Binod Kumar Jaiswal vs State of Bihar

S.N. Jha, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the proceedings in G.R. case No. 1309/77 including the order dated 3-8-1979 by which cognizance has been taken u/s 7 of the Essential Commodities Act, 1955 (hereinafter referred to as ''the Act'') against the petitioner. The petitioner by amendment, has also prayed for quashing the order dated 11-9-1981. passed by the Second Additional District and Sessions Judge, Madhubani in Cr. Revision No. 397/79./70/81.

The short facts which led to filing of this application is that on a confidential information the Officer-in-charge of Jainagar Police Station on 27-9-1977 went with some other persons to the Kirana shop of the petitioner known as Jaiswal Bhandar, situated at. Jainagar Main Road The petitioner was in his shop doing his business when the Sub-Inspector in presence of some persons searched the shop and recovered sugar in 8 bags containing 6 quintals 54 Kgs. on weightment and the same were seized as per the seizure list. The petitioner had no licence for sale of sugar. On the same day at about 11 P. M. the Officer in charge drew a First Information Report on his own statement making the petitioner an accused u/s 7 of the Act for storing 6 quintals 54 kgs. sugar for black-market. After investigation was completed the police submitted charge-sheet on 6-5-1979 against three persons including the petitioner. The other two persons were Bindeshwar Yadav. a local dealer of sugar and his brother Raj Kumar Yadav. The charge-sheet mentioned the offence "violation of the provisions of the-Bihar Sugar Dealers Licencing Order 1963" (hereinafter referred to as "the 1963 Order"). A copy of the charge-sheet is annexure ''1'' appended to this application

On the basis of the said charge-sheet the Chief Judicial Magistrate. Madhubani took cognizance u/s 7 of the Act against the petitioner alone and he discharged the other two accused persons on the ground that there was no iota of evidence against these two persons Against this order the petitioner filed., a Criminal Revision, ''before the Sessions Judge, Madhubani which was dismissed by the order dated 11-9-1981. Both these orders have been challenged before this court in this application.

The case of the petitioner from the very beginning was that Bindeshwar Yadav is a dealer in sugar and the management is done by his brother Raj Kumar Yadav. The said dealer had taken delivery of the sugar in question from Jainagar godown of the Food Corporation of India (hereinafter referred to as the F.C.I) on 22-9-1977 and while he was taking the sugar to his shop on a bullock-cart there was some defect in the wheels of the cart on the way. Therefore the sugar was kept in the shop of the petitioner to be carried later on When it was not removed by the dealer for two days, the petitioner on 24-9-1977 informed the Anchal Adhikari of the locality, who ordered to keep the sugar at that very place till his further order A copy of the application along with the order of Anchal Adhikari is annexure ''2'' to this application. This fact was also stated by the petitioner before the Officer-in-charge. which is mentioned in the case diary of 27-9-77. But the petitioner was arrested on the same date and subsequently he was released on bail.

5 It is the admitted position that the bags of sugar, seized did not belong to the petitioner, who was not a dealer or licencee under the 1963 Order. From the application it appears that the sugar in question was admittedly lifted by Bindeshwari Yadav. a dealer from the local godown of the F.C.I. on 22-9-1977 and this fact was informed by the F.C.I. to the Officer-in-charge of Jainagar Police Station. vide a letter dated 22-4-78 in reply to his querry made by him vide his letter dated 20-4-1978. These are the relevant facts,

Mr. Janardan Singh, learned Counsel appearing on behalf of the petitioner has challenged the impugned orders mainly on two grounds. He has submitted that the cognizance has been taken u/s 7 of the Act for violating the provisions of the Bihar Free Sale Sugar Dealers'' Licensing Order, 1967 (hereinafter referred to as the 1967 Order which was not in existence at the time of commission of the alleged offence. Therefore, according to him the impugned order taking cognizance is illegal and fit to be quashed.

Secondly he contended that even assuming that the cognizance has been taken under the 1963 Order, though it is repealed by the Sugar (Control) Order. 1966. the petitioner has not committed any offence under Clause 3 of the 1963 Order because the dealer can keep sugar up to 50 quintals under the 1963 Order. Therefore, no violation of provisions under this Order has been made out. As such the impugned order is bad in law.

In order to substantiate his first contention the learned Counsel has relied upon a decision given by this Court in the case of Sit a Ram Agrawal v. State of Bihar, decided on 11th May, 1977 : reported in 1978 Cri LJ 77 In that case also cognizance was taken u/s 7 of the Act for contravention of the 1963 Order and arguments were advanced that since the 1963 Order had been repealed by a Central Government Order (The Sugar Control Order. 1966) no proceeding could be initiated for its contravention after its repeal and the cognizance was invalid and illegal In that case it was held that the 1963 Order was no more in force under which the petitioner was proceeded against.

In the instant case the charge-sheet shows that recommendation was made by the police to take cognizance for the violation of the provisions of Clause 3 of the 1963 Order. But the Chief Judicial Magistrate took cognizance for violation of the provisions of Clause 3 of the 1967 Order. It is the admitted position that the 1967 Order has been repealed by the Bihar Free Sale Sugar Dealers Licensing Cessation Order, 1971 (hereinafter referred to ''1971 Order''). Clause 2 of the 1971 Order says that, on and from the date of commencement of this Order the Bihar Free Sale Sugar Dealers'' Licensing Order, 1967 shall cease to have effect provided that, such cessation shall not

(a) revive any thing not in force or existing at the time at which such cessation taken place: or

(b) affect the previous operation of the Bihar Free Sale Sugar Dealers'' Licensing Order. 1967 or any thing duly done or suffered there under or

(c) effect any right, privilege, obligation or liability acquired accrued, or incurred under the said Order: or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against, the said Order: or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such investigation, legal proceeding or remedy may be instituted continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this order had not been made.

This position has not been controverter by the State Counsel. Even the learned Sessions Judge has accepted this position by the observation in his judgment dated 11-9-1981 that the Chief Judicial Magistrate has wrongly mentioned the violation of the 1967 Order He has further observed that as a matter of fact, the 1967 Order has been repealed by the 1971 Order. In view of this position I must say that the Chief Judicial Magistrate has not applied his mind while taking cognizance u/s 7 of the Act that which of the orders made under the Act has been violated. If he would have applied his mind, I am sure he might not have written in the impugned order that an offence u/s 7 of the Act has been made out for violating Clause 3 of the 1967 Order by keeping 6 quintals and odd sugar for the purpose of sale. So, it is clear that the 1967 Order was not in force on the alleged date of occurrence. Therefore, the cognizance for violation of Clause 3 of the 1967 Order is no doubt bad in law.

So far the Bihar Sugar Dealers'' licensing Order 1963 is concerned. learned Counsel contended that this order also has no existence as it has been repealed by Central Sugar Control Order, 1966. In order to appreciate this point, it is necessary to state a short history relating to these Orders. By virtue of the powers delegated to the State Government u/s 5 of the Act the Government of Bihar made the Bihar Sugar Dealers Licensing Order. 1963 which came into force on 21st of Feb., 1963. In terms of Clause 3 every dealer carrying on business in sugar was required to take licence if he stored Sugar in any quantity exceeding 50 quintals at any one time. The Central Government also enforced an Order called the Sugar (Control) Order. 1966. Clause 17 (1) of the said Order lays down;

(1) The Sugar (Control) Order, 1955 and any order made by the Central Government or a State Government or any authority regulating or prohibiting the production, supply and distribution of sugar and trade or commerce therein are hereby repealed except as respects things done; or omitted to be done under any such order before the commencement of this Order.

(2) Notwithstanding such repeal, an orders-made by any authority, which is in force immediately before the commencement of this Order and which is consistant with the Order shall continue in force and all appointments made prices fixed, licences and permits granted, and directions issuerd under such order and in force and be deemed to be made fixed, granted or issued in pursuance of this Order.

We are not concerned with Section 2 of Clause 17 in this case. It will thus, be clear that the 1963 Order was also not in force and it was repealed by the 1966 Order. I have already stated above, that this was held in the case of Sita Ram Agrawal v. State of Bihar 1978 Cri LJ 77 .

The learned Counsel appearing on behalf of the State could not, be able to satisfy me as to what was the exact position at the time of the alleged occurrence regarding these Orders. The case, which has been cited by the learned Counsel appearing on behalf of the petitioner was deciderd on 11th May, 1977. Whether this decision had ever been brought to the notice of the Government for to the authorities concerned. I am not in a position to say here, But on ''the decision as well as on the perusal of. the 1966 Order, prima facie it appears to me that the 1963 Order is no longer in force. If that would be the position it is clear that the 1963 Order must be held to have been repealerd by the provisions of Clause 17 (1) of the 1966 Control Order

In the instant case the police submitted chargesheet, to take action for the violation of Clause 3 of the 1963 Order. On the other hand, the learned Chief Judicial Magistrate took cognizance u/s 7 of the Act for violation of Clause 3 of the 1967 Order. In any case, at the time of the alleged date of occurrence neither the 1963 Order was in existence nor the 1967 Order was in existence. Therefore, in my opinion, the order taking cognizance either under the 1963 Order or under the 1967 Order is invalid and illegal.

So far as the alternative argument of the learned Counsel appearing on behalf of the petitioner is concerned that in any event of the matter the petitioner cannot be held liable for storing 6 and odd quintals of. sugar because, even if 1963 Order is in existence, a person can keep sugar at a time 50 quintals. The learned Counsel appearing on behalf of the State submitted that the quantum of storage of sugar has been reduced by subsequent amendment from 50 quintals to 1 quintal. I will not go into that question at all. because, in my opinion, the very base of the prosecution has no leg to stand because cognizance has been taken for the violation of the provisions of such Order, which was hot in existence or in force at that particular moment of time.

16 In view of the above discussions the impugned orders dated 3-8-1979 of the learned Chief Judicial Magistrate as well as the order dated 11-9-81 passed in the Criminal Revision are hereby quashed and the application is allowed accordingly.