Vishwanath Sah vs State of Bihar

G.N. Prasad, J.—The petitioner, who is a food-grains'' dealer within the meaning of the Bihar Foodgrains Dealers'' Licensing Order, 1963, has been convicted u/s 7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for six months. The charge against the petitioner is in the following terms:

That you, on or about the 14th day of August, 1964, at village Lachhuman Nagar under P. S. Katra, Dist. Muzaffarpur being a foodgrain licencee in capacity of a fair price shopkeeper sold two maunds ten seen imported wheat to Sheonandan Sah in an unauthorised and unlawful manner in contravention of the provision of law and your food-grain licence and further you were found not maintaining the books of account of your shop in a correct manner as provided in the conditions of the foodgrain licence and under the provision of Bihar Foodgraina Dealers'' Licensing Order, 1963 and thereby committed an offence punishable u/s 7 of the E. C. Act, and within my cognizance ....

It has been found by both the Courts below that on the 14th August, 1964, the petitioner had sold 2 maunds 10 seers of imported wheat to Sheonandan Sah (P. W. 11). The prosecution was instituted against the petitioner on the basis of a police report wherein the particulars of the offence alleged to have been committed by the petitioner were set out as follows:

The brief history of the case is that on 14-8-65 at 9 P.M. complainant and others caught Sheonandan Sah with controlled wheat on boat. They carried the accused Sheonandan with the imported wheat to B. D. O. Garghat from where the accused with the wheat was forwarded to Benibad O. P. where I recorded the fardbeyan of complainant Girja Nandan Yadav and took up investigation of the case. Accused Sheonandan stated that he had purchased wheat (controlled) from dealer Bishwanath Sah of Lachhuman Nagar. The case was supervised by D. S. P., Muzaffarpur who found the case true u/s 7 E. C. Act.

From investigation a prima facie case u/s 7 E.C. Act has well been established against accused Bishwanath Sah and Sheonandan Sah but under the orders of S. Police Muzaffarpur, accused Sheonandan Sah is treated as a witness and C. S. u/s 7 E. C. Act is submitted against accused dealer Bishwanath Sah only to stand trial in Court.

It will be noticed that in the prosecution report aforesaid nothing was mentioned about any breach of the conditions of the petitioner''s licence in the matter of non-maintenance of correct books of account of his shop as required by condition No. 3 of his licence. u/s 11 of the Essential Commodities Act, no Court is competent to take cognizance of any offence punishable under that Act "except on a report in writing of the fact constituting such offence" made by a public servant. The police report is no doubt, a report of a public servant as envisaged in Section 7 of the Essential Commodities Act. But the said report, in the present case, made no mention whatsoever of facts constituting an offence u/s 7 of the Essential Commodities Act by reason of non-compliance with or contravention of the terms and condition! of the petitioner''s licence in the matter of a stock register and other books of account relating to his shop.

It was, therefore, in my opinion, not competent to the Courts below to have taken cognizance of this aspect of the alleged offence under 3. 7 of the Essential Commodities Act. Further, it will be noticed that the Police officer (P. W. 12) has said nothing in his evidence about contravention on the part of the petitioner of the conditions of his licence in the matter of maintenance of his books of account and daily transactions of his shop. This was so in spite of the fact that P. W. 12 had taken charge of the stock register, the sale register and the cash memo book of the petitioner''s shop, all of which he had returned to the petitioner after merely putting his signatures thereon. In course of his cross-examination P. W. 12 clearly stated as follows:

After examination of books of account, I found no discrepancy therein.

The stock register, sale register and the cash memo book were not relied upon on be. half of the prosecution, but were produced in defence of the petitioner''s case which, of course, did not succeed, that he had not sold the wheat in, question to Sheonandan Sah (P. W. 11). I am, therefore, of the opinion that the Courts below were not justified in convicting the petitioner on the footing that he had contravened condition No. 8 of the conditions of the licence granted to him under the Licensing Order, 1968.

With respect to the other part of the charge framed against the petitioner, namely, the charge framed on the basis that he had sold 2 maunda 10 seers of imported wheat to Sheonandan Sah (P. W. 11), the position is that in the Licensing Order, as it stood in 1963, no limitation as to the quantity which could be sold to any particular individual by a retail dealer in foodgrains had been pro. vided. Such limitation came to be fixed subsequently in the Licensing Order, 1966 and 1967. In the retail dealer''s licence issued under the Licensing Order of 1966, it was provided, inter alia, that the licensee shall not "sell any foodgrain in quantity exceeding one quintal to any person in one day." Since, however, no such condition existed in the licence granted to the petitioner under the Licensing Order, 1983, it is manifest that the petitioner could not have committed any contravention of the condition of his licence by his act in selling 2 maunds 10 seers of food-grain, which in this cage is imported wheat, to one individual on the same day or in course of one transaction.

Condition No. 5 of the licence issued under the Licensing Order, 1968, provides that "the licensee shall not contravene the provisions of the Bihar Foodgrains Dealers'' Licensing Order. 1988, or any other order relating to foodstuffs issued under the Essential Commodities Act, 1955 (10 of 1955)," I have accordingly looked into the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958. But there also no prohibition as to the sale in excess of any particular quantity of imported foodgrains to any one individual or in one transaction is to be found. Therefore, the petitioner could not also be deemed to have contravened condition No. 5 of his licence. There is, however, condition No. 10 of the licence which enjoins upon the petitioner the duty of complying with "any direction" that might be given to him by the State Government or the licensing authority in regard to purchase, sale and storage for sale, of foodgrains and other matters; so that if the petitioner omitted or failed to comply with such direction, then he would be deemed to have contravened condition No. 10 of his licence.

In the present case however, the prosecution has led no evidence at all about any direction within the meaning of condition No. 10 of the petitioner''s licence. Learned Counsel for the State in this Court also has not been able to bring to my notice any material in support of the fact that the State Government or the licensing authority had issued any direction to the petitioner in the matter of sale of imported wheat from his fair price shop. The learned Additional Sessions Judge, however has taken into consideration an agreement, which the petitioner is supposed to have executed in favour of the State Government in the matter of his fair price shop. The learned Judge has referred to Clauses 6 and 7 of the said agreement, which are in the following terms:

The ''appointed retailers'' shall sell only such rice/wheat as may be arranged to be issued to them by the Government from time to time and shall not sell any rice/wheat obtained from any other sources. The appoint-ed retailers may deal in foodgrains other than rice/wheat and any other items of provisions.

The ''appointed retailers'' shall sell rice/ wheat supplied by Government from time to time directly to consumers preferably in the locality in which the appointed retailers'' shop is situated.

The learned Judge has not referred to Clause 11 of the said agreement which also may be noticed here. Clause 11 is in the following terms:

The ''appointed retailers'' shall not sell rice/wheat in retail to consumers at a price exceeding that fixed by Government District Officers in retail to consumers. Sale in retail for the purpose of this clause shall mean sale of a quantity not exceeding one maund in one transaction.

The learned Judge, however, was not justified in relying upon this agreement at all. The reason is that this agreement was not produced at the trial nor it was formally exhibited in that Court. In fact it was not an exhibit in the case at all. No doubt, it purported to bear an exhibit number in such a manner as to indicate that originally it was marked as Ext. 7, but subsequently altered into Ext. 8. Looking to the exhibit list, however, it is manifest that this agreement could neither have been marked as Ext. 7 nor it could have been marked as Ext. 8 in the trial Court. Exhibit 7 as marked by the trial Court was "Entry No. 49 in Licence Register" and Ext. 8 was "F. I. R." I am, therefore, inclined to think that this document was surreptitiously introduced into the record either in the trial Court after the close of the evidence or in the lower appellate Court. This document should, therefore, have been totally ex-eluded from consideration.

That apart, the agreement between a dealer and the Government or the licensing authority cannot be construed in such a way as to hold that any term of the agreement can be equated as a direction within the meaning of condition No. 10 of the petitioner''s licence. A direction of the State Government or of the licensing authority does not postulate any agreement on the part of the licensee. It must follow, therefore, that by making a sale of 2 maunds 10 seers of imported wheat in one transaction to P. W. 11, the petitioner could not legitimately be held to have contravened even condition No. 10 of his licence.

For the reasons which I have given above, I hold that neither of the two parts of the charge framed against the petitioner has been brought, home to him. His conviction cannot, therefore, be maintained.

In the result, I set aside the conviction and the sentence and make the rule absolute.