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1991 DIGILAW 260 (PAT)

Banshi Sao v. State Of Bihar

1991-07-09

S.HODA

body1991
Judgment Shamimul Hoda, J. 1. The petitioners have filed this Criminal Miscellaneous application u/s. 482 of the Code of Criminal Procedure for quashing the order, dated 20.3.1987, passed by the Special Judge, Hazaribagh in Goal Police Station Case No. 58(8) by which cognizance has been taken against them for the offence under sections 7 of the Essential Commodities Act read with sections 143,224,225, 186 and 418 of the Indian Penal Code. 2. The officer-in-charge, Goal Police Station lodged F.I.R. alleging therein that on 20th August, 1984 he received an information that a truck loaded with rice had arrived at Gola from Rohtas. When he reached Gola Bazar on Bokaro Ramgarh road, he found truck No. BHZ-1558 loaded with rice bags. The truck was unloaded and the rice bags were being kept in the shop of Ram Kumar Agrawal, petitioner No. 2, in his presence as well as in presence of his son, petitioner No. 3. It has been further alleged that on seeing the informant, labourers fled away and. when the informant wanted to inspect the shop and the rice bags, petitioner No. 3, Manoj Kumar Agrawal closed the shop from inside. On demand petitioner No. 2 did not produce the licence, the books of account etc nor the price and stock display board was found and as such for violation of provision of Bihar Foodgrain Dealers Licensing Order, petitioner No. 2 was arrested alongwith driver and Khalasi of the truck. It was further alleged that the driver produced cash memo No. 2, dated 19.8.1984 issued by Mis. Jai Durga Galla Bhandar of Aatmiganj (Nasriganj), District-Rohtas, in the came of Banshi Sao, petitioner No. 1 of Gola in respect of 120 bags of rice dispatched through the aforesaid truck which in the opinion of the informant was not genuine as consignment was meant of Banshi Sao the same was being un loaded at the shop of Ram Kumar Agrawal without any reason. Further allegation is that on demand farm XXVIII-B issued by the sales tax department, levy paid certificate etc. were not produced. Further case of the informant is that some other persons came there and forcibly took away petitioner No. 2 from the custody of the informant On the aforesaid allegation, First Information Report was lodged for the offence mentioned above. The Police after investigation submitted charge-sheet against the petitioners. 3. Mr. were not produced. Further case of the informant is that some other persons came there and forcibly took away petitioner No. 2 from the custody of the informant On the aforesaid allegation, First Information Report was lodged for the offence mentioned above. The Police after investigation submitted charge-sheet against the petitioners. 3. Mr. P.D. Agrawal, learned Counsel appearing for the petitioners submitted that no offence under section 7 of the Essential Commodities Act is made out against the petitioners. According to the F.I.R. petitioners are alleged to have violated the provisions of the Foodgrains Dealers Licensing Order, 1967. This order stood repealed after coming into force of the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as Unification Order), with effect from 19.8.1984 clause 32 of the Unification Order provides that from the date of commencement of this Order, the Licensing Orders mentioned in Schedule-III shall stand repealed and scheduled III contains the Bihar Foodgrains Dealers Licensing Order 1967. Thus on the date of occurrence i.e. on 20.8.1984 the petitioners cannot be said to have violated the provisions of the Foodgrains Dealers Licensing order. 4. The next point arises whether the petitioners have violated any of the provisions of the Unification Order which had already come into force on the date of occurrence. Clause 2(P) of the Unification Order defines retail dealer as follows: Retail dealer 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. Clause 2(u) defines wholesale dealers as follows:- Wholesale dealer 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. Clause-4 of the Unification Order contains the provision for issue of licence and sub-clause (1) (a) provides as follows: Every application for the grant of a licence (Whole sale or retail) shall be made to the Licensing Authority in Form - A alongwith the fee, prescribed in Schedule-IV. 5. Thus from bare perusal of the aforesaid provision, it is apparent that licencee will be either a wholesale or a retail and unless the storage limit is provided by the Government the provision of the Unification Order is not workable. 5. Thus from bare perusal of the aforesaid provision, it is apparent that licencee will be either a wholesale or a retail and unless the storage limit is provided by the Government the provision of the Unification Order is not workable. The Government for the first time issued notification on 17.10.1985 fixing storage limit. Thus, on the date of occurrence there was no storage limit and such the provision of the Unification Order was not workable. This being the petition, petitioners cannot be said to have violated any of the provision of the Unification Order. In this connection reference has been made to 1988 PLJR 4631. In my opinion on the date of occurrence all there was no notification under the Unification order fixing the storage limit the petitioners cannot be prosecuted for violation of any of the provision of the Unification Order. 6. It has been next contended that the cognizance for the offence under Secs. 143 and 186 of the Indian Penal Code is bad as the same is barred u/s. 468 of the Code of Criminal Procedure. The contention of the learned counsel appears to have force. The offence u/s. 143 of the Indian Penal Code is punishable with imprisonment for sixmonths whereas offence u/s. 186 of the Indian Penal Code with imprisonment for three months. The period of limitation for taking cognizance for such an offence is one year. In the present case, the occurrence is said to have taken place on 20.8.1984 whereas the cognizance has been taken on 20.3.1987. Thus the bar under-section 468 clearly applies and the cognizance is barred by limitation. 7. It has been next contended that the provision contained in sections 224 and 225 of the Indian Penal Code are not attracted in the present case. Sec. 224 deals with resistance or obstruction by a person to, his lawful apprehension whereas Sec. 225 deals with resistance or obstruction to the lawful apprehension of another person or rescuing him from lawful custody. Petitioners having not committed any offence under the Essential Commodities Act the apprehension of another person, or rescuing him from lawful custody. Petitioners having not committed any offence under the Essential. Commodities Act the apprehension of the petitioner No. 2 and others was not lawful and as such even if they were rescued as alleged no offence under the said provisions can be said to have been committed. Petitioners having not committed any offence under the Essential. Commodities Act the apprehension of the petitioner No. 2 and others was not lawful and as such even if they were rescued as alleged no offence under the said provisions can be said to have been committed. I have held above that the provisions of the Foodgrains Dealers Licensing Order was not in force on the date of occurrence and even the provisions .of Unification Order was not workable, the apprehension of the petitioner No. 2 cannot be said to be lawful on account of alleged contravention of the aforesaid Orders. This being the position, no offence is made out under Secs. 224 and 225 of the Indian Penal Code and as such cognizance for the said offence cannot be sustained. 8. It has been also contended that the learned special judge was not competent to take cognizance of the offence u/s. 468 of the Indian Penal Code as no offence is made out. The allegation in the First Information Report is that the cash memo was issued in the fake name. From the record, it appears that the cash memo was issued in the name of petitioner No. 1 Banshi Sao, who was having wholesale licence bearing licence No. HZB 13/70 which was issued under the provisions of the Bihar Foodgrains Dealers Licensing Order, 1967 and the said petitioner No. 1 is the father-in-law of petitioner No. 2. Thus the allegations do not constitute the offence u/s. 468 of the Indian Penal Code. 9. It has been further contended by learned counsel for the petitioners that there being no restriction on the movement of rice from one part of the State of Bihar to another part of the State and there is no sales tax check-post between Aatmiganj and Gola, there was no necessity for carrying road permit in form XXVIII-B. Even if it was required the matter is beyond the purview of section 7 of the E.C. Act. Learned Counsel for the State has not been able to controvert this position. 10. It has been lastly contended that the petitioners were not required to produce levy paid certificate as the provisions regarding the said certificate contained in clauses 8 and 9 of the Bihar Rice and Paddy Procurement (Levy Order 1983) has been held to be ultra vires. Reference in this regard, may be made to 1984 PLJR 8712. 10. It has been lastly contended that the petitioners were not required to produce levy paid certificate as the provisions regarding the said certificate contained in clauses 8 and 9 of the Bihar Rice and Paddy Procurement (Levy Order 1983) has been held to be ultra vires. Reference in this regard, may be made to 1984 PLJR 8712. In view of the fact that the provisions contained in clauses 8 and 9 have been declared ultra vires the petitioner cannot be prosecuted for non-carrying levy paid certificate. 11. In the facts and circumstances of the case and the provisions of law discussed above, I find considerable force in the argument advanced by learned counsel for the petitioners. The petition is thus allowed and the order dt. 20.3.1987 taking cognizance against the petitioners is, accordingly set aside.