RAM CHALITAR SAO Vs. STATE

JUDGEMENT

(1.) We are of the opinion that this application must be allowed. The petitioner. Ram Chalitar Sao, has been convicted under Section 7, Essential Supplies (Temporary Powers) Act, 1946, and has been sentenced by a Judicial Magistrate of Barh to nine months' rigorous imprisonment as also to pay a fine of Rs. 300, and, in default, to suffer further rigorous imprisonment for three months.

(2.) The petitioner is a retail dealer in cloth and carries on his business at Jaintiya Bazar in Fatwa. He held a licence for the purpose in the year 1950; but it is stated that, the licence having expired in December, 1950, an application had been made on his behalf for its rene-wal for the year 1951. On 16-6-1651, however, the petitioner's cloth shop happened to be inspected by the Supply Inspector. The Supply Inspector called for the Stock Register for inspection and the petitioner failed to produce it on the ground that it was lying in a room which, was then locked, and its key was with his brother who was not available at the time, Accordingly, the Supply Inspector, at the conclusion of the inspection of the shop, took into his custody all the cloths which were lying in the shop. The petitioner was later prosecuted for the breach of condition No. 2 of the licence which is granted in Form B to retail dealers in cloth. This condition No. 2 requires that a register of daily transaction in a particular form must be correctly maintained by the dealers separately for 'dhotis, saris' and so forth. It seems that, as this register was not forthcoming at the instance of the Supply Inspector on 16-6-1951, the petitioner was alleged to have committed a breach of that condition, and it is jn respect of that breach that he was tried, convicted and sentenced as stated above.

(3.) It seems to us to be clear enough that it is impossible to uphold the conviction of the petitioner for the breach of condition No. 2 of the licence in Form B which is granted under the Bihar Cotton Cloth and Yarn (Control) Order, 1948. Mr. Varma, who has appeared for the State, frankly conceded that he was unable to point to any evidence to show that any licence for the year 1951 had actually been issued to the petitioner, and, if no such licence was, in fact issued to him, he could not be guilty of having broken any condition of any such licence. It being impossible to find that a licence as required by the Bihar Cotton Cloth and Yarn (Control) Order, 1943, had been granted to the petitioner for the year 1951, his conviction for a breach of condition of such a licence cannot be sustained. It seems, however, that, in these circumstances, the petitioner would appear to have been carrying on his business in cloth in the year 1951 without a licence. This is certainly a serious matter; but it is not possible to convict him for any such offence in this case, his trial having been for another offence, namely, that of breaking a condition of a licence supposed to have been granted to him. A similar point arose for consideration in --'Nandkishore Prasad v. State', Cri Revn. No. 790 of 1952, D/- 21-1-1953 Pat (A) where also it was pointed out that to convict a man for carrying on business without a licence when ho had been tried for breaking a condition of a licence, no licence having been granted to him, would be changing the case entirely. It was then observed that, if an accused had been prosecuted for having carried on the business of a shop without a licence, the burden would be on him to show that he had a licence; but, when an accused is prosecuted for having contravened a condition of a licence, it would be for the prosecution to prove that there was a licence, a condition of which had been contravened. Having regard, therefore, to these circumstances, the conviction of the petitioner in the present case before us must be set aside.