Braj Kishore Prasad and Another vs The State of Bihar

Navaniti Pd. Singh, J.—Heard the parties. The present application is for quashing of prosecution against the petitioner instituted u/s 7 of the Essential Commodities Act. The petitioners are a wholesale dealer of K. Oil having its business at Aurangabad in the State of Bihar. On 15.7.2003 at about 11.30 A.M. an inspection was conducted by the Supply inspector, Aurangabad Block. The inspection-cum-seizure list is Annexure 2. It is alleged that the seizure was effected because there was discrepancy as between the stock found and those entered in the stock register and those displayed on the Display Board. Display of stock and prices is the requirement under Bihar Essential Articles Display and Prices Order, 1977. The allegation in substance is that there was shortage of 130 Ltr. of K.Oil in the said wholesale premises. It is also asserted on behalf of the petitioners that undisputedly the petitioners in that month had received 96 KL of Kerosene Oil (96.000 Ltrs. of kerosene oil).

Considering the natural course of event a shortage of 130 Ltr. would not even amount to a shortage of 0.25% in respect of stock received. It is further stated that the licensing authority i.e. the Collector instituted a proceeding for cancellation of licence. While suspending licence show cause was asked from the petitioner vide Annexure 5. The Collector dropped the proceeding and relieved the petitioners'' licence of suspension. It is, therefore, submitted that the prosecution of the petitioners is misconceived on the grounds:

(i) the allegation being primarily with regard to violation of the Display Order as aforesaid as required by provisio clause (6) thereof, no sanction having been obtained the prosecution is liable to be quashed.

(ii) that the alleged shortage which was only 130 Ltr. in turn over of almost 96,000 Ltr. is too small to be taken note of on the principle of being minimal and the court takes notes of such trivial.

Having heard counsel for the petitioner and the counsel for the State in view of appropriate sanction as contemplated by Display Order not being there the allegation of violation of the provisions of Display Order cannot be sustained. It may be pointed out here that similar obligation is on wholesale dealer under the provision of the Bihar Trade Article Licence Unification Order, 1984 which in turn do not provide for sanction. It is settled that if violation of one law sanction is required then resort cannot be taken to another proviso to avoid obtaining sanction. The violation is small and the punishment is the same. Therefore, sanction is must. Accordingly, it is held that the prosecution without sanction is not maintainable and is quashed accordingly. Further in substance the allegation is of shortage of only 130 Ltr. It is a quantity negligible compared to turn over of 96,000 Ltrs. Applying the principle of deminimise the court does not take cognizance of trivial. The same ought to have been ignored specially when for offences u/s 7 of E.C. Act mens rea is essential ingredients. Accordingly the application is allowed and the order taking cognizance dated 9.9.2005 passed by learned S.D.J.M., (E.C. Act) Aurangabad in Aurangabad (J) P.S. Case No. 288/2003 is hereby quashed.