Gobinda Chandra Sahu vs State of Orissa

J.K. Mohanty, J.—This revision is directed against an order of the Additional Sessions Judge, Cuttack confirming an order of the Judicial Magistrate, 1st Class, Cuttack convicting the accused Petitioner u/s 7(1) of the Essential Commodities Act and sentencing him to undergo S. I. for one month and to pay a fine of Rs. 200/., in default to undergo S. I. for 15 days more.

The case against the accused-Petitioner is that he did not maintain the up to-date accounts of kerosine of which he was a retail dealer. The account was not maintained beyond 25-6-1973 and he had not indicated the stock position of kerosine. It is alleged that on 18-11-1973 when the Additional S.P. and the A.D.M. Cuttack alone with the Officer-in-charge, Sadar P.S. inspected the shop, they found the aforesaid discrepancy and thereby the accused-Petitioner had contravened Clause 12 of the Orissa Kerosene Control Order, 1962 (hereinafter to be referred as the "Order"). After due investigation charge-sheet was submitted against the accused-Petitioner.

The accused-Petitioner was tried in the Court of the Judicial Magistrate, 1st Class, Cuttack in G.R. Case No. 2226 of 1973. The charge framed against the Petitioner was as follows:

That you on or about the 18.11.1973 at College square were a Kerosene retailer and that you on the said date found not to have maintained the stock position and thereby contravened Rule 12 of the Kerosene Control Order and thereby committed an offence punishable u/s 7 of the Essential Commodities Act.

The accused-Petitioner pleaded not guilty. The learned Magistrate after considering the evidence adduced before him convicted the Petitioner u/s 7(1) of the Essential Commodities Act and sentenced him as aforesaid and the seized Kerosine was also confiscated to the State Government.

Admittedly, in this case, as would appear from M.O.I. the Kerosene Sale Register, the accused-Petitioner has not maintained any account of sale of Kerosene beyond 25-6-1973 and M.O.III, the chart, also does not indicate the position of Kerosene in stock on 18-11-1973 when the accused-Petitioner shop was inspected.

Mr. R.C. Patnaik, learned Counsel appearing on behalf of the accused-Petitioner, submitted that the accused-Petitioner has not violated any of the provisions of the Order or of the conditions of licence or the certificate granted to him and in any event the question of violation of Clause 12 of the Order do not arise. On the other hand, the learned Additional Standing Counsel appearing for the State submitted that there is violation of Clause 12(a) of the Order as the accused-Petitioner has admittedly, not maintained any account beyond 25-6-1973. Clause 12(a) of the Order reads as follows:

The licensing authority or any other officer specified in the Schedule appended to this order may with such assistance, if any, as he thinks fit-

(a) require the owner, occupier or any other person in charge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of any of the provisions of this order or of the conditions of any licence issued thereunder has been is being, or is about to be committed to produce any books of accounts or other documents showing transactions relating to such contravention.

Under the above clause the owner, occupier or any other person in charge of any place or premises is required to produce books of accounts or other documents showing transactions relating to any till contravention of this Order for inspection by the licensing authority or other officer specified in the Schedule, if such officer or authority believes that there is any contravention of any of the provisions of the Order or of the conditions of any licence issued thereunder has been, is being, or is about to be committed.

In Clause 2(h) of the Order ''dealer'' has been defined as follows:

''dealer'' means any person .carrying on business in the purchase, sale or storage for sale or distribution of kerosene either wholesale or retail.

In Clause 2(g) of the Under ''retail dealer'' has been defined in the following lines:

''retai1 dealer'' means a dealer who sells kerosene to persons other than dealers.

Clause 7(1) and (3) of the Order provides as follows:

7(1). No person shall carryon business as a retail dealer unless on an application accompanied with a fee of Rupee one in that behalf he has been granted a certificate permitting him to carryon business as such dealer from the registering authority within thirty days from the date to be notified in that behalf by the Collector;

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(2) Every certificate granted under Sub-clause (1) shall be valid for a period/of one year from the date on which it is issued and may be renewed for a period of one year at a time upon an application in that behalf accompanied with a fee of rupee one,

The prescribed form for granting certificate to a retailer is as follows:

Certificate under Clause 7(1) of the Orissa Kerosene Control Order, 1962....

To

Shri/Mrs.

With reference to your

application, dated....

you are hereby permitted to carryon business in

kerosene as a Retail dealer at....subject to the

provisions of the Orissa Kerosene Control Order, 1962.

Registering authority

Dated....

Thus it will be seen that a retail dealer is to carryon business of selling kerosine after obtaining a certificate and such business shall be carried on subject to the provisions of the Orissa Kerosene Control Order, 1962. In the order there is no provision requiring a retail dealer to maintain accounts or the stock position. The learned Additional Standing Counsel could not point out any provision of the Order or produce any notification to show that it is incumbent on the retail dealer to maintain the accounts or the stock position. Clause 4 of the conditions of licence granted to a wholesale dealer in Form II requires a wholesale dealer to maintain the accounts and the stock position. Clause 4 of the conditions of licence is quoted below:

The licensee shall maintain a register of daily accounts showing correctly all transactions of kerosene in his possession. It shall show

(a) The opening stock on each day.

(b) The quantities and the brands received on each day showing the names of the suppliers.

(c) The quantities sold, delivered or otherwise disposed of on each day showing the places of destination and the names of the consignees.

(d) The dosing stock on each day.

As there is no provision in the certificate granted to a retailer similar to the provisions of Clause 4 of the conditions of licence granted to a wholeseler regarding maintenance of accounts, the obvious intention is not to burden a retail dealer with the task of maintenance of accounts as he sells kerosene in small quantities to a large number of persons for small amounts. In this case, in my opinion, there is no violation of Clause 12(a) of the Order. Nothing has also been pointed out as to which of the provisions of the Order has been violated and that the accused-Petitioner was required to maintain the books of accounts and other documents showing transactions. As already stated, the accused-Petitioner, who was a retail dealer, is not required to keep accounts and maintain the stock position under any of the provisions of the Order or under the certificate granted to him. As it appears, a retail dealer is only required to obtain a certificate and sell kerosene according to the price that may be fixed from time to time. But it is not the case of the prosecution that the accused- Petitioner had sold kerosene at a higher price than the price fixed by the State Government. The charge is only for non-maintenance of accounts.

In view of the above discussions and the fact that the accused-Petitioner has not violated any of the provisions of the Order or the conditions of certificate granted to him or any notification, I hold that the prosecution has failed to establish the charge u/s 7(1)(a)(1) of the Essential Commodities Act for violation of Clause 12 of the Order against the accused-Petitioner.

In the result, therefore, the revision is allowed, the conviction and sentence passed against the Petitioner is set aside and the Petitioner be released from the bail bond. The seized kerosene oil which has been ordered to be confiscated be returned to the Petitioner.

Revision allowed.