Ram Chandra Singh vs The State of Bihar

Anand Prasad Sinha, J.—This application is directed against the impugned order dated 28.2.1981 passed by Sri A. Ojha, Sub-divisional Judicial Magistrate, Bermo at Giridih in Jaridih P. S. Case No. 5 (3) 79 by which the learned Magistrate has taken cognizance against the petitioner for an offence u/s 7 of the Essential Commodities Act (hereinafter to be referred to as the Act). The facts leading to this case is that the informant, who happened to be the Block Development Officer had received an information at about 9 P. M. in the night from the Deputy Commissioner, Giridih for making a raid at the petrol pump, named and styled as M/s. Ashoka Auto Service. The purpose behind the raid was that the price of the petrol had been increased with effect from 1.3.1979 and that being so, there was an order of the Deputy Commissioner that all the stocks existing prior to 1.3.1979 should be sold at the old rate and only the new stock with effect from 1.3.1979 be sold on the increased rate. The Block Development Officer took along with him the Officer Incharge of the concerned police station and thereafter he had verified the cash memos, stock register etc., and thereafter an information had been given to the police and a case had been registered.

It appears from perusal of the police report that the instant prosecution is on account of the fact that the cash memos and the stock register indicated that the price sold were at the new rate which was given effect from 1.3.1979 and also neither the stock nor the price had been displayed as contemplated under the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 (hereinafter to be referred to as the said Order).

Learned counsel for the petitioner has questioned the validity of the impugned order of cognizance purely on legal grounds which, in my opinion, are quite acceptable. From the prosecution report itself it appears that the raid had been made at about midnight and admittedly that was not the business hours of the concerned petrol pump. Under the circumstances, if there be any inspection what-so-ever beyond the working hours of the business, I am afraid the contravention of the said Order cannot be said to have been committed. Under the circumstances, the petitioner cannot be said to be liable for the contravention of the said Order.

It would appear that, as a matter of fact, the business was being conducted by a firm and under the circumstances, unless it is stated that the petitioner was responsible and/ or incharge of the affairs of the business at the relevant point of time, no prosecution can lay against the petitioner as contemplated u/s 10 of the Act.

Of course, there is a mention that sanction has been obtained as contemplated under clause 6 of the said Order, but on perusal of the sanction order it appears that the sanction has been obtained not against this petitioner but only against the firm and that being so, there is no valid sanction for the prosecution of the petitioner. However, as stated above, the question of sanction does not arise at all in this case because there could not have been any contravention of the said Order as the raid had been made beyond the working hours,

The petitioner has not been named in the first information report at all and in absence of any statement as said above, that he was the incharge or responsible for the affairs of the business at the relevant point of time, and also in absence of any specific statement that the petitioner had, in fact, contravaned the provisions of the Act, no successful prosecution can be launches against the petitioner.

In addition that there is no application of the said Display Order, absolutely, it has not been mentioned that after all what Control Order has been violated and under the circumstances, the prosecution cannot be sustained. In the result, this application is allowed. The impugned order of cognizance is hereby quashed as against the petitioner only.