KAILAS PROSAD MUSADDI Vs. STATE

JUDGEMENT

(1.) THIS revisional application is directed against an order dated 24.9.1981 passed in D.E.B.G.R. Case No. 527 of 1974. The petitioner No. 1 is a partner of a partnership firm, M/s. Sree Durga Oil Mills and the petitioner No. 2 is its manager. A licence was issued in favour of the firm for carrying on business as a dealer in kerosene oil. On 15.9.1974 the officer -in -charge of Mahadipur Camp lodged a written complaint with the Englishbazar Police Station that upon checking the stock of kerosene oil at the premises of the said firm, the petitioner No. 2 produced the stock register which was found to be written up to 13.9.1974. On an allegation that the accused persons had violated the West Bengal Kerosene Control Order, 1968 in so far as they did not maintain daily accounts up -to -date, the reserve stock was seized and the petitioner No. 2 was taken into custody. Subsequently charge -sheet was submitted and petitioner No. 1 thereafter surrendered in Court. May 16, 1979 was the date fixed for hearing of the charge. The petitioners moved the learned S.D.J.M. for their discharge on the ground inter alia that there was no legal provision for maintaining any register as mentioned in the complaint. The learned Magistrate not having accepted the contention of the petitioners they moved this Court in revision being Criminal Revision Case No. 1639 of 1979. That revision case was eventually disposed of by sending the matter back to the learned Magistrate with a direction to scrutinize the licence and to consider whether there was any condition in the licence requiring the petitioners to maintain an up -to -date stock register or whether there was any requirement under the Kerosene Control Order which required the licensee to maintain an up -to -date stock register.

(2.) AFTER the matter went back to the court below the learned S.D.J.M., Malda after hearing the parties held by his order dated 24.9.1981 upon an interpretation of Clause 5(a) of the licence that the licensee was required to maintain daily accounts in registers as may be prescribed by the Director. There is no dispute that no form has yet been prescribed by the Director nor has any direction been issued in that behalf in terms of paragraph 12 of the Kerosene Control Order, 1968. The learned S.D.J.M., however, observed that the failure to prescribe a form did not absolve the licensee from maintaining daily accounts. The provision in the licence, according to him, only meant that he was to maintain the accounts in the form prescribed if there was any such form, and if not, in any other manner. But, at any rate, in his view the licensee was required to maintain daily accounts. Upon such as view of the matter, the learned Magistrate overruled the contention of the petitioners and fixed a date for examination of witnesses.

(3.) LEARNED Advocate appearing for the petitioners upon a reference to the terms of the licence in para 5(a) contended that unless a form was prescribed, there could be no liability to maintain daily accounts 'in registers as may be prescribed by the Director'. Secondly, it was contended that the persons proceeded against are one of the partners of the firm which was the dealer and licensee and the manager of the firm. It was contended that in view of the provisions of Section 10 of the Essential Commodities Act, the prosecution was bad insofar as the firm itself was not made a party but a partner and a manager have been made vicariously liable. This, according to him, is not permitted in view of the provisions of Section 10 of the Essential Commodities Act.