GYASIRAM Vs. STATE

JUDGEMENT

(1.) THIS is a reference under Section 439 Cr. P. C. by the Sessions Judge, Bharatpur in a case under Section 3 read with Section 7 of the Essential Commodities Act (No. X of 1955, hereinafter called the Act) and arises under circumstances presently to be mentioned.

(2.) THE accused petitioner is a food-grain dealer holding a license under the rajasthan Food-grains Dealers Licensing Order, 1958, (hereinafter referred to as the Order of 1958 ). On the 14th November, 1958, the Tehsildar, Bnaratpur, who is the licensing authority in this class of case, inspected the petitioner's shop. He discovered that the petitioner was not maintaining account-books or receipt-books' properly as required under the conditions of the license. Consequently, he reported the matter to the police at Bharatpur. After the usual investigation, the police challaned the petitioner for an offence under Section 3 read with Section 7 of the Act for failure to maintain accounts as stated above in the court of the Special Magistrate, Bharatpur. The learned Magistrate framed a charge against the accused for contravening conditions Nos. 3 and g of the license issued under the Order of 1958. Condition no. 3, broadly speaking, requires that the licensee shall maintain a register of daily accounts for each of the foodgrains for which license has been given to him, showing correctly the opening stock and the closing stock on each day together with the quantity received less the quantity delivered. Condition No. 5 lays down that the licensee shall issue to every customer a correct receipt or invoice giving the necessary particulars mentioned therein and that he shall keep a duplicate of the same to be available for inspection on demand by the licensing authority or any officer authorised by him in this behalf. The accused went up in revision against the order of charge. His case was that the particular breach for which he was being prosecated fell under Section 3 (2) (i) of the Act and that it was punishable under Section 7 (1) (a) (i) with imprisonment for a term which may extend to one year only (apart from fine) and on this submission it was further contended that it was a non-cognizable offence and triable as a summons case, and, therefore, the police had no power to investigate the case nor the Magistrate to take cognizance of it on a police report, and, therefore, the whole prosecution be quashed and the accused be discharged. The recommendation of the learned Sessions Judge is that the submission of the petitioner that his prosecution properly fell under Section 3 (2) (i) of the Act and that the same was punishable" under Section 7 (1) (a) (i) with an imprisonment for a term which may extend to one year only is correct, and that being so, the offence was a non-cognizable, one and the investigation by the police into this offence was irregular. The learned Judge was, however, further of the opinion that the trial had not been completed in this case but was in an initial stage only and, therefore, the charge be quashed and the Magistrate be directed to try the case in accordance with the procedure laid down for the trial of a summons case.

(3.) I have heard learned counsel for the petitioner and learned counsel for the state, and carefully examined the law bearing on the subject. Learned counsel for the State opposes the reference, his principal submission being that the petitioner was a license-holder under the Order of 1958 and his case therefore fell to be governed by Clause (d) of Sub-section (2) of Section 3 and not by Sub-section (2) (i) thereof as urged by learned counsel for the petitioner, and in that view of the matter, it is maintained that the offence for which the petitioner is being prosecuted would fall under Section 7 (1) (a) (ii) and not under Section 7 (1) (i), and consequently the offence with which the accused petitioner was charged is punishable with imprisonment for a term of three years and is cognisable and triable in the manner of a warrant case and, therefore, both the investigation and the charge were perfectly proper. Section 3 (2) (d) provides for an order to be made for regulation of the storage, transport, distribution, disposal, acquisition, sale or consumption of an essential commodity by license, permit or otherwise.