RADHA KISHUN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The inherent power of this Court has been sought to be invoked by the petitioner for setting at rest a criminal prosecution initiated under S.7, Essential Commodities Act and (Rule) 114, Defence of India Rules and Ss.465, 467 and 471, Penal Code.

(2.) The petitioner is a whole-sale licensee under the Bihar Vanaspati Dealers Licensing Order, 1967 (hereinafter to be referred as 'Order') which has been made under S.3, Essential Commodities Act (hereinafter to be referred as 'Act'). This came into force with effect from 7th June, 1967 and under Cl.(3) every person who wanted to carry on business either as a retailer or a whole-seller had to obtain licence. Application for whole-sale licence had to be filed in Form I with the prescribed fee and the Licensing Authority, after being satisfied, used to grant licence in Form-III in which a number of terms and conditions have been mentioned and the licensee under Cl.(9) of the Order was bound to comply with all the terns and conditions and also any other direction issued from time to time either by the State Government or by the licensing authority. The petitioner, after obtaining licence, was working as a wholesale dealer and was the proprietor of the firm known as M/s. Rameshwar Lal Radha Kishun, Marufganj, Patna City. The shop was inspected by the Deputy Superintendent of Police (Food) in which a number of irregularities were found and thereafter a written report was filed before the Police, copy whereof has been filed and marked Annexure-1. It has been stated in the report that the petitioner sold tins of Vanaspati oils to different persons but on enquiry it was found that all the sales were fictitious. Persons to whom the sale was made, on enquiry, denied the transaction and it was also found that the persons, who were named as purchasers, were not traced and were non-existent. The last portion of the report is as follows :

(3.) Mr. Narmadeshwar Pandey, learned counsel appearing on behalf of the petitioner, has contended that the facts constituting the offence are not made out as required under S.11 of the Act and, therefore, the Order taking cognizance is fit to be quashed. He has, further, submitted that it is not incumbent on the whole-sale licensee to verify whether the purchasers were real or fictitious and even if the names given are of persons who are non-existent, that will not amount to any offence under the aforesaid order. He has, further, submitted that for the first time direction was issued by the District Magistrate as the licensing authority on 15th March, 1974 that details of the purchasers should be verified before the sale is effected and there was no such provision earlier. A copy of the direction issued by the licensing authority has been filed and marked as Annexure-3. In support of his contention reliance has been placed on an unreported decision of this Court where similar points were involved in the case of Bharat Prasad v. State of Bihar, Cr. Misc. No.558 of 1974 disposed of on 3-10-1978. Mr. Lala Kailash Bihari Prasad, appearing on behalf of the State, has, on the other hand, submitted that the learned Magistrate was fully justified in taking cognizance and on a plain reading of the first information report and the charge sheet offences have been made out and this has to be thrashed out in the trial and this Court should not interfere. This case came up before me when I was sitting singly and similar arguments were also advanced before me but in view of the Cl.(4) of the terms and conditions of the licence, I doubted the correctness of the aforesaid unreproted decision and by my order D/- 1-8-1980 I directed this case to be placed before a Division Bench and that is how this has come before us.