of the petitioners prosecution." 9. In the instant case, as I have already indicated above, the petitioner was not present at the time of inspection and his nephew could not be able to produce the Sale Register and the Cash Memos because he was not associated with the business of the petitioner. In that view of the matter, the instant case is fully covered by the aforesaid judgment on the point that there was no mens rea on the part of the petitioner to withhold any document from producing before the Licensing Authority. 10. Quite apart, the case also become stale, because the occurrence is also said to have taken place in the year 1979 and now after the lapse of more than eleven year, it is not desirable to send the petitioner to jail. 11. Taking into consideration all the facts and circumstances of the case and on the principle decided in the aforesaid case. I am of the opinion that the prosecution has failed to establish the charges levelled against the petitioner. 12. For the reasons stated above, the impugned judgments of the Court below are set aside and the application is allowed. The petitioner, who is on bail, is discharged from the liabilities of his bail bonds.