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Jharkhand High Court · body

2009 DIGILAW 1420 (JHR)

Arun Choudhury v. State of Jharkhand

2009-11-11

R.R.PRASAD

body2009
JUDGMENT : As the issue involved in both the applications is same and similar and the parties are also same, both these applications were heard together and are being disposed of by this common order. In a case bearing W.P.(Cr.) No.401 of 2009, first information report of Jharia P.S. case no.231 of 2009 (G.R.No.2746 of 2009) instituted under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’) against the petitioner has been sought to be quashed whereas in other application bearing W.P.(Cr.) no.364 of 2009, notice issued on 10.9.2009 under Section 6 B of the Act calling upon the petitioner to show cause as to why article (sugar) seized in connection with the case, bearing Jharia P.S. case no.231 of 2009 be not confiscated has been sought to be quashed. The facts giving rise these applications are that on 27.8.2009, a team consisting of Sub-Divisional Officer, Dhanbad, Executive Magistrate, Supply Inspector and others raided the shop being run as M/s. Shakti Enterprises belonging to the petitioner and found 152 quintals of sugar stored over there which was seized. Thereupon, the informant, Supply Inspector, Jharia lodged a case which was registered as Jharia P.S. case no.231 of 2009 under Section 7 of the Act for contravention of the provision of the Unification Order and also for contravention of the provision of the Jharkhand Essential Commodities (Price and Stock Display) Order, 1977 as the stock of sugar, according to the case of the prosecution, had not been displayed outside the shop. Learned counsel appearing for the petitioner submits that on the allegation of storing sugar to the extent of 152 quintals which, according to the prosecution, is excess than the stock limit fixed under Notification No.1645 dated 12.8.2009 but, in fact, it is not in excess, the case has been registered for the contravention of the provision of the Unification Order and also for the contravention of the Price Display Order without having any sanction from the competent authority to prosecute under Section 7 of the Act for contravention of the provision of the Essential Commodities (Price and Stock Display) Order and as such, prosecution not only for contravention of the provision of the Essential Commodities (Price and Stock Display) Order is bad but even prosecution for violation of the provision of the Unification Order is bad as the Notification No.1645 dated 12.8.2009 had never been published in the Gazette and under this situation, not only first information report is fit to be quashed but also notice dated 10.9.2009 under which confiscation proceeding has been contemplated to be initiated is bad and consequently, sugar seized in connection with the aforesaid case be released in favour of the petitioner. Learned counsel further submits that almost in similar situation, first information report of Kotwali (Pandra) P.S. case no.584 of 2009 instituted under Section 7 of the Essential Commodities Act ha been quashed by this Court in a case of Gauri Shankar Saboo vs. State of Jharkhand and another A counter affidavit has been filed on behalf of the State in W.P.(Cr.) No.364 of 2009 wherein it has been stated that as the stock of the sugar was found in the business premises of the petitioner more than storage limit, the petitioner has rightly been prosecuted and that Notification No.1645 dated 12.8.2009 has widely been published for information to all concerned in all the local newspapers and as such, prosecution never gets vitiated even if the said notification has not been published in the Gazette. In the facts and circumstances, I feel it appropriate to trace the background under which present notification, bearing no.1645 dated 12.8.2009 has been issued. After the enactment of the Essential Commodities Act, 1955, State of Bihar in exercise of power delegated to it under Section 3 of the Act was pleased to issue and promulgate Bihar Trade Articles (licenses Unification) Order, 1984. After the enactment of the Essential Commodities Act, 1955, State of Bihar in exercise of power delegated to it under Section 3 of the Act was pleased to issue and promulgate Bihar Trade Articles (licenses Unification) Order, 1984. The Unification Order has defined retail dealer as well as wholesale dealer in clause 2(p) and clause 2 (u) respectively. According to clause 3 of the Unification Order, no dealer can carry on 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 this Order. Clause 4 of the Unification Order deals with the grant of licence on payment of fee prescribed in Schedule IV. Clause 18 of the Unification Order provides for restriction on the possession of trade articles in quantity exceeding the limit to be fixed by the State Government. Subsequently, the Central Government in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955 issued an order named as Removal of (Licensing requirements stock limits and Movement Restrictions) on specified Foodstuffs Order, 2002 whereby restriction earlier put on the matter of purchase, stock, sell, transport etc. on wheat, paddy/rice etc. was removed and thereby dealers were free to deal in the said food grains. However, the Central Government, vide its Central Order No.S. O. 1373 (E) dated 29.8.2006 made certain amendments in the aforesaid order whereby stipulation made in the aforesaid order with respect to sale, supply, storage, distribution etc. was kept in abeyance initially for six months which under different orders were extended time to time. Under that situation, the Secretary, Department of Food, Public Distribution and Consumer Affairs in purported exercise of power conferred under Section 3 of the Act, without having concurrence of the Central Government issued notification bearing no.1645 dated 12.8.2009 whereby Control Order, 1984, meaning thereby Unification Order got revived and consequently, stock limit for food grains such as, rice, paddy, pulses, edible oil, sugar etc were fixed but that notification admittedly, was never published in the Official Gazette, though under Section 18 of the Unification Order it should have been issued with prior concurrence of the Central Government and the notification should have been published in the Official Gazette. The provision as contained in clause 18 of the Unification Order, 1984 reads as under: “18. Restriction on possession of trade articles-No person shall, either by himself or by any person on his behalf, store or have in his possession at anytime any trade article mentioned in Schedule I and Schedule II in quantity exceeding the limits fixed – (i) under an order issued by the Central Government, or (ii) by the State Government with prior concurrence of the Central Government by issuing a notification in Official Gazette from time to time.” Admittedly, the aforesaid notification has neither been published in the official Gazette nor anything is on record to show that said notification has been issued with prior concurrence of the Central Government. Moreover, the said notification as required under the aforesaid clause has never been issued by the State Government, rather it has been issued by the Secretary of the department. The intendment of the notification being published in the Official Gazette is that in case of fixation of stock limit the public must come to know the same. Therefore, it would not be operative unless it is published in the Official Gazette and mere printing of such notice in the newspaper, as has been done by the authority cannot be equated with the publication of the Official Gazette. Thus, issuance of the notification prescribing stock limit of the food grains including sugar never seems to have been done in accordance with the provisions of he Unification Order and on that account, any prosecution on the ground of having excess food grains/ sugar than the stock limit fixed would certainly be quite illegal. That apart, the prosecution for contravention of the provisions of the display order also seems to be bad on account of the fact that before launching prosecution against the petitioners, no sanction has been obtained though under proviso to clause (6) of the display order, it was required to be obtained from he competent authority. That apart, the prosecution for contravention of the provisions of the display order also seems to be bad on account of the fact that before launching prosecution against the petitioners, no sanction has been obtained though under proviso to clause (6) of the display order, it was required to be obtained from he competent authority. The proviso to clause (6) of the display order reads as follows: “ Provided that no prosecution shall lie against a person for contravention of any of the provisions of this Order unless the same has been sanctioned by the District Magistrate or Special Officer, In-charge Rationing or Additional District Magistrate (supply) or Sub-divisional Magistrate with a limit of their respective local jurisdiction.” Thus, proviso makes it clear that no prosecution shall lie against any person for contravention of any of the provisions of the order unless the sanction has been obtained from competent authority. This proposition of law has been laid down in a case of M/s. Mithila Cycle Centre vs. State of Bihar [1990(2) PLJR184]. The said principle has been reiterated in a case of Mali Ram Agarwal vs. State of Bihar and others [2001(1) East Cr. Cases 24 (R.B)]. Thus, the prosecution on account of contravention of the provision of the display order and also on account of contravention of the provision of Unification Order can certainly be said to be bad and at the same time any proceeding relating to confiscation of the article seized would be invalid. Under the aforesaid situation, continuance of the criminal proceeding against the petitioner would certainly amount to abuse of the process of law and, hence, first information report of Jharia P.S. case no.231 of 2009 is hereby quashed so far the petitioner is concerned. At the same time, notice dated 10.9.2009 issued under Section 6 B of the Essential Commodities Act contemplating to initiate confiscation proceeding in the aforesaid circumstances is also quashed. Consequently, article seized in connection with the said case is directed to be released forthwith in favour of the petitioner. In the result, both the applications are allowed.