RAMESHWAR PURBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing of the cognizance taken against the petitioners by the Chief Judicial Magistrate, Samastipur, under rule 114 of the Defence of India Rules and section 34 of the Money Lenders Act, 1974 by his order dated 29. 5. 1976.

(2.) The aforesaid cognizance has been taken on the basis of a charge-sheet submitted by the police against the petitioners. The charge-sheet in its turn was based upon a first information report lodged on 28. 9. 19/5 by the Supply Inspector, Rosera, through the Block Development Officer, Rosera, to the officer incharge Rosera police station. A copy of the aforesaid first information report has been marked annexure 1. The relevant portion of the first information report which needs to be reproduced here runs as follows : By not producing the "Account Books for the articles found and exhibiting the price of Hosiery goods the dealer bhri Vinod Kumar Purbey son of Shri Rameshwar Purbey and Shri Rameshwar Purbey son of Shiblal Purbey has contravened the provisions of Stock and Price Display Order, 1975 and Money Lenders Act, 1974".

(3.) Learned counsel for the petitioners submitted that Bihar Essential Articles (Display of Prices and Stocks) Order, 1975 (hereinafter to be called as the Display Order) is not applicable to hosiery goods. The definition of the term 'Article' in clause 2 (a) of the Display Order "defines article as meaning any essential commodity mentioned in Schedules I and II appended to the Order and as also including any other article to be declared so from time to time by the State Government in schedule II of the Display Order item no, 5 mentions 'cloth' as being an article within the meaning of the Display Order, While on the one hand learned counsel for the petitioners contended that the term cloth cannot include hosiery goods Mr. Mahendra Kant Choudhury, learned counsel for the State on the other hatid contended that the term 'cloth' in item no. 5 of the schedule of the Display Order was wide enough to embrace within its sweep hosiery goods. In my view the contention of the learned counsel for the petitioners is well founded and that put forward by the learned counsel for the State cannot be held to be tenable in law. The plain dictionary meaning of the term hosiery is "knitted goods". The term cloth mentioned in the Display Order cannot be stretched to include within its field "knitted good" like hosiery goods. I may in this context refer to a Bench decision of this Court in Sri Ram Hosiery Works v. the State of Bihar [(1974) 34 S. T. C. 320]. That was a case under the Sales Tax Act. The expression cotton fabrics used in the notification dated the 1st July, 1959, was held not to include hosiery cloth. While dealing with that question under the Sales Tax Act the Bench of which I was a member reviewed a large number of decisions. Reference was made in Sri Ram Hosiery Works' case (supra) to a number of decisions of the other High Courts. For instance this Court agreed with the view of Hyderabad High Court in Sharifaji Rao v. Commissioner of Sales Tax (1953) 4 S. T. C. 6 which had held that ready-made garment made of cloth were different from cotton cloth. The decision of Allahabad High Court in the case of Lakshmiratan Cotton Mills Co. Ltd. v. Sales Tax Officer Sector II Kanpur, (1962) 13 S. T. C. 1031], was also approved. The Allahabad High Court had pointed out the difference between the term "cloth" and "clothes" and it had held that the former is what comes straight from the weaving of textile factory and the latter are articles after "cloth" has been converted by cutting and stitching and something has been done to 'cloth' either by human or machine agency to make that cloth into a garment or wearing apparel. From "hosiery cloth" are manufactured banyans. Therefore, banyans will be surely different from hosiery cloth. Again reference was made to the case of Commissioner of Sales Tax, Madhya Pradesh v. Mahajan Bros, (1963) 14 S. T. C. 808. The Madhya Pradesh High Court had pointed out that there was a clear distinction in the English language between "garment" and "hosiery". It was emphasised at page 811 "Again a garment is made of cloth whereas hosiery goods or not made of cloth but are knitted out of woolen or silken or cotton or linen threads", (underlining is mine). It is therefore plain to me either with reference to the dictionary meaning of the terms or with reference to the case-law on the subject that the term 'cloth' in item no. 5 of schedule 11 appended to the Display Order cannot be said to include hosiery goods which are made of materials knitted together. And certainly as the allegations in the first information report show that the petitioners were dealing in hosiery, ganji, Jangia etc., it would be too wide a proposition to say that hosiery "ganji" and "jangia" are included within the term "cloth" mentioned in the Display Order. The prosecution of the petitioners under rule 114 of the Defence of India Rules therefore must be held to be not tenable in law.