BIMAL KUMAR BOURI ALIAS ROY Vs. STATE

JUDGEMENT

(1.) We accept and allow this revision, but with some amount of reluctance. As a result, the impugned prosecution under Sec. 7 of the Essential Commodities Act, 1955 for violation of the provisions of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 shall stand quashed. The commodity in question in respect of which the impugned prosecution has been launched is Coal and we, for our part, would like to have no doubt that the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977, hereinafter referred to as "the Order", even as it stood on the date of occurrence in this case in 1983, clearly applied to Coal. The expression "essential commodity" has been defined in Clause 2(b) of the Order to mean "any of the commodities mentioned in Schedule I to this Order" and Item 18 of Schedule I of the Order is "Coal including Soft Coke and Charcoal". Therefore, Clause 3 of the Order mandating display of List of the Stock and Price of each essential commodity held by a dealer would obviously apply to Coal.

(2.) Our attention has, however, been drawn to a Division Bench decision of this Court rendered in 1983 in Ashoke Kumar Jain v/s. State (87 Calcutta Weekly Notes 597), where it was held that the Order, as it stood then, could not apply to Coal, or for that matter of fact to any non -foodstuff. The ratio of. this Division Bench decision, as spelt out in paragraph 5 of the judgment, is as hereunder : -

(3.) It is true that in the Preamble to the Order of 1977, as it stood till its amendment in 1984, it was stated that "in exercise of the powers conferred by Sec. 3 of the Essential Commodities Act, 1955 (Act X of 1955), read with the Government of India, Ministry of Agriculture, (Department of Food) Order No. G.S.R. 316(E) dated 2Qth June, 1972, the Governor is pleased hereby to make the following Order "and it is also true that by and under the said Notification being G.S.R. 316(E) of June 1972 issued under Sec. 5 of the Essential Commodities Act, the State Government was empowered by the Central Government to make orders in relation to foodstuff only. And if the matter rested there, we would have felt no difficulty in appreciating and agreeing with the Division Bench decision in Asoke Kumar Jain (supra) that the Order, though avowedly professing to apply to Coal and various other non -foodstuff in view of Items 18 to 30 of the Schedule I, was ultra vires in respect of non -foodstuff.