ARJUN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner apprehending arrest in a case registered under Section 7 of the Essential Commodities Act has moved for anticipatory bail. The first information report (Annexure-4) shows that on 18-6-1985 when the petitioner's shop was inspected by the marketing officer certain irregularities were found, such as, there was no display of stock and prices of kerosene oil and sugar were sold by the petitioner at prices higher than the fixed rate and that the petitioner was selling essential commodities, but was not issuing cash memos to the customers.

(2.) Mr. Bharuka, learned counsel for the petitioner, has contended that there being no valid Control Order in force in terms of Section 3 of the Essential Commodities Act on 18-6-1985, the allegations levelled against the petitioner, even if true, will not attract Section 7 of the Essential Commodities Act. He has placed reliance upon various provisions of the Bihar Trade Article (Licences Unification) Order, 1984. The said Order with its publication under G.S.R. 452 (E) dated 25th October, 1972, and under S. O 681 (E) and 682 (E) dated the 30th November, 1974 with the prior concurrence of the Central Government made the then existing Control Orders inoperative subject to the provisions embodied under clause 3 (2) (b) of the Unification Order. The Unification Order has defined a dealer to mean a person engaged in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and so include his representative or agent, subject to the exceptions enumerated therein. Trade article has been defined to mean any commodity men tioned in Schedule I or Schedule II of the Order. Besides defining a dealer, the order has also defined a wholesale dealer to mean a person engaged in the business of purchase, sals or storage of any article for purposes other than personal consumption within the storage limit fixed by the Government from time to time and a 'retail dealer' to mean a person engaged in the business of purchase, sale or storage of any article for purposes other than personal consumption within the storage limit fixed by the Government from time to time. Clause 3 of the order has put an embargo to the effect that no dealer shall after the commencement of the order carry on business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule I except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of the order. To this, however, there are two exceptions, one, that no licence shall be required for a dealer who stores for sale at any one time the trade articles in quantities not exceeding the limits as may be prescribed by the State Government with prior concurrence of the Central Government for any trade article from time to time and, second, that a dealer holding a valid licence of trade articles under the various Licensing Orders mentioned in Schedule III may obtain a licence for the same trade articles under that order within thirtieth day of the commencement of the order. It says categorically "His existing licence shall be deemed to be a licence issued to him as a dealer under this order up to the said day". Clause 4 which provides for issue of licence says that application for the grant of a licence (wholesale or retail) shall be made to the Licensing Authority in a prescribed form along with the fee prescribed in Schedule IV. The scheme of the Unification Order leaves no manner of doubt that a licence is required for wholesale or retailer dealing in trade articles. The provisions for deposit of security show clearly that only wholesale and retail traders arae required to take a licence. Schedule I of the order contains a list of foodgrains, pulses, oil-seeds, edible oils and other articles which are covered by the order. Schedule II contains a list of various kinds of articles which too are subject to the provisions of the Order. Schedule III contains a list of order repealed. The list contains Licensing Orders including the Bihar Sugar Dealers' Licensing Order, 1963 and the Bihar Kerosene Oil Dealers Licensing Order, 1965.

(3.) Mr. Bharuka has brought to my notice that finding it not possible to control the trade in various trade articles covered by Control Orders repealed by the Unification Order, as necessary notification making identification of a retail dealer or wholesale dealer possible, second proviso to clause 3 of the order was amended and the time limit within thirtieth day of the commencement of the order was extended from time to time, the last extension having expired on 15-4-1985. However, there is no further extension made by the State Government. On 18-6-1985 that is to say, the date on which the inspection was allegedly made by the marketing officer, there was no Control Order in froce. There is sufficient force, in my view, in the contention of Mr. Bharuka that the Unification Order coming in force after its publication as required under the Bihar and Orissa GeneralClauses Act, the Bihar Sugar Dealers' Licensing Order, 1963 or the Bihar Kerosene Dealers' Licensing Order, 1965, could not operate, after 15-4-1985. The position, however, in regard to display of prices and stock appears to be different. Clauses 15 of the Unification Order says that every trader in compliance with the provisions of Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 and various amendments as made thereto by the State Government by notifications issued from time to time display the prices and stocks of articles (which he trades) mentioned in Schedules I and II of the aforesaid order written legibly in Hindi in business premises or such near places which may be clearly visible, provided also the articles so displayed shall not exceed the retail price, so fixed or recommended by the Central Government or the State Govern- ment or manufacturer or distributor from time to time ia respect of that category of trade article. Trade articles envisaged under clause 15 (i) are those mentioned in Schedules I and II of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977. It is not contended before me that there is no selling price either for retail or wholesale fixed for the sale of sugar and kerosene oil and that sugar and kerosene oil are not included in the Schedules of the Bihar Essen tial Articles (Display of Prices and Stocks) Order, 1977. One allegation against the petitioner is that he had not displayed the stock and the prices as required under the Control Order. The other allegation against him is that he has been selling kerosene and sugar at prices higher than the prices fixed for the said purpose. These allegations even after Unification Order, in my view, are sustainable, because clause 15 of the Unification Order continues the Bihar Essential Articles (Display of Prices and Stocks) Order 1977.