MANGAL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision has been directed against an order dated the 14th of February, 1968, passed by the Subdivisional Magistrate of Bhabua directing the sale of certain seized quantity of food grains belonging to petitioner No. 1 in a case instituted under section 7 read with section 9 of the Essential Commodities Act.

(2.) In order to appreciate the contention of the petitioner it is necessary to state a few facts. Petitioner No. 1 Mangal Singh is the proprietor of a Him styled "Shivadutt Singh Babban Singh doing business at Mohania in the district of Shahabad as food-grains dealer and he holds a licence under the Bihar Foodgrains Dealers' Licensing Order, 1963. Petitioners 2, 8 and 4 are his relations whereas petitioner No. 5 is his munib. On the 26th November, 1965, Slid S, Khan, Deputy Superintendent of Police (Anti .smuggling) accompanied by Shri S. S. Shastri, a Magistrate and Supply Officer, inspected the gola of petitioner No. 1 and found more than 271 quintals of different varieties of food-grains in excess of the quantity shown in the stock register. They sealed the stock and a case was instituted at the Mohania Police station on the same day at 9.45 P. M. by the Deputy Superintendent of Police (Anti-smuggling). Side by side the Magistrate Mr. Shastri submitted a report of this fact to the Subdivisional Magistrate, Bhabua. On receipt of the report, the Subdivisional Magistrate directed the actual verification of the stock by the Magistrate and it was found that the stock of various food-grains, found in excess was to the extent of 271 quintals and odd. During the pendency of the case the petitioners came to this Court in the present revision in February, 1966 and got the proceedings stayed. The stock of foodgrains which had been seized by the officers concerned were in the meantime, released to the petitioners in March 1966 and after completion of the investigation, charge-sheet was submitted by the officer in-charge of Mohania Police station in June, 1966 against petitioners Nos. 1 and 5. That being so, petitioners 2, 3 and 4 are not now concerned with the proceeding in question. The subdivisional Magistrate, however, has not taken any step in the case up till now on account of the order of stay passed by this Court in this revision. Even though the seized stock has been released to the petitioner it is contended on their behalf that the proceeding should be quashed.

(3.) Mrs. Dharamsheela Lall, appearing for the petitioners, has urged that the excess stock of foodgrains found in the premises of the cola belonged to different small dealers who had kept that stock there temporarily and a note to this effect had been made in the remarks column of the stock register but the Magistrate and the Deputy Superintendent of Police did not take notice of this valid explanation and instead prosecuted the petitioners on insufficient grounds. Mrs. Lall's argument is that before the initiation of a proceeding in such a case, it is incumbent upon the inspecting or prosecuting officer to take into account any explanation offered by the dealer and the failure on the part at the officer to do so renders the proceeding invalid. In support of her contention Mrs. Lall has reiied upon a Single Judge decision of this Court in the case of Brij Be had Lal v. A. Mukherjee, 1986 BLJR 432. The following observations made in the case are important :--"The terms of the license require completion of the accounts by a licences 'unless prevented by reasonable cause'. This opportunity has indeed to be given to a licencee by inspecting officer himself and not that such a plea would be open (sic) to a licensee only in court. The term is very clear and it occurs in the form of the licence itself. It is, therefore, for the inspecting authority to get satisfied on taking explanation from the licencee as to the cause for the non-completion of the daily accounts, and any report, in absence of such an opportunity being given to the licencee, can well be treated as a denial of natural justice. The report of the inspecting officer for launching a prosecution against a licencee must be a proper report. The inspecting Officer did not give an opportunity to the licencee to explain for the non-completion of the accounts and the denial of such an opportunity would render the report invalid, and, no court should take cognizance on such an incomplete report. Such being the position, the taking of cognizance of the offence by the learned Subdivisional Magistrate if it is treated as validly taking the cognizance, was without any proper report and, therefore, the whole proceeding is vitiated."