Balmakund Modi vs State of Bihar

R.J. Bahadur, J.—This is an application in revision by petitioner Balmukund Modi who has been convicted u/s 7 of the Essential Commodities Act (hereinafter referred to as ''the Act'') for contravention of Section 3 of the Bihar Food Grains Dealers'' Licensing Order, 1963 (hereinafter referred to as ''the Order'') and has been sentenced to suffer rigorous imprisonment for a period of three months; and also to pay a fine of Rs. 1,000/-; in default, to suffer further rigorous imprisonment for one month.

It appears that the petitioner was tried by a Munsif Magistrate, 1st Class, especially empowered u/s 260 of the Code of Criminal Procedure, i.e. under the provisions of Section 12A of the Act. The substance of the allegation against the petitioner is that he carried on business in food grains in village Telwa within the jurisdiction of Police station Jhajha. On 24-8-1964, his shop was raided in presence of the Sub Divisional Magistrate, Jamui, and 101 maunds of rice was found stored there. A seizure list was prepared at the spot and the petitioner was asked to produce the necessary license for dealing in food grains which he failed to produce. A case was, therefore instituted against him on the report of the Sub Inspector of Police D. P. Gupta (P.W. 7), who was also a member of the raiding party.

The defence of the petitioner at the trial was that he did not carry on any business in food grains and that the rice that was recovered was the yield of his land. He did not question recovery of the rice from his place at the time of the raid. He examined some witnesses in support of his defence.

The petitioner was put up on his trial before the Munsif Magistrate with the result indicated earlier. His appeal having been dismissed by the Additional Sessions Judge, Ist Court, Monghur, he has now come up in revision to this Court. The short point raised by Mr. J. N. Verma, appearing on behalf of the petitioner, is that the trial is vitiated by failure of the learned Munsif Magistrate by not adopting the provisions of warrant cases, and instead adopting the provisions of summons cases.

The matter is now concluded by a decision of a Division Bench of this Court in the case of Kedar Lal Marwari v. State 1968 B.L.J.R. 701 where their Lordships have considered and have followed the decision of the Bombay High Court in the case of Bandulal Balaprasad Vs. The State, . It appears that u/s 7 of the Act, two kinds of punishment are prescribed for contravention of any order u/s 3 made with reference to Clause (h) or Clause (i) of Sub-section (2) of that section, the maximum period of imprisonment provided is one year and fine; whereas for contravention of any other Order u/s 7, the maximum term of imprisonment prescribed is three years and fine. Under Sub-section (2) of Section 12A of the Act, the provisions of Section 262 to 265 (both inclusive) of the Code of Criminal Procedure have been made applicable, as far as may be, to a summary trial u/s 12A of the Act. Under the provisions of Section 262 of the Code of Criminal Procedure the procedure prescribed for summons cases has to be followed in summons cases and the procedure prescribed for warrant cases has to be followed in warrant cases with certain exceptions mentioned in the other following sections. The present case is not for contravention of Clause (h) or Clause (i) of Sub-section (2) of Section 3 of the Act. The maximum sentence, therefore, provided under the Act for the alleged offence extends to three years and as such it was clearly a warrant case. The learned Munsif Magistrate who tried the case summarily ought to have, in my opinion, followed the procedure of a warrant case with certain exceptions as provided in Chapter XXII of the Code of Criminal Procedure. I am, therefore, in respectful agreement with the view taken in K. L. Marwari''s 1968 BLJR 701 case.

This application must, therefore, be allowed. I set aside the conviction and sentence passed upon the petitioner. The case is remanded for fresh trial in accordance with law.

B.P. Sinha, J.

I agree.