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2017 DIGILAW 1178 (PAT)

Bharat Sugar Mill v. State of Bihar

2017-09-06

RAJEEV RANJAN PRASAD

body2017
RAJEEV RANJAN PRASAD, J.:–Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State. 2. M/s Bharat Sugar Mill through its Executive President Sri Bishnu Kumar Surekha, Sri Bishnu Kumar Surekha and Sri Subhash Chandra Srivastava are the petitioners who being aggrieved by the order taking cognizance and issuance of summons dated 10.06.2014 passed by learned Judicial Magistrate, 1st Class, Motihari, Sadar, East Champaran in Case No. O.C. 21/2014 have challenged the same in the present application under Section 482 Cr.P.C. By the impugned order, cognizance has been taken under Section 420 of the Indian Penal Code, Sections 25 and 26 of the Legal Metrology Act, 2009, Section 39, 43, 44 and 52 of the Bihar Sugarcane Act, 1991, and under Rule 13(b) & (c), 22, 23 & 24 of the Bihar Sugarcane Rules. 3. Petitioner no. 1 is a Sugar Mill located at Sidhwalia in the District of Gopalganj, which is said to be engaged in the business of production of sugar through sugarcane by Vacuum Pan Process (VPS). It is stated that the transaction of the business of the petitioner no. 1 is covered under the provisions of the Special Enactment of the Bihar Sugarcane (regulation of supply and purchase), Act, 1991 (hereinafter referred to as the “Cane Act”), read with the Bihar Sugarcane (regulation of supply and purchase) Rules, 1978 (hereafter referred to as the “Cane Rules”). Petitioner no. 2 is the Executive President and petitioner no. 3 is the Cane Manager of petitioner no. 1. 4. According to the petitioners, the petitioner no. 1 is obliged to establish Purchase Cane Centre in the area of the villages reserved in their favour so as to enable the farmers to supply the sugarcane to the said Purchase Centre from where the sugarcane is brought to the Mill. One of such Purchase Centres has been established in Ramgarh Mahuawa, P.S. – Piprakothi in the District of East Champaran, popularly known as Ramgarh Mahuawa Purchase Centre. 5. The petitioners are being prosecuted on the basis of a complaint (Annexure-2 series to the present application) lodged by Cane Officer, Motihari on being authorized by the Cane Commissioner, Government of Bihar. One of such Purchase Centres has been established in Ramgarh Mahuawa, P.S. – Piprakothi in the District of East Champaran, popularly known as Ramgarh Mahuawa Purchase Centre. 5. The petitioners are being prosecuted on the basis of a complaint (Annexure-2 series to the present application) lodged by Cane Officer, Motihari on being authorized by the Cane Commissioner, Government of Bihar. It has been alleged that M/s Bharat Sugar Mill, Sidhwalia has committed an offence punishable under Section 52 of the Cane Act, Section 419 & 420 of the Indian Penal Code, and also punishable under Sections 25 & 26 of the Legal Metrology Act, 2009. 6. The allegations are that of violation of the provisions of Sections 22, 23 and 24 of the Cane Act read with Rule 39, 43 & 45 of the Cane Rules as also violation of the departmental order no. 2108 dated 24.10.2013. According to the allegation there was lesser weighment of the sugarcane and the Transporter was realizing a sum of Rs. 7/- per quintal from the sugarcane farmers in the name of loading charge. A brief description of the allegations mentioned in Annexure-2 is that in violation of Section 44 of the Cane Act at Ramgarh Mahuawa Purchase Centre. Transporter Sri Sanjay Kumar Nishad and Weighment Clerk Yogendra Singh were realizing Rs. 7/- per quintal in the name of loading charge and there was lesser weighment of sugarcane by 20-25 kgs. These acts and omissions were also in violation of the departmental order no. 2108 dated 24.10.2013 and the provisions of the Acts and Rules as mentioned above. 7. Along with the complaint presented before the learned Judicial Magistrate, 1st Class, Motihari, Sadar, East Champaran giving rise to Case No. O.C. 21/2014, an inquiry report dated 25.12.2013 was also annexed. The inquiry report is part of Annexure-2 series. The Inspecting Team no. 2 first of all got three departmental vehicles weighed, at one Trinetra Dharma Kanta, NH28, Khajuria, East Champaran and obtained weighment receipt showing vehicle no. BR01BV-9372 as 11.80 quintals, vehicle no. BR01PB-2589 showing 17.40 quintals and vehicle no. BR05P-8656 being 18.45 quintals. The Inspecting Team visited different Purchase Centres, since we are concerned with only Ramgarh Mahuawa Purchase Centre, the relevant part of the inquiry report would only be referred to. BR01BV-9372 as 11.80 quintals, vehicle no. BR01PB-2589 showing 17.40 quintals and vehicle no. BR05P-8656 being 18.45 quintals. The Inspecting Team visited different Purchase Centres, since we are concerned with only Ramgarh Mahuawa Purchase Centre, the relevant part of the inquiry report would only be referred to. At Ramgarh Mahuawa Purchase Centre, when those three vehicles were weighed, it was found that the weight shown at the Purchase Centre was less by 20-25 kgs. on all the vehicles. It is alleged that during the ongoing inquiry at the Purchase Centre, the Weighment Clerk Sri Yogendra Singh was present. The difference in the weight was found which was ordered to be corrected. The farmers present at the Purchase Centre and the Purchase Centre Incharge Sri Yogendra Singh informed the Inspection Team that the transporter Sanjay Kumar Nishad was realizing Rs. 7/- per quintal in the name of unloading of sugarcane. The Inspection Team directed the local Sugarcane Officer to ensure that no unloading charge is realized and after obtaining explanation in this regard necessary legal action be taken. 8. It appears from the record that the Cane Officer prepared a complaint alleging violation of the Cane Act and other Acts and Rules as stated hereinabove and sent the complaint to the Sugarcane Commissioner, Bihar, in the department of Sugarcane Industry for the purpose of getting a prior authorization. The Cane Commissioner, Bihar vide his letter no. 494 dated 24th February, 2014 wrote to the Cane Officer, Motihari that in the light of his letter no. 23 dated 08.01.2014 prior authorization is being granted in terms of Section 53 of the Cane Act for filing the prosecution. This letter dated 24th February, 2014 as contained in Annexure-3 to the present application is a bone of contention which will be dealt in this judgment at appropriate stage. 9. Pursuant to the authorization received from the Cane Commissioner, Bihar the Cane Officer, Motihari vide his letter dated 5th April, 2014, sent the complaint petition to the Court of learned Chief Judicial Magistrate, Motihari. 9. Pursuant to the authorization received from the Cane Commissioner, Bihar the Cane Officer, Motihari vide his letter dated 5th April, 2014, sent the complaint petition to the Court of learned Chief Judicial Magistrate, Motihari. Learned Judicial Magistrate, 1st Class, Motihari, on receipt of the complaint perused the case record and held that there is prima facie material for charges under Section 420 IPC, Sections 25 & 26 of the Legal Metrology Act and Sections 39, 43, 44 and 52 of the Cane Act and Rule 13(b) & (c), 22, 23 and 24 of the Bihar Sugarcane Rules. 10. The learned Judicial Magistrate, 1st Class, Motihari took cognizance of the offences and directed to issue summons to the accused persons named in the column 1 of the complaint petition. In column 1 of the complaint petition apart from these petitioners there are two other accused namely, Sri Yogendra Singh, Weighment Clerk and Sri Sanjay Kumar Nishad, Transporter. These two accused person, who have been arrayed as accused no. 4 & 5 in the complaint petition, have not joined these petitioners in the present case. 11. Learned counsel for the petitioners in course of argument raised two fold contentions. It is his first submission that there is no proper authorization in favour of the Cane Officer, Motihari to lodge the present complaint, and therefore, the very locus standi of the complainant is seriously doubted by the petitioners. According to learned counsel, the order taking cognizance and issuance of summons is fit to be set aside on this ground alone. 12. The second and alternative argument of learned counsel for the petitioners is that in any case a bare perusal of the complaint together with the inquiry report would show that the offences as alleged and for which cognizance has been taken are not even prima facie made out against these petitioners, and there was no sufficient ground for the learned Magistrate to proceed against these three petitioners. 13. To substantiate his first submission, learned counsel for the petitioners has pointed out Section 53 of the Cane Act which reads as under:— “53. Institution of proceedings.—No prosecution under this Act shall be instituted except upon a complaint made in writing by an officer authorized in this behalf by the State Government.” 14. Learned counsel for the petitioners submits that the State Government, vide its notification no. Institution of proceedings.—No prosecution under this Act shall be instituted except upon a complaint made in writing by an officer authorized in this behalf by the State Government.” 14. Learned counsel for the petitioners submits that the State Government, vide its notification no. 85-012/69-C-1759 Patna dated 28.08.1973, has authorized an officer to the rank of a Cane Officer to lodge a complaint but only after getting prior authorization from the Cane Commissioner, Bihar. According to him, in the present case, the order as contained in Annexure-‘3’ to the present application by which the Cane Commissioner, Bihar sent his prior approval/authorization to the Cane Officer, Motihari for filing the present complaint is not a speaking order because it does not show any application of mind by the Cane Commissioner, Bihar on the complaint sought to be filed in the present case. 15. In this regard, learned counsel for the petitioners placed reliance upon a judgment of a coordinate Bench of this Court in the case of Md. Iqbal Ahmad and Others Vs. State of Bihar reported in 1988 BBCJ 611 ; which has been recently followed by a coordinate Bench of this Court in Cr. Misc. No. 39390/2013 (Bishnu Kumar Surekha @ B.K. Surekha and others Vs. State of Bihar and Anr. decided on 08.04.2017). 16. On the other hand, learned counsel representing the State submits that a bare reading of Section 53 of the Cane Act would show that the petitioners cannot import a concept of sanction of prosecution under Section 53 of the Cane Act. According to him, what is required under Section 53 is a proper authorization in favour of the officer who has lodged the complaint. He also submits that in the case of Md. Iqbal Ahmad and others, the fact would show that the Cane Officer had sent a copy of the complaint on which the Cane Commissioner, Bihar simply wrote “approved”. In the said case it was held that there was no proper compliance of Section 53 of the Cane Act as it was necessary to have a prior speaking order of the Cane Commissioner showing authorization and merely endorsement of approval on the complaint petition would not have been taken as a speaking order. 17. Learned counsel submits that the case recently decided by a coordinate Bench of this Court on 08.04.2017, as noted above, had also the same facts and situation. 17. Learned counsel submits that the case recently decided by a coordinate Bench of this Court on 08.04.2017, as noted above, had also the same facts and situation. In the present case, the facts are entirely different inasmuch as it is not a case in which the Cane Commissioner, Bihar has simply endorsed ‘approval’ on the complaint petition. The present case is a case filed by a Cane Officer only after getting a prior approval of authorization in his favour which is apparent from Annexure-3 to the present application. 18. Learned counsel for the State would submit that a reading of Annexure-3 to the present application would show that the Cane Commissioner, Bihar has duly authorized the Cane Officer. Now in the present situation, the petitioners cannot be allowed to argue that it is not a speaking order. 19. The submission is that at this stage for the purpose of authorization alone, the Cane Commissioner, Bihar was not obliged to disclose his mind in so many words on the merit of the allegation. Section 53 of the Cane Act only required a prior authorization and the said requirement has been duly fulfilled vide Annexure-3 to the present application. 20. I have considered the submissions advanced on this point on behalf of the parties and have perused the judgments referred above, in my opinion, the case of Md. Iqbal Ahmad (supra) and Bishnu Kumar Surekha (supra) are clearly distinguishable on the facts of the present case. In those cases the Cane Commissioner, Bihar merely made an endorsement of approval, whereas in the present case, the Cane Commissioner, Bihar has vide his letter dated 24th February, 2014 authorized the Cane Officer, Motihari to file the complaint. Once this authorization has been issued in favour of the Cane Officer, Motihari, the complaint presented by him cannot be thrown out on the ground of locus standi. Section 53 of the Cane Act cannot be equated with the provisions of a statute which requires sanction of prosecution. It is not a case where sanction for prosecution is required. In this case, according to this Court, a requirement of Section 53 of the Cane Act has been duly fulfilled. Thus, the first submission advanced on behalf of the petitioners would fail and is hereby rejected. 21. Now, coming to the second submission. It is not a case where sanction for prosecution is required. In this case, according to this Court, a requirement of Section 53 of the Cane Act has been duly fulfilled. Thus, the first submission advanced on behalf of the petitioners would fail and is hereby rejected. 21. Now, coming to the second submission. Learned counsel for the petitioners has taken this court through the inquiry report which forms basis of the complaint proceeding. It is his submission that on a bare reading of the inquiry report and the complaint petition, this Court would come to a conclusion that, in fact, there is no prima facie case of commission of the offences alleged against the present petitioners. He submits that in the complaint petition, there is no averment against these petitioners particularly petitioner no. 2 and 3. It is not stated as to how they are liable for the alleged acts and omissions, there is no concept of vicarious liability under Indian Penal Code, hence the impugned order is bad in law. 22. Learned Additional Public Prosecutor opposed this submission of the petitioners. According to him these petitioners are liable to be prosecuted for violation of the provision of the Act and Rules framed thereunder. 23. While examining this argument, this Court would take note of the relevant provisions of the Acts and the Rules which are said to be violated and for which summons have been issued against these petitioners. Section 420 of the Indian Penal Code reads as under:— “420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 24. The word “Cheating” has been defined under Section 415 Indian Penal Code, which is also quoted hereunder for a ready reference:— “415. The word “Cheating” has been defined under Section 415 Indian Penal Code, which is also quoted hereunder for a ready reference:— “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 25. Upon consideration, this Court finds that neither in the inquiry report nor in the complaint petition there is any allegation of cheating or dishonestly inducing the sugarcane farmers against these three petitioners. No doubt, the purchase centre has been opened/established by petitioner no. 1. Neither in the inquiry report nor in the complaint petition there is any allegation that the lesser weighment of sugarcane and charging of Rs. 7/- per quintal by the transporter were being done in connivance and in concert with the present petitioners. Both in the inquiry report and in the complaint petition, there are specific allegation against the Purchase Centre Incharge and the Transporter. There is not even a whisper as to how petitioner nos. 2 & 3 can be said to have committed any offence of cheating. Petitioner no. 2 is said to be the Executive President and petitioner no. 3 is the Cane Manager, both the inquiry report as well as the complaint petition are totally silent on their role, if any, in commission of the alleged offence. There cannot be a vicarious liability against them in an offence alleged under the provision of Indian Penal Code. It seems that they have been impleaded in the present complaint without there being any allegation against them. Thus, there is no averment/material to show a prima facie case under section 420 IPC against these petitioners. 26. Now, let us examine Section 25 and 26 of the Legal Metrology Act, 2009 which reads as under:— “25. It seems that they have been impleaded in the present complaint without there being any allegation against them. Thus, there is no averment/material to show a prima facie case under section 420 IPC against these petitioners. 26. Now, let us examine Section 25 and 26 of the Legal Metrology Act, 2009 which reads as under:— “25. Penalty for use of non-standard weight or measure.—Whoever uses or keeps for use any weight or measure or makes use of any numeration otherwise than in accordance with the standards of weight or measure or the standard of numeration, as the case may be, specified by or under this Act, shall be punished with fine which may extend to twenty-five thousand rupees and for the second or subsequent offence, with imprisonment for a term which may extend to six months and also with fine. 26. Penalty for alternation of weight and measure.—Whoever tampers with, or alters in any way, any reference standard, Secondary standard or working standard or increases or decreases or alters any weight or measure with a view to deceiving any person or knowing or having reason to believe that any person is likely to be deceived thereby, except where such alteration is made for the correction of any error noticed therein on verification, shall be punished with fine which may extend to fifty thousand rupees and for the second and subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to one year or with fine or with both.” 27. A Reading of both the aforesaid provisions would show that it is the person who tampers with or alters in any way, any reference standard, secondary standard or working standard or increases or decreases or alters any weight or measurement with a view to deceiving any person would be liable for the prescribed punishment. 28. Again, this Court is of the opinion that so far as the present petitioners are concerned, there is no allegation at all against them that they had tampered with or alter the weight or measure with a view to deceiving any person. No knowledge has been attributed to the accused persons and a reading of the complaint petition only shows that the allegations are directly pointed out against the Purchase Centre Incharge and the Transporter. 29. No knowledge has been attributed to the accused persons and a reading of the complaint petition only shows that the allegations are directly pointed out against the Purchase Centre Incharge and the Transporter. 29. As per allegation, it was the Purchase Centre Incharge who was present and he was also the Weighing Clerk. Realization of realizing a sum of Rs. 7/- per quintal is alleged against the Transporter. There is no allegation that these petitioners had any knowledge of the lesser weighment being done at the Purchase Centre and/or realization of Rs. 7/- per quintal by the Transporter. Thus, in absence of any allegation to that effect against these petitioners, the cognizance and summoning against these petitioners under Sections 25 & 26 of the Legal Metrology Act, 2009 is liable to be held bad in law. 30. Now, we came to the relevant provisions of the Sugarcane Act and Rules framed thereunder, those are quoted hereunder for a ready reference:— 39. Recording of correct weight of cane.—(1) The occupier of every factory, the owner of every unit, Secretary of every Co-operative Society and every person in charge of weighmen’s shall maintain, subject to such limits of error as is prescribed by the State Government under the law relating to weights and measures, for the time being in force, a record of the correct weight of cane purchased at the place of weighment. (2) No cane shall be purchased without being weighed. 43. Payment of price of cane.—(1) The occupier of a factory shall make such agreements for the payment of price of cane as may be prescribed. (2) (i) As soon as cane is supplied to a factory, the occupier of such factory shall be liable to pay the price of cane so supplied. (ii) Where the occupier, liable under clause (i) makes default in payment of the price for a period exceeding fourteen days from the date of supply of cane to the factory, he shall be liable to pay interest thereon at the rate specified in section 51 from the date of supply. (ii) Where the occupier, liable under clause (i) makes default in payment of the price for a period exceeding fourteen days from the date of supply of cane to the factory, he shall be liable to pay interest thereon at the rate specified in section 51 from the date of supply. (3) (i) Where a co-operative society has received the price of cane or interest thereon from the occupier of a factory, the Secretary or the Treasurer of the Society or any other person in charge of payments on behalf of such society shall be liable to pay the same price together with interest, if any, to the cane-growers or members of such society, as the case may be, immediately on receipt thereof from the occupier of the factory. (ii) Where the person liable under clause (i) makes default in payment of the price or interest thereon received from the factory, for a period exceeding fourteen days from the date of such receipt, he shall be liable to pay interest thereon, at the rate of seven and a half per centum per annum from such date. (4) The owner of the unit shall make payment of the price of cane supplied to it immediately after the supply and on failing to do shall be liable to pay interest at the rate prescribed. (5) Notwithstanding anything contained in sub-section (2), sub-section (3) or sub-section (4), the occupier of the factory or the Secretary or the Treasurer of the Co-operative Society or any other person in charge of payment on behalf of such society or the owner of the unit shall be punishable under section 52 for failure to make payment of the price in time. (6) Any arrears of the price of cane, with interest thereon, if any, shall be recoverable as public demand or arrears of land revenue. (7) Subject to any claim of the Central Government in respect of a tax or duty of excise, the price of cane shall be the first charge on the properties of the factory other than sugar. 44. Deduction.—(1) The occupier of a factory or any person on his behalf shall not make any other deductions from the price of cane except the deduction on account of any loan advanced by him, or on his guarantee or otherwise advanced by a bank or other institutions under section 50(1). 44. Deduction.—(1) The occupier of a factory or any person on his behalf shall not make any other deductions from the price of cane except the deduction on account of any loan advanced by him, or on his guarantee or otherwise advanced by a bank or other institutions under section 50(1). Provided that no deduction from the cane price shall be made without prior and due voluntary agreement of the concerned cane-growers: Provided further that, in any case, such deduction shall be deemed to have been made on the fifteenth day of delivery of sugarcane by the cane-grower or on the date of deposit of the delivery receipt with the sugar factory, whichever is earlier, and from that day the concerned cane-grower shall stand discharged from the liability to repay the loan and interest thereon to the extent of the deduction and it shall be the responsibility of the occupier of the Mill to ensure prompt and proper crediting to the concerned Bank and other institutions, if any, which extended the loan on his guarantee. (2) Any person in charge of payment of price of cane on behalf of a co-operative society shall not make any deduction from such price except on account of any loan advanced by the society to a member of such society or a cane-grower. (3) Notwithstanding anything contained in sub-section (1) and (2) where there is any contributory scheme under any national or State Plan, the realization of the contribution of the cane-growers or suppliers of cane or co-operative societies or their members may be made, with their previous concurrence, by deduction from price of cane : Provided that the amount so deducted by the occupier of a factory shall be deposited in the funds of the council in the prescribed manner and in the event of his failure to do so, interest at the rate specified in section 51 shall be payable by the occupier of the factory and the principal amount together with interest shall be realizable as public demand or as arrears of land revenue. (4) The amount of deduction referred to in sub-section (3), made any time before commencement of this Act and remaining on the commencement of this Act with the occupier of a factory or any other person shall be deposited in the funds of the Board or the council concerned in accordance with the order, in this behalf of the State Government. On the failure of such occupier or other person to so deposit such amount, it shall be recoverable as public demand or as an arrear of land revenue and shall bear interest at rate specified in section 51. 52. Penalty for offences.—If any person contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act or the rules or of any order made or direction given thereunder or the terms and conditions of any licence, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both and in the case of a continuing contravention, with an additional fine which may extend to one thousand rupees for every day during which such contravention continues after conviction for the first contravention : Provided that where the offender has been acting on behalf of the occupier of the factory or the manager such occupier or manager, as the case may be, shall be similarly liable in addition or alternatively to the actual offender unless he proves that he had used all the due diligence to enforce the observance of this Act, or the rules or of the order made or direction given thereunder or the terms and conditions of any licence and that the offence was committed without his knowledge or consent. 31. Rule 13(b) and (c), 22, 23 and 24 of the Sugarcane Rules, 1978 which have been allegedly violated by these petitioners are also quoted hereunder for a ready reference:— “Rule 13(b). examine any record, register, account or documents of a factory or a unit and call for any information relating to payment of cesses and taxes or commission under the Ordinance; Rule 13(c). examine any record, register, accounts or documents by co-operative societies relating to payment of price of cane.” 22. examine any record, register, account or documents of a factory or a unit and call for any information relating to payment of cesses and taxes or commission under the Ordinance; Rule 13(c). examine any record, register, accounts or documents by co-operative societies relating to payment of price of cane.” 22. Conditions precedent to commencement of purchase of cane and matters incidental thereto.—(1) The occupier of factory or any person acting on his behalf shall not commence purchase of cane at any purchasing centre unless – (a) all the weighbridges to be used for weighment of cane have duly been checked and certified as workable by the competent authority under the law relating to weights and measures; (b) appropriate arrangements to the satisfaction of the Collector have been made for arranging funds for making payment of the price of cane; (c) Cane Officer of the area concerned has certified that suitable arrangements for parking of cane carts and approach roads, as specified in rule 30 and for distribution of requisition slips and identification cards have been made; and (d) adequate arrangements for weighment, adequate staff, sufficient number of weighbridges and adequate means of transport for carrying cane from all outlying purchasing centres to the factory, to the satisfaction of the Collector, have been made. (2) The certificate from the competent authority, referred to in clause (a) of sub-rule (1) shall be kept at the purchasing centre during its working hours. (3) At least fifteen days before the commencement of purchase of cane at any purchasing centre the occupier or manager of the factory shall give notice to the Collector of the district specifying therein the names, designation, parentage and home addresses of the persons entrusted with weighment of cane and payment of price of cane and any other activities connected therewith. A copy of the notice given to the Collector under this sub-rule shall also be sent simultaneously to the Cane Commissioner, Assistant Cane Commissioner and the Cane Officer of the area concerned. (4) The survey of the standing cane-crop envisaged in sub-section (2) of section 28 shall be made by actual measurement of the plots of land having standing crop of sugarcane intended for supply to the factory concerned. (4) The survey of the standing cane-crop envisaged in sub-section (2) of section 28 shall be made by actual measurement of the plots of land having standing crop of sugarcane intended for supply to the factory concerned. Where the standing cane-crop consists of sugarcane grown by both cane growers and members of any co-operative society, previous notice of the survey to be made shall be given to the secretary of the co-operative society concerned at least one week before the survey starts. (5) The results of the measurements of the plots taken shall be recorded in a survey register which shall contain the following particulars :— (a) name of the village, revenue thana number, names of the Panchayat and the N.E.S. Block, (b) names with parentage and address of the cane growers or members of co-operative society, (c) plot number with khata number of each plot measured, (d) area of standing cane crop, (e) variety of the sugarcane grown in the plot inclusive of the plantwise and ratoonwise break-up. (f) estimate of cane likely to be supplied to the factory with plantwise and ratoon wise break-up. (6) Where any representative of a co-operative society is present in the course of survey his signature shall be taken on the measurement sheet with objections, if any, which he has to make. Where such representative refuses to sign the measurement sheet, a note to this effect shall be recorded. (7) The occupier or manager of the factory, as the case may be, shall on completion of the survey of standing cane-crop send village-wise abstract of such survey to the Cane Officer of the area concerned showing therein the area under plant and ratoon crops of every variety together with estimate of cane to be supplied to the factory. (8) Any dispute regarding survey shall be referred to the Cane Officer of the area for decision. (9) Any decision of the Cane Officer, under sub-rule (8), may be revised by the authority specified in rule 38, on application being made to such authority by any aggrieved party within thirty days of the order of the Cane Officer. (10) The decision of the Cane Officer, subject to the result of this revision, if any, shall be final. 23. Working of purchasing centres. (10) The decision of the Cane Officer, subject to the result of this revision, if any, shall be final. 23. Working of purchasing centres. —(1) The occupier or manager of every factory shall cause to be posted on a notice board at each purchasing centre notice showing the rates at which the cane is purchased at that centre and also the minimum price of cane, if any, fixed by Government. such notice shall be legibly written or printed only on one side of the paper in Devanagri script. (2) The occupier or manager of a factory shall also cause a copy of these rules to be hung up at a conspicuous place at each purchasing centre or payment centre, i.e., the place where payment of price of cane is made. (3) When a purchasing centre is closed owing to a breakdown of machinery or any other reason beyond human control necessitating an abrupt but temporary suspension of operation, the occupier or manager of the factory concerned shall – (i) cause to be posted immediately at the purchasing centre a notice in Devanagri script indicating the probable duration of the suspension, (ii) cause the suspension of purchase to be announced as widely as possible. (iii) forthwith send intimation of suspension to the Collector and the Cane Officer concerned, and (iv) purchase all cane brought within twelve hours of the posting of the notice of suspension if such cane is brought on the requisition of the occupier or the manager of the factory. (4) If the purchasing centre is to be closed for any reason other than the reasons specified in sub-rule (3), the occupier or manager concerned shall publish notice in Devanagri script at the purchasing centre as proposed to be closed and send a copy of such notice simultaneously to the Cane Commissioner, the Collector, the Assistant Cane Commissioner and the Cane Officer concerned. 24. Weighment of cane.—(1)The occupier or manager of every factory, owner of every unit and the secretary of every co-operative society purchasing cane and all persons working on their behalf shall, in respect of weighment of cane, comply with a cause to be complied with the following conditions, namely:— (i) All dealings and contracts in connection with the purchase and supply of cane or purchase of cand juice shall be made only in terms of metrio system of weights. (ii) No weighbridge shall be used, kept or possessed by, or on behalf of, an occupier or manager of a factory, the owner of a unit or a co-operative society, which is inaccurate or which do not permit of easy reading of the recorded weight in accordance with the provisions of the law relating to weights and measures for the time being in force. (iii) Inaccurate weights and such weighbridges as have gone out of order shall either be removed from the purchasing centre or sealed up or rendered incapable of use for weighing cane. (iv) Scale-arms of weighbridges and weights shall be kept in full view of the persons supplying cane. The reading of the scale-arms shall be legible marked in Hindi in Devanagri script on both sides. (v) The gross, tare and net weights of cane or cane juice shall be correctly recorded. The net weight of cane shall be rounded to be nearest kilogram for purposes of calculating price of cane. (vi) All weighbridges used, kept or possessed for purchase of cane or cane juice shall be open to inspection and test at all times without notice by the Cane Officer or ex officio Cane Officer concerned. (vii) Standard weights consisting of fifteen weights each of 50 kilograms, ten weights each of 20 kilograms five weights each of 10 kilograms shall be kept at each purchasing centre to facilitate checking of weighments and weighbridges. (viii) All weights used, kept or possessed for the purchase of cane or cane-juice or for checking weighments shall be standard weights made of such metals as are prescribed under the law relating to weights and measures for the time being in force and no weight which has not been stamped under the provisions thereof or does not clearly indicate its denomination shall be used. (ix) The part of the mechanism of a weighbridge by which its adjustment is controlled, shall be kept sealed and locked. (x) All weighbridges used, kept or possessed for the purchase of cane or cane-juice shall be tested daily before starting weighment of cane for the day and records of such test shall be maintained and shall on demand be shown to the Cane Officer concerned. (xi) Weighment of cane or cane-juice shall not be made after sunset at any purchasing centre unless adequate lighting arrangements are made. (xi) Weighment of cane or cane-juice shall not be made after sunset at any purchasing centre unless adequate lighting arrangements are made. (xii) No deduction shall be made from the net weight if of cane or cane-juice to compensate driage, improper stripping or for any other reason. (xiii) The weighbridges used for taking gross weight of cane loaded carts or vehicles at any purchasing centres shall not be located at less than fifty metres distance from the place where the cane is unloaded from such cart or vehicle. Provided that the Collector may for adequate reasons exempt the occupier or manager of a factory from the operation of this clause in respect of a purchasing centre not located at, or adjoining the factory. (xiv) Cane loaded carts and other vehicles loaded with cane shall be weighed in the order of their arrival. (2) The Collector may authorize any representative of cane-growers or members of co-operative societies to be present at the time of weighment of cane at any purchasing centre within his district and such representative may watch the weighments and recording of the results of the weighments. (3) The occupier or manager of a factory or the owner of a unit or the secretary of a co-operative society or any person acting on his behalf of any other person shall not extract any cane from a cane-cart at any purchasing centre for any form of charity.” 32. It is the contention of learned counsel for the petitioners that so far as petitioner nos. 2 and 3 are concerned, they cannot be prosecuted as the liability under these provisions are against the occupier of a factory and not the petitioner nos. 2 and 3 who are the Executive President and Cane Manager respectively. 33. Section 2(1) of the Cane Act defines the term ‘occupier of a factory’ to mean a person carrying on business of manufacturing sugarcane by Vacuum Pan Process in a factory and having the ultimate control over the affairs of the factory. Section 59 of the Cane Act deals with determination of the occupier of a factory and Sub-section 2 provides therein that where the occupier of the factory of a company, any of the Directors thereof, or in the case of a private company any one of the share holders thereof may be prosecuted and punished. Section 59 of the Cane Act deals with determination of the occupier of a factory and Sub-section 2 provides therein that where the occupier of the factory of a company, any of the Directors thereof, or in the case of a private company any one of the share holders thereof may be prosecuted and punished. The petitioners have specifically stated in paragraph 25 of the petition that the petitioners are not nominated Directors and in fact the nominated Director is one Sri B.K. Malpani. 34. In this case, no counter affidavit has been filed on behalf of the State to controvert the statements made in the petition on behalf of the present petitioners. On 04.08.2017, when no one appeared on behalf of the State, this Court had to send a copy of the order to the office of the learned Advocate General, Bihar, to ensure the presence of State counsel. The learned State counsel sought to defend the prosecution of the petitioners but without any significant resistance. There is no denial of the fact that one of the Directors, Sri B.K. Malpani, has been nominated as occupier of the factory for the purposes of the Cane Act and Rules framed thereunder. 35. A perusal of the provisions of the Cane Act and Rules referred hereinabove would show that for recording of correct weight of cane the occupier of every factory, owner of every unit, secretary of every Co-operative Society and every person Incharge of weighmen’s has been made responsible subject to certain limits of error as prescribed by the law. Similarly, the responsibility for payment of price of cane is upon the occupier of a factory who shall make agreement and shall be liable to pay the price of the cane so supplied. 36. In the present case, there is virtually no specific allegation against these petitioners so as to attract violation of the provisions of the Cane Act and Rules referred hereinabove. Since, the inquiry report submitted by the Inspecting Team and the complaint petition, nowhere mentioned the role of these petitioners which will be said to be in violation of the Cane Act and Rules referred hereinabove, I am of the considered opinion that no prima facie case is made out against these petitioners for the offences alleged under the provisions of the Cane Act and Rules made thereunder. The Sugar Mill which has been made accused no. The Sugar Mill which has been made accused no. 1 in the complaint petition has no legal existence on its own. It is not stated in the complaint petition as to who is the owner of the Mill ? Whether the Mill is owned by body corporate or by a partnership firm or by an individual is not stated. The Sugar Mill alone is neither a living person nor a persona designate in the eye of law. Similarly, the petitioner nos. 2 & 3 have been impleaded only because they happened to be the Executive President and the Cane Manager, there is not a single line in the complaint to show as to how they have committed any act or omission which will bring them in the column of accused for the offences alleged. They cannot be prosecuted as there cannot be a vicarious liability upon them in absence of a statutory provision. A clear averment made by the petitioners in the petition that one Sri B.K. Malpani, a Director, has been nominated as occupier of the factory strengthens the view of this Court that petitioner nos. 2 & 3 have been impleaded without there being any reason or ground for their impleadment. 37. The submission of learned Additional Public Prosecutor for the State that the petitioners are liable to be prosecuted has no basis to stand, thus it is not fit to be accepted and the same is hereby rejected by this Court for the reasons already discussed hereinabove. 38. This Court is of the considered opinion that the order taking cognizance and issuance of summons against the present petitioners (accused nos. 1, 2 & 3) has been passed in a routine and mechanical manner by the learned Judicial Magistrate, 1st Class, Motihari Sadar, East Champaran in Case No. O.C. 21/2014, thus, the same is hereby set aside and the prosecution of these petitioners is quashed. 39. This application is, accordingly, allowed.