RAMESH KUMAR Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this revision petition against order dated 18th May 1984 of an Additional Sessions Judge succinctly are that the petitioner is a partner in the Firm-M/s. Wishan Das Kharaiti Lal, Naya Bazar, Delhi. The said firm holds a licence as a wholesaler for dealing in edible-oils under the provisions contained in the Delhi Edible Oils (Licencing & Control) Order, 1977 (hereinafter referred to as 'the Order'). A raid was conducted by the officials of the Food and Supplies Department, Delhi Administration, on the business premises of the petitioner on 14th August 1980. On scrutiny of various registers viz. stock register, bill book, cash book etc. it transpired that the petitioner should have with him in stock 1560 tins of edible oil. However, on physical verification only 1534 such tins were found in stock. Thus, there were a shortage of 26 tins of mustard and taramira oil. A case under Section 7 of the Essential Commodi- ties Act (for short 'the Act') was, therefore, registered against the petitioner for alleged contravention of the provisions of 'the Order', the precise allegation against the petitioner being that-the stock in hand did not tally with the stock of edible oil as shown in the stock register etc.

(2.) The licence of the petitioner was suspended apparently under clause 9 of the Order by the Deputy Commissioner, Food & Supplies. In reply to a show-cause notice issued to him for initiating proceedings under the Order against him, the petitioner took up the plea that 26 tins of oil had been sent on that very daybefore the raid was made, to a firm of Dehradun styled M/s. Hira Nand Kishan Chand for sale on commission. The goods had been booked through M/s. Vijay Lakshmi Transport Company, Naya Bazar and a declaration in Form No. 31 as required under the U.P. Sales Tax Act was attached to the goods receipt. It was contended that the provisions of the U.P. Sales Tax Act required that no goods could be imported into U.P. unless the goods were duly reflected in Form No. 31 which was issued to the registered traders in U.P. Therefore, any trader in U.P. intending to import goods therein from another State had to send the said form duly signed by him authorising the outside trader to export goods to U,P. The petitioner further explained that because all the necessary entries regarding the quantity and the kind of edible oil sought to be exported to U.P. for sale on commission basis had been duly reflected in Form No. 31, no separate invoice or cash memo was issued. Indeed, according to him, there was no sale of goods to anyone as such and the same had been despatched for sale by a firm at Dehradun on commission basis. The petitioner produced before the Deputy Commissioner, Food & Supplies, photostat copies of the goods receipt and Forrn No. 31 which, according to him, had been issued by the aforesaid transport company. This plea found favour with the Deputy Commissioner, Food & Supplies (Shri S.L. Dua), who vide his order dated 16th October 1980 exonerated the petitioner from the alleged contravention of the provisions of the Order. In the meanwhile, however, the police put in charge-sheet against the petitioner under Section 173, Code of Criminal Procedure, for his prosecution for an offence under Section 7 of the Act for having infringed the provisions of the Order which had been issued under Section 3 of the Act. The petitioner produced a copy of the aforesaid order of the Deputy Commissioner, Food & Supplies, in the court of the Metropolitan Magistrate when arguments on the question of framing the charge were heard. It was contended before the learned Magistrate that the .Department of Food & Supplies having found that there was no contravention of any of the provisions of the Order, no offence as such was made out against him. The learned Magistrate, on a careful consideration of the goods receipt and Form No. 31, U.P. Sales Tax Act, which were both dated 14th August 1980 and on a perusal of the order of the Deputy Commissioner, Food & Supplies, came to the conclusion that no prima facie case which would warrant framing of a charge against the petitioner was made out. Hence, he discharged him vide order dated 21st May 1983. Feeling aggrieved the State went in revision against the order of discharge. On hearing the parties the learned Additional Sessions Judge found that there was ex-facie infraction of the provisions contained in clause 9 of the Licence and clause 8(4) of the Order and, therefore, prosecution of the petitioner was well warranted on the facts and circumstances of the case. However, the learned Additional Sessions Judge did not dwell upon the aspect of the matter which had weighed with the learned Metropolitan Magistrate in discharging the petitioner, namely, that after exoneration of the petitioner by the Deputy Commissioner, Food & Supplies, there was no justification or warrant for his prosecution.

(3.) I have heard counsel for the parties. The learned counsel for the petitioner has canvassed with considerable favour that no infraction of either clause 8(4) of the Order or clause 9 of the licence is prirna facie made out and as such the learned Additional Sessions Judge fell into a grave error in arriving at the conclusion to the contrary and remanding the case for holding the trial. On a consideration of the submission made before me, I find considerable merit in the same.