RADHEY SHYAM Vs. COLLECTOR

JUDGEMENT

(1.) In this petition under section 482 Cr.P.C., applicant Radhey Shyam has prayed for quashing the F.I.R. filed against him under section 3/7 E.C. Act on the ground that no offence has been made out.

(2.) It is not disputed that the applicant is a dealer in non-levy cement. It is alleged that on 9.11.1982 informant Ram Dular Yadava went to the shop of the applicant for purchasing cement. The applicant told him that he would charge at the rate of Rs. 67/per bag but will issue receipt for Rs. 57/- per bag only. Thereupon the said Ram Dular Yadava approached the S.D.M. who signed currency notes for Rs. 3350/- and gave then to Sri Yadava. Sri Yadava went to the applicant, paid him the said Rs. 3350/- as price of 50 bags of cement at the rate of Rs. 67/- per bag, but he was issued receipt for Rs. 3078/- only after calculating at the rate of Rs. 57/- per bage. Soon thereafter the S.D.M. along with Nayab Tehsildar and Supply Inspector reached the spot and recovered the said currency notes for Rs. 3350/- which had already been signed by the S.D.M. Cash Memo No. 635 of the same date for Rs. 3078/- was also recovered. On these facts it is alleged that the applicant committed an offence under section 3/7 E.C. Act.

(3.) The contention of the applicant is that he was a dealer in non-levy cement and that the provisions of U.P. Cement Control Order 1973 or the provisions of U.P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) order 1977 were Dot applicable to non-levy cement and that there was no control on the price of non-levy cement nor any price had been fixed and as such even if the applicant charged the value at the rate of Rs. 67/- per bag, no offence have been committed. Reliance was placed on a decision of Division Bench of this Court in the case of Om Prakash Agrawal v. State of U.P., in which it was held that the provisions of above mentioned Orders of 1973 and 1977 were not applicable to the sale of non-levy cement in the State of U.P. after 28.2.1982, on which date the Cement Control Order 1967 was amended. The petitioner has also filed a copy of a G.O. dated 26.10.1982 issued by the Secretary Food and Civil Supplies Department U.P. Government in which it was clearly mentioned that keeping in view the amendment made in the Cement Control Order which became effective from 28.2.1982 it had been decided in consultation with Government of India that no prosecution should be launched against cement dealers in respect of price of non-levy cement.