Surya Narayan Kumar v. State Of Bihar — 1998 DIGILAW 882 (PAT)

Judgment P.K.Sarkar, J. 1. This application has been filed against the order dated 19.5.1993 passed by the Special Judge, E.C. Act, Katihar in case No. C-II-4 of 1993 whereby the learned Special Judge has taken cognizance against the petitioners for an offence punishable under Section 7 of the Essential Commodities Act. It appears that a prosecution report was submitted against the petitioners by Senior Marketing Officer, Katihar on 27.4.1993 alleging therein that while giving L.P. Gas connection the Railway Mens Consumers Co-operative Society Limited, Katihar, represented by the petitioners used to realise some illegal amount. Therefore, the matter was inquired into and it was detected from the receipt book that Rs. 100/- was realised from each consumer if the Gas Burner was not purchased. It also appeared that in one receipt about Rs. 400/- was taken for giving the Gas connection. More such irregularities were also detected and hence, prosecution report was submitted against the petitioners who are President, Secretary, Accountant and Manager respectively of the said Railway Mens Consumers Co-operative Society, Katihar. On the basis of the aforesaid prosecution report, the Special Judge took cognizance of the case on 19.5.1993 under Section 7, E.C. Act and ordered to issue summons against the petitioners. 2. Being aggrieved and dissatisfied with the impugned order, this application has been filed. 3. The learned Counsel for the petitioners submits that the provision of Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter to be referred to as the Unification Order) is neither workable or enforceable so far as L.P. Gas is concerned, because of the failure of the State Government in not fixing the storage limit, so far Gas is concerned for the wholesale and retail dealers. In that view of the matter, the provisions of Unification Order is neither workable nor enforceable in the eye of law. In this connection, the learned Counsel for the petitioners relied upon a decision of this Court reported in 1998 (1) PLJR 103 : 1998 (1) East Cr C 502 (Diwakar Sharma V/s. The State of Bihar) wherein a similar question arose and while accepting the plea, the following observation was made by the Court. In this connection, the learned Counsel for the petitioners relied upon a decision of this Court reported in 1998 (1) PLJR 103 : 1998 (1) East Cr C 502 (Diwakar Sharma V/s. The State of Bihar) wherein a similar question arose and while accepting the plea, the following observation was made by the Court. "The learned Counsel for the petitioner has contended that no storage limit has been fixed for liquefied petroleum gas (hereinafter referred to as the L.P.G) under the Unification Order as such the Unification Order was not workable in respect of the LPG and there arises no question of contravention of Clauses 16 (II) of the Unification Order or any other clause of the said Order. In support of his contention he has placed reliance on an unreported decision of this Court dated 17.11.1974 passed in Cr. Rev. No. 367 of 1991 with Cr. Rev. No. 322 of 1991 (Satish Agrawal and others V/s. State of Bihar). In the said case, it has been held that in absence of fixation of storage limit under the Unification Order the same was not workable and enforceable in respect of L.P.G. and the cognizance order was set aside in the said case. In views of the decision of this Court in the said case the contention advanced on behalf of the petitioner of fixation of storage limit for LPG the provisions of Unification Order could not be enforced against the dealer and it can not be said that any clause of the Unification Order has been contravened by the dealer by storing L.P.G." 4. The learned Counsel for the petitioner also submits that in this case the petitioners are all office bearers of the Railway Mens Co-operative Society. The said Society is run by the railway employees and, thus, if anything was realised, that was for the welfare of the Society and the petitioners had no individual gains. 5. The learned Counsel appearing on behalf of the State admits the legal position and also the fact that there was no notification in the L.P. Gas by the State Government and no storage limit was fixed. In that view, no action can be taken against the petitioners on the basis of the provisions of the Unification Order. It is really unfortunate that the State Government could not issue the above notification till now. 6. In that view, no action can be taken against the petitioners on the basis of the provisions of the Unification Order. It is really unfortunate that the State Government could not issue the above notification till now. 6. Be that as it may, in view of the decision taken by this Court in Diwakar Sharma v. The State of Bihar (supra), I find that there is substances in the contention of the learned Counsel for the petitioners and this application deserves to be allowed. Accordingly, this application is allowed and the impugned order dated 19.5.1993 passed by the Special judge, EC Act, Katihar, in Case No. C-II-4 of 1993 is hereby quashed.