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2009 DIGILAW 1073 (JHR)

Ashok Kumar v. State of Jharkhand

2009-08-04

PRASHANT KUMAR

body2009
ORDER In this application, petitioners have prayed for quashing the order dated 25.08.1989 passed by learned Special Judge, E.C. Act, Giridih, whereby and whereunder he took cognizance of the offence under Section 7 of the E.C. Act. 2. It is alleged in the First Information Report that on inspection of petitioners’ house on 25.04.1989 inspecting party had found 125 bags of rice (100 Quintals) kept in their residence for the purpose of black-marketing. It is then alleged that on query petitioners did not give any explanation regarding the said rice nor they furnish any paper for the same. It is also alleged that at that time, petitioners have been allotted a shop in market yard, but they had not shifted in that shop and were using to sell rice in black market from their own house. It further appears that police officer, after completing investigation, submitted charge-sheet on 16.04.1989 and thereafter, on 25.08.1989 impugned order has been passed. 3. It is submitted by Sri P. D. Agrawal, learned counsel for the petitioners that at the relevant time for dealing in rice no license required under the Unification Order. It is submitted that earlier vide notification No. GSR-49 dated 17.10.1985 stock limit prescribed for the wholesale dealers as well as for retail dealers, but the same has been omitted vide notification no. GSR 57 dated 10.11.1986. It is submitted that later on vide notification no. GSR 42 dated 21.11.1987 again stock limit prescribed. It is submitted that said notification has been challenged in Aditya Flour Mills (P) Ltd. and Others Vs. The State of Bihar, reported in 1990(2) PLJR, 143. It is submitted that in that case Hon’ble Patna High Court ( Ranchi Bench) quashed the aforesaid notification dated 21st November, 1987 on the ground that before issuing the same concurrence of Central Government had not been obtained. It is relevant to mention that again in Shibshankar Sah Vs. The State of Bihar reported in 1996(2) East Cr C 758 (Pat), a Division Bench of Hon’ble Patna High Court after following the aforesaid judgment come to the conclusion that as notification No. GSR 42 dated 21.11.1987 was declared ultra vires, the notification No. GSR 57 dated 10.11.1986 was holding the filed whereby no license required for carrying the business of rice and wheat. It appears that subsequently on 23.08.1990 vide notification No. GSR 13 dated 23.08.1990 the storage limit for keeping wheat or rice had been restored. It is submitted that thus there is no contravention of any control order on the date of inspection, hence, no offence under Section 7 of the E. C. Act is made out. 4. Learned APP, after going through the aforesaid judgments and notifications, had not controverted the aforesaid submissions. 5. Having heard the submissions, I have gone through the records of the case and the law. Admittedly, in the instant case, inspection was conducted on 25.04.1989 and on that day itself F.I.R. was lodged. It further appears that charge-sheet was submitted on 14.06.1989 and thereafter, on 25.08.1989 learned Court below took cognizance of offence. The allegation in F.I.R is that petitioners kept 125 bags of rice (100 Quintals) in their house without any license. 6. Question arose for consideration is whether on the date of occurrence license required for dealing in rice? Clauses 2(P) and 2(U) of the Bihar Trade Articles (Licenses Unification) order, 1984 define retail and wholesale dealers. The said definition could become operative only if the State Government prescribed the storage limit for retail and wholesale dealer. Till then no license required for doing business either as wholesaler or retailer. It is an admitted position that in the year 1985 the stock limit for keeping rice and wheat was prescribed vide notification No. GSR 49 dated 17.10.1985, but that was omitted by another notification no. GSR-57 dated 10.11.1986. It further appears that the said stock limit was again restored vide notification no. GSR-42 dated 21.11.1987, but the same was declared ultra vires and quashed by judgment delivered in Aditya Flour Mills (P) Ltd. and Others Vs. The State of Bihar (Supra). The aforesaid Judgment followed and approved by a Division Bench in Shibshankar Sah Vs. The State of Bihar (Supra). Another notification prescribing the stock limit was issued in the year 1990. Thus, it is clear that on the date of inspection and/or lodging of the F. I.R. i.e. on 25.04.1989, there was no prescribed limit for stocking of rice or wheat. In the said circumstances, in my view, on the date of inspection no license required under the unification order for dealing in rice. Thus, it is clear that on the date of inspection and/or lodging of the F. I.R. i.e. on 25.04.1989, there was no prescribed limit for stocking of rice or wheat. In the said circumstances, in my view, on the date of inspection no license required under the unification order for dealing in rice. Hence, there is no contravention of any control order, consequently no offence under Section 7 of the E. C. Act, is made out. 7. In view of the aforesaid facts the order taking cognizance is an abuse of process of Court therefore the same cannot be sustained. 8. In the result, this application is allowed, order dated 25.08.1989 in connection with Giridih (M) P. S. Case No. 74 of 1989 corresponding to G. R. Case No. 17 of 1989 (T. R. Case No. 878 of 2005), at present pending in the Court of Sub-Divisional Judicial Magistrate, Giridih, is quashed.