Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1016 (PAT)

Dilip Kumar v. State of Bihar

2004-09-22

body2004
ORDER In this miscellaneous application, prayer is for quashing the entire proceeding, including the order taking cognizance dated 6th August, 2001 for an offence under section 7 of the Essential Commodities Act (hereinafter referred to as "the Act") arising out of Gaya Kotwali P.S. Case No.3/2001, pending in the court of the S.D.J.M., Sadar, Gaya. 2. Bare perusal of the F.I.R., conld1f1ed in Annexure 1, shows that it has been lodged by the Supply Inspector, Sadar, Gaya as the dealer failed to produce any paper relating to purchase challan etc. and also the licence in connection with the items, referred to in the F.I.R. found in the godown. 3. Learned counsel for the petitioner contended that in view of the Government notification contained in G.S.A. 49 dated 17th October, 1985, which fixes the stock limits of the Trade Articles under clause 3 of the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as 'the Unification Order'), pulses edible oilsees and edible oils are excluded for the purposes of said Order in the cities mentioned therein, including Gaya. Learned counsel submitted that since the present matter relates to the occurrence at Gaya, there has been no violation of the Unification Order and thus no case for action under section 7 of the Act is made out. As such, according to him, the {1ognizance taken under section 7 of the Act, in the facts and circumstances of the present case, is bad in law and the entire proceeding is fit to be quashed. In support of this, he placed reliance on the order of the Division Bench of this Court in the case of Shankar Kumar Vs. State of Bihar (Cr. Misc. No.1 045 of 1987, disposed of on 24.6.1996), contained in Annexure 3. He also placed reliance on a judgment of the Division Bench of this Court in the case of Rajesh Trading Campany Vs. State of Bihar, reported in 1988 PLJR 463. 4. On the other hand, learned counsel for the State submitted that none of the said decisions is applicable in the facts and circumstances of the present case. He also placed reliance on a judgment of the Division Bench of this Court in the case of Rajesh Trading Campany Vs. State of Bihar, reported in 1988 PLJR 463. 4. On the other hand, learned counsel for the State submitted that none of the said decisions is applicable in the facts and circumstances of the present case. According to him, as per clause 3 of the Unification Order, no dealer can, after the commencement of this Order, carryon business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule I except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the said Order. He contended that it is true that under its first proviso, no licence is required for a dealer who stores for sale at anyone time the trade articles, in quantities not exceeding the limits as may be prescribed by the State Government with prior concurrence of the Central Government for any trade article from time to time and as per 1985 notification, referred to by the learned counsel for the petitioner, the stock limit relating to pulses, edible oilseeds and edible oil in Gaya is excluded. from the storage limit but, according to him, in the present case, the question is not of storage of the edible oils exceeding the storage limit. According to him, the question is that under Clause 3 of the Unification Order, no dealer can carryon business of even purchase, sale besides storage for sale of any of the trade articles mentioned in Schedule I except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the Licensing Order. It is contended that under its second proviso, a dealer holding a valid licence of trade articles under various Licensing Orders mentioned in Schedule III was required to obtain a licence for the same trade articles under the Licensing Order up to the 15th April, 1985, i.e.,' the commencement of the said Order and his existing licence was deemed to be a licence issued to him as a dealer under the Unification Order up to the said date. Thus, he contended that the allegation is not with respect to storage of the edible oils referred to in the F.I.R., rather the allegation is that i the dealer has failed to produce any paper, t account, receipt, challan and even the licence in connection with his business and the store premises and thus charged him for storing and selling the edible oils without licence, which amounts to violation of the Unification Order. According to him, the 17th October, 1985 Notification, which has' been issued in exercise of the power under section 3 of the Act, simply fixes the stock limits of the Trade Articles under clause 3 of the Unitification Order and for that purpose the edible oils are excluded in the Cities mentioned in paragraph 14 which includes Gaya and not that such dealer is not required to take licence itself under clause 3 of the Unification Order. 5. Learned counsel for the petitioner, in reply, submitted that the Division Bench of this Court in the case of Rajesh Trading Company (supra) has held that Clauses 2(p), 2(u) and 3 of the Unification Order do not apply where no notification fixing storage limit has been, issued and, as such, a person is not required to take licence under Clause 3 of the Unification Order. 6. I am unable to accept the said submission of the learned counsel for the petitioner. In the case of Rajesh Trading Company (supra), the Division Bench was dealing with the contention that once the article seized was found to be gram seed, there is no order under section 3 of the Act that covers it and the seizure and the consequent confiscation proceeding as also the impugned order was entirely misconceived and is bad in law. The other contention was 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 required by Clause 2(u) of the Unification Order, which had come into operation by then. On second poi nit, the Division Bench did not consider it necessary to go into any great detail because the matter had received finality on the concession made by the Advocate General himself in Cr. Misc. On second poi nit, the Division Bench did not consider it necessary to go into any great detail because the matter had received finality on the concession made by the Advocate General himself in Cr. Misc. No. 3284 of 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 then. On the first point, the Division Bench found that once it was found that the article seized was gram seed and not gram then, even though the petitioner did not get it analysed at the time of purchase, a step which was not required to be taken in law, it cannot be treated as gram by juristic interpretation of the District Magistrate and once it was found to be gram seed, it could not be seized and the confiscation proceeding started in the manner done and for the reasons stated by the District Magistrate, the petitioner can hardly be said responsible for the lapses on the part of the Biscomaun or the Collector. 7. In so far as the order of the Division Bench in the case of Shankar Kumar (supra), contained in Annexure 2, relied upon by the learned counsel for the petitioner is concerned, this Court finds that the question involved was with respect to fixation of the storage limit in relation to stock of edible oil and the Division Bench on consideration of storage limit in relation to the stock of edible oil under the Unification Order held that it was fixed in relatior to 'A Class and 'B' Class Cities out but as 'A' Class and 'B' Class Cities have not been defined, the Unification Order in relation to edible oil will not be workable, and, further relying upon a catena of decisions of this Court that when Unification Order is not workable, a person cannot be prosecuted for violation of its provisions, held that the prosecution of the petitioner for violation of the provisions of the Unification Order is unwarranted. 8. Learned counsel for the petitioner has not been able to show from the Unification Order providing for any storage limit in relation to stock of edible oil in 'A' Class and 'B' Class Cities. 8. Learned counsel for the petitioner has not been able to show from the Unification Order providing for any storage limit in relation to stock of edible oil in 'A' Class and 'B' Class Cities. It is only under 1985 Notification, referred to above, issued udner section 3 of the Act that the stock i limit of the trade articles under clause 3 of the Unification order has been fixed with respect to Class 'B' and Class 'C' Cities, with which we are not concerned in the facts and circumstances of the present case in view of the nature of offence alleged in the F.I.R. 9. Learned counsel for the petitioner has also cited the order of the Division Bench of this Court passed in Cr. Misc. No. 1745 of 1990 in which the v21idity of the order passed by the learned Special Judge, E.C. Act, Samastipur in G.R. Case No. 0010 of 1989 taking cognizance against the petitioner under section 7 of the Act was challenged. In the said case an inspection was conducted in the premises of the petitioner and on inspection of 101 quintals of rice, one quintal of wheat 75 Kgs. Of Khesari Dal and 30 Kgs. of paddy were seized. On being asked, the petitioner failed to produce any licence entitling him to carryon business in the said articles. A question was raised that even if the facts as asserted in the prosecution report are accepted in the prosecution report are accepted in their entirely, still no offence whatsoever is made out in the eye of law. It was submitied that for dealing in rice and wheat no licence was required at the material time. It was submitted on behalf of the petitioner that the charging clause 3 of the Unification Order provides for obtaining of the licence either by''3 wholesale dealer or a retail dealer as defined under clause 2(p) and clause 2(u) of the Unification Order and the said definition clauses could have been made operative only by prescribing the outer storage limits for the trade articles in which a dealer intended to carryon business. The Division Bench on consideration of various notifications as on the relevant date held that on the date of occurrence pertaining to the said case i.e., on 9.6.1989, G.S.R. 57 dated 10.11.1986 was holding the field whereby no licence was required for carrying on business in rice and wheat. The said Division Bench judgment has no application to the facts of the present case as in the present case the question is not of a wholesale or a retail dealer in respect of rice. and wheat. 10. The question involved in the present case is completely different; as to whether a dealer after the commencement of the Unification Order can carryon business of purchases, sale or storage for sale of any of the trade articles mentioned in Schedule I except under and in accordane with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the Unification Order. 11. Part 'D' of Schedule I, which deals with edible oils, includes mustard oil, ground nut oil hydrogenated vegetable oil like refined etc., which are the items for which aforementioned papers and licences were not produced by the accused-petitioner, who is the owner of Om Dal Mill. 12. 'Dealer' is defined in sub-clause (e) of clause 2 of the Unification Order and it means a person, a firm, an association of persons or a Co-operative Society other than a National and State level Co-operative Society, engaged in the business of purchase, sale or storage for sale 0 any trade article whether or not in conjunction with any other business and includes his representative or agent except those mentioned in sub-clauses (i), (ii) and (iii), with which we are not concerned in the present case. 13. Clause 3 of the Unification Order provides. that no dealer shall after the commencement of the said Order carryon business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule 1 except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the said Order. that no dealer shall after the commencement of the said Order carryon business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule 1 except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the said Order. Under its first proviso,• no licence is required for a dealer who stores for sale at anyone time the trade articles, in quantities not exceeding the limits as' may be prescribed by the State Government, with prior concurrence of the Central Government for any trade article from time to time. Sub-clause (2) also deals with the storage of any trade article at anyone time in quantities exceeding the limits prescribed in sub-clause (1). 14. The Governor of Bihar in exercise of the power conferred by section 3 of the Act, vide order contained in G.S.R. 49 dated 17th October, 1985, has fixed the stock limit of the trade articles under clause 3 of the Unification Order and, according to paragraph 14, the term 'B' class cities mentioned therein includes Gaya for the purposes of the' said Order to exclude the provisions relating to pulses, edible oilseeds and edible oils; meaning thereby that there is no stock limit fixed for storage of the said articles under clause 3 of the Unification Order and not that the provisions relating to the said articles are completely excluded from application of the Unification Order itself in 'B' class cities mentioned therein, which also includes Gaya. 15. It is not the case of the petitioner even in this Court that he is not a dealer as defined in sub-clause (e) of clause 2 of the Unification Order. The Unification Order has been issued by the Government of Bihar in exercise of the power conferred by section 3 of the Act read with various orders of the Government of Bihar with prior concurrence of the Central Government. As such every dealer, who carries on business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule I, is required to take licence except those excluded under the first proviso for storage for sale of trade articles of which quantity at anyone time does not exceed the limits as may be prescribed by the State Government. 16. 16. In the present case, the petitioner has not been charged with possessing the trade articles in question beyond the storage limit. The charge is that the dealer has failed to produce any paper, account, receipt, challan and even the licence in conr1E;Jction with his business and the store premises and that too not only for storing but also for selling the edible oils without licence, which is in violation of the Unification Order. 17. Section 7 of the Act provides for the penalties for the offences if any person contravenes any Order made under section 3 and the Unification Order has been issued in exercise of the power conferred by section 3 of the Act. As such, this Court does not find any substance in the submission of the learned, counsel for the petitioner that in the facts and circumstances of the present case, no offence under section 7 of the Act is made out. Thus, I do not find any error either in the order taking cognizance under section 7 of the Act or for quashing the proceeding initiated for contravention of the said provision. 18. The miscellaneous application, thus, has no merit and is, accordingly dismissed.