SHIBSHANKAR SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present application under Section 482 of the Code of Criminal Procedure, 1973 have been filed by the petitioner challenging\ the validity of the order, dated 3-2-1990 by the learned Special Judge,E.C. Act Samastipur in G. R. Case No. 0010 of 1989 by which he has taken cognizance against the petitioner under Section 7 of the Essential Commodities Act (in short the Act only).

(2.) From the first information report which has been filed as Annexure-1 it transpires that on 9-6-1989 an inspection was conducted in the premises of the petitioner, and on inspection 101 Quintals of rice 1 Quintal of Wheat 75 Kgs. of Khesari Dal and 30 Kgs. of Paddy were seized. On being asked the petitioner failed to produce any licence entitling him to carry on business in the said articles as required under the provisions of the Bihar Trade Article (Unification of Licences) Order, 1984. On completion of the investiagation charge sheet was submitted in pursuant was whereof the impunged order of cognizance was passed.

(3.) Mr. N. K. Agrawal, learned counsel appearing on behalf of the petitioner, has assailed the continuance of proseuctioniagainst the petitioner on the ground that even if the facts as asserted in the prosecution report are accepted in their entirety still no offence whatsoever is made out in the eye of law. In support of his submission, by placing reliance on the provisions of the Unification Order and a judgment of this Court in the case of Aditya Flour Mills (P) Ltd. and others V/s. The State of Bihar and others, 1990 2 PLJR 143, he submitted that for dealing in rice and wheat no licence was required at the material time. According to him the charging of clause 3 of the Unification Order provides for obtaining of the licence either by wholesale dealer or a retail dealer defined under clause 2 (p) and clause (n) of the said order. The said definition clauses could have been made operative only by prescribing the outer storage limits for the trade articles in which a dealer intended to carry on business. The said outer limits with reference to the storage of trade articles had been notified by the State Government by Notification GSR 49, dated 17-10-1985. Then another Notification was issused, namely, GSR 57 dated 10-11-1986 wherein it was inter alia provided that for computing the limits of storage for foodgrains, the stocks of rice and wheat will not be taken into account. Therefore, during the continuance of this notification a person carrying on businss only in rice and wheat was not a wholesale dealer or a retail dealer within the meaning of the Unification Order. As such he did not fall within the mischief of charging of use requiring licence. Subsequently the aforesaid notification was superseded by GSR 42, dated 21-11-1987 whereby rice and wheat was again subjected to the storage limits requiring licence for carrying on business. The validity of this notification has challenged at Ranchi Bench of this Court on the ground that the same has been made and entoreced by State Government without obtaining prior concurrence of the Central Government as required in law. The contention have been accepted, the notification was declared as ultra vires the powers of the State Government. The judgement was delivered in Aditya Flour Mills case . Therefore, on the date of occurrence pertaining to the case, i.e. on 9-6-1989, GSR 57, dated 10-11-1986 was holding the filed whereby no licence was required for carrying on business in rice and wheat.