VISHWANATH SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, who is a food-grains' dealer within the meaning of the Bihar Foodgrains Dealers' Licensing Order, 1963, has been convicted under Section 7 of the ESSENTIAL COMMODITIES ACT, 1955 and sentenced to undergo rigorous imprisonment for six months. The charge against the petitioner is in the following terms:

(2.) It has been found by both the Courts below that on the 14th August, 1964, the petitioner had sold 2 maunds 10 seers of imported wheat to Sheonandan Sah (P. W. 11). The prosecution was instituted against the petitioner on the basis of a police report wherein the particulars of the offence alleged to have been committed by the petitioner were set out as follows:

(3.) With respect to the other part of the charge framed against the petitioner, namely, the charge framed on the basis that he had sold 2 maunda 10 seers of imported wheat to Sheonandan Sah (P. W. 11), the position is that in the Licensing Order, as it stood in 1963, no limitation as to the quantity which could be sold to any particular individual by a retail dealer in foodgrains had been pro. vided. Such limitation came to be fixed subsequently in the Licensing Order, 1966 and 1967. In the retail dealer's licence issued under the Licensing Order of 1966, it was provided, inter alia, that the licensee shall not "sell any foodgrain in quantity exceeding one quintal to any person in one day." Since, however, no such condition existed in the licence granted to the petitioner under the Licensing Order, 1983, it is manifest that the petitioner could not have committed any contravention of the condition of his licence by his act in selling 2 maunds 10 seers of food-grain, which in this cage is imported wheat, to one individual on the same day or in course of one transaction. Condition No. 5 of the licence issued under the Licensing Order, 1968, provides that "the licensee shall not contravene the provisions of the Bihar Foodgrains Dealers' Licensing Order. 1988, or any other order relating to foodstuffs issued under the ESSENTIAL COMMODITIES ACT, 1955, 1955 (10 of 1955)," I have accordingly looked into the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958. But there also no prohibition as to the sale in excess of any particular quantity of imported foodgrains to any one individual or in one transaction is to be found. Therefore, the petitioner could not also be deemed to have contravened condition No. 5 of his licence. There is, however, condition No. 10 of the licence which enjoins upon the petitioner the duty of complying with "any direction" that might be given to him by the State Government or the licensing authority in regard to purchase, sale and storage for sale, of foodgrains and other matters; so that if the petitioner omitted or failed to comply with such direction, then he would be deemed to have contravened condition No. 10 of his licence. In the present case however, the prosecution has led no evidence at all about any direction within the meaning of condition No. 10 of the petitioner's licence. Learned Counsel for the State in this Court also has not been able to bring to my notice any material in support of the fact that the State Government or the licensing authority had issued any direction to the petitioner in the matter of sale of imported wheat from his fair price shop. The learned Additional Sessions Judge, however has taken into consideration an agreement, which the petitioner is supposed to have executed in favour of the State Government in the matter of his fair price shop. The learned Judge has referred to Clauses 6 and 7 of the said agreement, which are in the following terms: