DEO SARAN SAO Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) This is an application filed under Sec. 482 of the Code of Criminal Procedure for quashing the criminal charge for which the petitioner is being prosecuted. The offence complained of against the petitioner is with regard to violation of Bihar Paddy Procurement Order, 1973, commonly known as Leavy Order. This order came into force on 5.11.1973 and under clause 13 of the order the rate of procurement of the food -grains was fixed. Clause 13(1) of the order concerns the Millers and clause 13(2) applies to the wholesale dealers. The petitioner is a proprietor of a firm described as Kailash Sah Ram Lakhan Sah. The firm holds a licence for wholesale dealer having licence no. 222 of 1967. It may further be stated that clause 13(2) of the Order farther provides modes for payment of levy by the wholesale dealers. It is there that 50% of the total quantity of paddy and rice held in stock by the dealer on and from 15th November, 1973, till the order is enforced, is to be paid as levy to the State Government. Alternatively, the payment of the levy can be made under an agreement for the entire Kharif period and the minimum thereof will be 200 Quintals. The Kharif have also been defined therein under clause 2(1) in between 1.11.73 to 3.1.73 and the delivery is to be made at the procurement price fixed only under clause 2(H) of the Order. So far the case against the petitioner is concerned, it is stated that an agreement was executed by the petitioner to deliver 200 Quintals of rice and the same was to be paid in four instalments, each one of the instalments was of 50 Quintals and the payment was to be made on 15.1.1974 and the next instalment on 3l.1.1974 and again on 7.2.74 and the last instalment was to he paid on 28.2.74 According to the prosecution the petitioner delivered only 85 Qs. rice and thus defaulted in making payment of the total quantity as agreed upon and non -payment of thereof is an offence punishable under Sec. 7 of the E.C. Act, as the levy Order, referred to above, was made under Sec. 3 of the Act.

(2.) On account of the omission made by the petitioner the Marketing Officer submitted a report stating the facts constituting the offence on the basis of which the court below took cognizance and the petitioner was thus summoned.

(3.) Mr. N.K. Agrawal, learned counsel appearing on behalf of the petitioner, has raised very short point for consideration, at the Bar. The learned counsel has submitted that the Bihar Paddy Procurement Order, 1973, has already been declared to be ultravires by a Bench of this Court in C.W.J.C. No. 167 of 1974 decided or, 30th September, 1974. It has been contended that in view of the levy -order being ultravires, for the facts alleged against the petitioner, no prosecution can lie for violation of orders made therein. It has been next contended that the petitioner entered into an agreement for payment of levy on 15th of November, 1973. It is stated that, in fact, there was no agreement finally executed, as the petitioner was never communicated of the acceptance of the offer, by the State Government. The contention is that in absence of the Government's acceptance, the offer given by the petitioner, the agreement will not be deemed to be finally concluded, and in this view of the matter the petitioner cannot be made liable as he bears no obligation to pay the minimum quantity of 200 Qs. of rice. Counsel for the State, while counter -acting the points raised by the petitioner's counsel has submitted that, so far the levy order is concerned, a Bench of this Court, while disposing of C.W.J.C. No. 167 of l974, struck down only part of the order and not the whole of it. It was held therein that the guide -line given for fixation of the procurement -price was since not adhered to the fixation of the procurement price was held to be ultravires and not whole of the order. The liability of the petitioner to pay the levy does not cease.