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2007 DIGILAW 606 (PAT)

Prabhu Prasad Gupta v. State Of Bihar

2007-03-23

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. The sole appellant was sought to be prosecuted under the Essential Commodities Act (hereinafter referred to as "the E.C. Act") for contravention of the provisions of the Bihar Essential Articles (Display of Prices and Stock) Order, 1977 (hereinafter referred to as "the Display Order") and Lubricating Oils and Greases (Processing. Supply and istribution Regulation) Order, 1987 and having been found guilty by judgment and order dated 20.11.1992 passed by Sri Shashi Kumar Choudhary, the then Special Judge (E.C. Act), Saharsa, in Special Case No. 24 of 1989 arising out of Birpur PS. Case No. 81 of 1989, he was sentenced to undergo R.I. for 9 months and to pay a fine of Rs. 1000.00 and in default thereof to suffer further R.I. for one month. It was further directed that the period undergone as undertrial prisoner would be adjusted in the sentence. Aggrieved by the said judgment and order this appeal has been preferred by the sole appellant. 2. The prosecution was set in motion on the basis of a written report (Ext. 3) submitted by one Kameshwar Nr. Singh, Supply Inspector, Birpur, on 1.7.1989 and on the basis thereof a formal F.I.R. (Ext. 5) was drawn up. In the written report it has been alleged, inter alia, that the Sub Divisional Officer, Birpur having received information, to the effect, that within the town area of Birpur certain businessmen were dealing In mobil, grease and other things without license and were selling them to businessmen across the border, directed the informant to raid the premises of such businessmen and accordingly the business premises of the accused appellant running in the name of M/s Navin Automobile, Birpur, was raided on 30.6.1989 and 335 liters of mobil kept in 67 tins each of 5 liters and 10 tins each containing one liter of grease were seized under a seizure list (Ext. 2). Having seized the articles aforesaid he handed them over to the accused for safe custody till further orders. The informant also seized Ledger Books, Cash Memos and the cash memos of where these things had been procured. It was also detected that the accused did not use the stock register and signboard for displaying the stock position and price. It is also said that there were no register on schedule form nor any of the Register contained any certificate of paging by any official. It was also detected that the accused did not use the stock register and signboard for displaying the stock position and price. It is also said that there were no register on schedule form nor any of the Register contained any certificate of paging by any official. It has further been alleged that the accused had no license for selling mobil and grease products, when the law provided selling of motor oil without license as a punishable offence. It was also mentioned that sanction for prosecution had been received from the appropriate forum. On the basis of the written report Birpur RS. Case No. 81 of 1989 was registered against the appellant. 3. In support of its case the prosecution sought to examine 4 witnesses in all. Certain documents were also filed in evidence to add impetus to the prosecution case. PW. 1 Harihar Shah was declared to be hostile as he did not support the prosecution case. However, RW. 2 the informant Kameshwar Nr. Singh (RW. 3), Jagat Lal Das, a peon in Birpur Sub-Divisional Office (P.W. 4), Ramapati Mallick the Investigation Officer of the case were examined and they sought to support the prosecution case. The learned trial Judge on consideration of the materials on record and the submissions advanced by the parties recorded a verdict of guilt against the appellant herein and sentenced him accordingly. 4. It has been submitted on behalf of the appellant that he was holder of a license to manufacture grease and there was no proof of any sale. This as a matter of fact has been accepted by the District Magistrate in the confiscation proceeding in Confiscation Case No. 30 of 1990 vide order dated 11.4.1990 in which he has not only released the seized articles but also put an end to the confiscation proceeding. In this connection it was sought to be submitted that for manufacture of grease, mobil is required and at no point of time was the appellant engaged in the trade of selling mobil and grease. In support of his submission he has relied on Exts. A and B which are the Permanent Certificate and Registration Certificate issued by the Govt, of Bihar, District Industries Centre, Saharsa declaring M/s Navin Enterprises as a Small Scale Industry for production of industrial grease. In support of his submission he has relied on Exts. A and B which are the Permanent Certificate and Registration Certificate issued by the Govt, of Bihar, District Industries Centre, Saharsa declaring M/s Navin Enterprises as a Small Scale Industry for production of industrial grease. It was also submitted that since the appellant had a valid license for manufacture of grease of which mobil was an essential component, the presence of mobil in his premises would in no case constitute an offence. The further submission on behalf of the appellant was that although there was a reference in the written report of the Supply Inspector that he had received sanction for prosecution from competent authority no such sanction order has been brought on record. 5. Be that as it may this appeal has to succeed on a very important question of law. The Lubricating Oils and Greases (Processing, Supply and Distribution Regulation) Order, 1987 came into force by Notification No. G.S.R 233(E) dated 20.3.1987 and sub-clause (b) of Clause 2 reads as under: "Lubricating oils and grease shall have the meaning assigned to them in item no. 11A of the first schedule to the Central Excise and Salt Act, 1944 (1 of 1944) and shall include any specifically oil falling under the item no. oil of that schedule." 6. In looking into the first schedule of the Central Excise and Salt Act, 1944 it would appear that the same has been omitted by the Central Excise Tariff Act, 1985 (Act 5 of 1986) vide Sec. 4 thereof w.e.f. 28.2.1986 vide G.S.R. 89(E) dated 5th February, 1986. 7. In that view of the matter the very definition of lubricating oils and greases remains undefined and in a fluid state. Since the very meaning assigned to them in the Central Excise and Salt Act has been omitted, it would, thus, follow that in the absence of the definition of the word "Lubricating Oils" and "Greases" the Lubricating Oils and Greases (Processing, Supply and Distribution Regulation) Order, 1987 would not be operative and a prosecution for contravention of the said order would not be maintainable. 8. There is another aspect of the matter. 8. There is another aspect of the matter. Sub-clause (a) of Clause 2 of the Display Order, 1977 defines "articles" as any essential commodity mentioned in Schedules 1 and 2 appended to this order and includes any other articles to be declared so from time to time by the State Government or the Commissioner or the District Magistrate empowered by the State Government in this behalf ............................................................." As per Clause 3 thereof every dealer shall before commencement of the business on any day display at conspicuous place near the entrance of the business premises following..........................." From perusal of Schedules 1 and 2 appended to the said Display Order there is no mention of either lubricating oil or grease. In those circumstances a dealer dealing in lubricating oil or grease was not required to comply with the provisions of the Display Order. This being the position, it cannot be said that the appellant herein had violated the provisions of the Display Order. 9. Due regard being had to the facts and circumstances of the case, prosecution of the appellant was vitiated. Accordingly the appeal succeeds and the impugned judgment and order dated 20.11.1992 is hereby set aside. The appellant is discharged from the liabilities of his bail bonds.