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2014 DIGILAW 815 (PAT)

Vijay Kumar More @ Vijay More v. State of Bihar

2014-07-25

ASHUTOSH KUMAR

body2014
ASHUTOSH KUMAR, J.:–Heard Mr. Ramesh Kumar Agarwal, learned counsel for the petitioners and Mr. Jharkhandi Upadhaya, learned APP for the State. 2. The petitioners are Depot Manager and clerk respectively of M/s Sri Ram Foods & Fertilizer Industries, New Delhi, Sikandarpur, Muzaffarpur. 3. M/s Sri Ram Foods & Fertilizer Industries is one of the units of D.G.M Limited, which is a public limited company, and carries on business amongst other things, of manufacturing Vanaspati and other refined oil. 4. The prosecution case is that when the business premises of the firm was raided on 25.09.1989 (Monday) at 9.a.m, it was found that the notice displayed information with respect to stock till Saturday i.e., 23.09.1989. No information was displayed with respect to the stock as on 25.09.1989 i.e., the day of raid. Consequently, even the stock register was not updated and nothing was stated after the opening balance of 23.09.1989. On physical verification, certain stocks of Vanaspati were found to be in excess of what was displayed as information on the notice board. On the basis of such information having been collected after the raid of the premises, a case was instituted vide Muzaffarpur P.S. Case No. 331 of 1989 under Section 07 of the Essential Commodities Act, 1955 (hereinafter referred to as the ‘Act’). The police after investigation submitted chargesheet whereupon cognizance was taken. The petitioners challenged the order of cognizance, but to no avail. The aforesaid application was withdrawn in order to enable them to raise the grounds, agitated at that time, at the appropriate stage, namely, at the stage of framing the charge. 5. The petitioners preferred the application of discharge before the Court below which has been rejected vide order impugned. 6. It has been submitted on behalf of the petitioners that on 23.09.1989 (Saturday), during the course of business hours, 840 packets of 2 kgs, 2160 packets of 1kg polyjar and 3584 packets of 1kg were received in the business premises from the Head office. It is because of that the said quantities of Vanaspati was mentioned in the remarks column of the Display board as ‘receipts’. 7. Learned counsel for the petitioners points out at Annexure 10A to the supplementary affidavit which shows that such quantities were received from the Head office and therefore they were shown on the display board. 8. It is because of that the said quantities of Vanaspati was mentioned in the remarks column of the Display board as ‘receipts’. 7. Learned counsel for the petitioners points out at Annexure 10A to the supplementary affidavit which shows that such quantities were received from the Head office and therefore they were shown on the display board. 8. It is further submitted that on 23.09.1989 i.e., on the same day 1600 packets of 1 kg pack were sold to a Dealer of Motihari. In support of such contention, the petitioners have brought on record Annexure 3, which is invoice no. 116, dated 23.09.1989. Thus, it has been submitted that in view of the aforesaid receipt and the sale of Vanaspati on the same day when it was received, there was no shortage or excess in the stock of Vanaspati. Since Sunday is a weekly holiday, the premises were closed as no business transaction takes place on Sunday. It has been submitted that business hours of the firm commences from 10 a.m. Since the raid in the premises of the petitioners were conducted and stocks verified before the commencement of business hours, therefore, there were some anomalies for which the petitioners are being prosecuted in the present case. 9. Condition 3 (d) of the license in Form C issued under the provisions of Bihar Trade Articles (Licenses Unification) Order, 1984 states:– “(d) The licensee shall complete the entries in the stock register for each day latest by the beginning of the transactions on the following day unless prevented by reasonable cause the burden of proving which shall lie upon him.” 10. From bare reading of the condition 3 (d) of the license referred to above, it would appear that a licensee has a liberty to complete his records on the commencement of the transactions on the following working day, unless he is prevented by reasonable cause. In that event, the burden of proving things or the cause would be upon the licencee. The petitioners further state that Annexure 10A which is the certified copy of the notice Board shows that same quantities of Vanaspati was received in the premises from the Head office on 23.09.1989. 11. In that event, the burden of proving things or the cause would be upon the licencee. The petitioners further state that Annexure 10A which is the certified copy of the notice Board shows that same quantities of Vanaspati was received in the premises from the Head office on 23.09.1989. 11. The petitioners also raised a grievance that since no sanction has been granted by the prescribed authority, as required under the proviso to clause 6 of the Bihar Essential Articles (Displayed the price and Stock) order 1977, therefore, even the order taking cognizance and consequently, entire case is bad. The prosecution thus, is not maintainable at all. In the case of Braj Kishore Prasad Vs. State of Bihar reported in 2006 (4) PLJR 115 , it has been held that since sanction is contemplated with respect to any prosecution in regard of display order, the prosecution cannot be launched without such sanction. Similarly in the case of Gopal Das Bhadani Vs. The State of Bihar reported in 1989 BRLJ 1 (Reports) it has been held that :– “4. proviso to clause (6) of the Display Order says that ‘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 the special Officer Incharge, Rationing or Additional District Magistrate (supply) or Subdivisional Magistrate, within the limits of their respective local jurisdiction. This shows that the fundamental requirement for prosecuting a person for the alleged offence committed either under the Bihar Essential Articles (Display of Price and Stock) Order, 1977 or Bihar Food-grains Dealers Licensing Order, 1967, is that sanction must be obtained, without which no valid prosecution can be launched against him. It is admitted position in this case that no sanction has been obtained by the competent authority or by any authority. Therefore, the taking of cognizance or the criminal prosecution against the petitioners suffers from non-compliance of the mandatory requirement of the proviso to the aforesaid clause and as such the order taking cognizance and the whole criminal prosecution against the petitioner are bad and without jurisdiction”. 12. It appears that the prosecution of the petitioners in the instant case therefore, is without valid cause and is bad also for want of sanction, which is mandatory. 13. 12. It appears that the prosecution of the petitioners in the instant case therefore, is without valid cause and is bad also for want of sanction, which is mandatory. 13. In view of the aforesaid discussions, the order dated 10.09.2012 is held to be bad and is therefore set aside. The application stands allowed. ?