NEMI CHAND GOYAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 482 of the Cr.P.C. filed by the petitioner for quashing of the First Information Report dated 5-11-1998 in connection with Bermo P.S. Case No. 126 of 1998 under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') pending in the Court of Special Judge, E.C. Act, Bermo at Tenughat.

(2.) The facts giving rise to this case are as follows :- The petitioner is a licensed retail dealer as per license No. 19/91 issued under the provisions of Bihar Trade Articles (Licence Unification) Order, 1984 (hereinafter referred to as 'Unification Order') for dealing in sugar, food-stuffs, edible oils including hydrogenated oil at his shop situate at Kargali Bazar, P.S. Bermo, District Bokaro and the business premises of the petitioner was inspected by Sri Hari Mohan Singh, Supply Inspector, Chandrapura, the informant, along with other officials. It is alleged that in the course of inspection rice, wheat, edible oils were found in his unauthorised godown situated in the house of one Devendra Singh behind the business premises of the petitioner as well as in his authorised business premises. It is alleged that in the unauthorised godown 110.50 quintals of rice, 18.50 quintals of pulse, 3 quintals of sugar and 3.60 quintals of edible oils were found and in the authorised business premises 3.15 quintals of Soya bean refined oil and 3.19 quintals of mustard oil, 2.18 quintals of sugar, 80 Kgs. of rice and 30 Kgs. of pulse were found and the aforesaid trade articles were seized and seizure list was prepared. It is further alleged that the petitioner was granted licence to carry on the business in his business premises as described in the licence but he has contravented the terms of the licence and price display order. A written report was lodged before the Bermo P.S. by the informant on 5-11-1998 and a case under Section 7 of the Beermo P.S. by the informant on 5-11-1998 and a case under Section 7 of the Essential Commodities Act has been instituted against the petitioner.

(3.) It has been submitted by the learned counsel for the petitioner that the allegations disclosed in the written report of the informant do not at all constitute any offence against the petitioner and no provision of the Act aforesaid as well as of the Unification Order or any other Control Order stands contravened by the petitioner and as such there is manifest error by the informant in setting the law in motion against him and the institution of the F.I.R. against the petitioner in the facts and circumstances of this case is nothing but an abuse of the process of law. It has also been contended that no offence is at all made out against the petitioner even if the entire allegations are accepted to be true. Elucidating further it has been contended that the Central Government by letter dated 27-1-1995 (Annexure 8 of this petition) decided to abolish the stock limit of rice and wheat and in this view of the matter the provision of Unification Order is inapplicable in respect thereof as for the application of the Unification Order, fixation of stock limit is sine qua non. Rice and wheat appear at serial 6 and I respectively in Schedule 1 Part a (Food grains) of the Unification Order. Section 3 of the Act has empowered Central Government by order to make provision for regulating and prohibiting the control, production, supply, and distribution of essential commodities, and Section 5 of the said Act empowers the Central Government to delegate its power to the State Government to make orders or issue notification under Section 3 of the said Act and in pursuance thereof Central Government has delegated power to the State Government by notification being G.S.R. No. 800 dated 9-6-1978 and in this view of the matter the delegated authority is bound to follow the directions of the Central Government in respect of removal of the stock limits of rice and wheat and in the case law reported at (2002) 2 JCR 303 the power of delegation has been considered and it has been held that State Government is bound to obey the order of the Central Government and since stock limit stands delegated to the State Government in respect of rice and wheat in the year, 1995, the Unification Order, thus, becomes inapplicable. Regarding the pulse it has been submitted that no licence fee has been prescribed regarding the pulse as described in clause 4(1)(d) in Part II and index VI of the Unification Order and in the case of Om Prakash Bhartia (Cr. W.J.C. No. 412 of 1991) it has been held by Hon'ble Patna High Court that since no licence fee has been prescribed for the pulse, it cannot be said that pulse has been bright within the purview of Unification Order and similar view has also been echoed in the the case of Mali Ram Agarwal 2001 (1) East Cri C 24 (RB) and the First Information Report was accordinlgy quashed. Regarding edible oils it has been submitted that the Central Goverment by S.O. 772 (E) dated 10-11-1997 makes certain amendments in the Pulse, Edible Oils, Oil Seeds Storage Control Order, 1997 in which oil seeds and edible oils were deleted in the said Order and a request was made by the Central Government under S.O. 359 (E) dated 23-12-1997 to amend their respective Orders accordingly in respect of edible oils and edible oil seeds and the State Government in pursuance of S.O. 772 (E) dated 10-11-1997 directed all the Commissioners and the District Officers vide letter No. 5806 dated 14-7-1998 to act as per the amendment aforesaid and, thus, no licence is required to deal in edible oils and there being no storage limit in respect of edible oils, Section 7 of the said Act has no application and the prosecution of the petitioner is without jurisdiction. Furthermore the Unification Order is also inapplicable in respect of edible oils as 'A', 'B' and 'C' City has not been defined in the Unification Order. Regarding sugar, it has been contended that sugar is a trade article under the Unification Order but no licence is required for a dealer who stores for sale at in 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 articles from time to time and the storage limit has been fixed by the State Government by notification No. G.S.R. 49 dated 17-10-1985 and clause 8 of the said notification states that the the retail dealer in sugar means a person who had at any time stored sugar for purchase, sale or storage purposes other than personal consumption for a quantity exceeding five quintals and not exceeding 50 quintals and in the instant case only five quantals of sugar has been found in possession of the petitioner which was seized and, thus, the recovery of five quintals of sugar, as alleged, is within the storage limit prescribed by the Unification Order. Lastly it has been contended regarding the trade articles being kept for black marketing and hoarding that till date neither the Central Government nor the State Government has fixed any price in respect of any trade articles and even the F.I.R. does not disclose any fixed price in respect of any commodity recovered and seized from the godown and business premises of the petitioner and, as such, this aspect of the prosecution case has no leg to stand.