JUDGMENT
Choudhary S.N. Mishra, J.
1. This case was heard on the 17th November, 1997, and Mr. Ganga Prasad Roy, learned Additional Advocate General HI was requested to produce the Gazette Notification regarding fixation of the storage limit. Again, this appeal was listed on the 24th November, 1997 and at the request of the learned Addl. Advocate-General III, this case was adjourned. Today, the Addl. Advocate-General III has appeared and submits that apart from the letter, dated the 11th October, 1974, by which the storage limit was fixed, there was no Gazette Notification showing fixation of storage limit in terms of the provisions contained in the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as the 1984 Order’). Accordingly, this appeal is being disposed on the record and in the light of the submissions made by the learned Counsel for the appellant.
2. This appeal arises out of the judgment and order dated 17.2.1988 passed by the learned Special Judge (E.C. Act), Vaishali at Hajipur in G.R. Case No. 1926 of 1984, whereby the appellant has been convicted under Section 7 of the Essential Commodities Act, 1955 as amended by the provisions of the Essential Commodities (Special Provisions) Act, 1981, for violation of the provisions of the Bihar Foodgrains Dealers Licensing Order, 1967, and the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977, and sentenced to undergo rigorous imprisonment for one year and further to pay a fine of Rs. 2,000/-.
3. On the basis of the Licence having been granted under the provisions of the Bihar Foodgrains Dealers Licensing Order, 1967, (hereinafter called the 1967 Order’), the appellant was carrying on his business in one of the rooms, which was taken on rent from one Chhatu Lal Sah (D.W.1). It is alleged that on 13.10.1984, in absence of the appellant, the Supply Inspector, in the company of officials of the department, inspected the business premises of the appellant after breaking open the lock of the shop. In course of inspection, the foodgrains and other relevant papers were seized. The sum and substance of the allegations were that the appellant had failed to display the stock position on the display board and further in possession of the foodgrains more than the prescribed limit. On the aforesaid allegations, a first information report was lodged with the Sarai Police Station giving rise to Sarai P.S. Case No. 68, dated 14.10.1984, against the appellant and said Chhathu Sah. After usual investigation, the Investigating Officer submitted a charge-sheet against the appellant on the basis of which cognizance was taken for an offence punishable under Section 7 of the Essential Commodities Act against the appellant.
4. The prosecution examined altogether five witnesses in support of its case. P.W. 1 is Janardan Prasad Shrivastava, who is the informant in this case. P.W. 2 is Md. Safique Ansari, P.W. 3 is Baiju Lal Sah, P.W. 4 is Umesh Kumar Singh and P.W. 5 is Sukh Lal. Out of the aforesaid P.Ws. 2 to 4, P.Ws. 4 and 5 are the formal witnesses, who have proved the first information report. Two witnesses were also examined by the defence, namely, D.W. 1 Chhathu Lal Sah and D.W. 2 Gopal Choudhary. The trial Court, on consideration of the evidence on record, found the appellant guilty of the charge under the aforesaid Orders and sentenced him to undergo rigorous imprisonment for one year and further imposed a fine of Rs. 2,000/-, as stated above.
5. Learned Counsel for the appellant has challenged the judgment and order, dated 17.2.1988 passed by the trial Court, firstly, on the ground that in absence of the proper sanction by the competent authority, the conviction of the appellant for violation of the Display Order, 1977 is not sustainable in the eye of law and, secondly, in absence of the storage limit, the provisions of the Unification Order itself is not workable. In support of his contention, learned Counsel relied upon a decision of this Court in the case of Om Udyog and Anr. v. The State of Bihar, reported in 1990 (2) PUR 321, learned Counsel for the appellant submits that till 13th October, 1984, no storage limit was fixed by the competent authority in terms of the aforesaid 1984 Order. It is further submitted that though on 11.10.1974, by an Executive Order, the storage limit was fixed, yet the same was not published in the official Gazette. In course of hearing, a copy of the said letter was produced. It is submitted that in absence of the official Gazette notification, fixing storage limit, the dealers cannot be held guilty for preserving foodgrains more than the prescribed limit. In order to ascertain as to whether the storage limit fixed by the Executive Order was published in the official Gazette, the case was earlier adjourned at the request of the learned Addl. Advocate General III. Today, he has frankly stated that there is no such Gazette notification available in the department. Thus, it follows that when the inspection of the shop of the appellant was held on 13.12.84, there was no storage limit fixed by the competent authority in terms of the Order aforesaid and, as such, in absence of the storage limit, one cannot be prosecuted for keeping the foodgrains beyond storage limit. The accused appellant is admittedly a retail licensee. In absence of the Gazette notification fixing the storage limit of the foodgrains, the appellant cannot be held guilty of the charges framed against him. As regards the non-display of the prices and stocks of the foodgrains on the display board, it is submitted that no sanction has been accorded in accordance with the provisions of the 1977 Order. In this connection, proviso to Clause 6 of the Display Order, 1977 reads as follows:
6. Power of entry, inspection, search, seizure, etc.–Any Commissioner, District Magistrate, Sub-divisional Magistrate or any Executive Magistrate, Deputy Director of Food and Civil Supplies, Additional Collector (Supply), District Supply Officer, Additional District Supply Officer, Rationing Officer Deputy Rationing Officer, Assistant Rationing Officer, Circle Officer, Block Development Officer, Project Executive Officer, Assistant Project Executive Officer, Marketing Officer, Assistant Marketing Officer, Supply Inspector, Police Officer not below of any other officer not below the rank of Sub-Inspector of Police the rank of Executive Magistrate authorised by the State Government in this behalf may with a view to secure compliance with this Order or satisfying himself that this Order has been complied with-
(a) xx xx xx xx (b) xx xx xx xx (c) xx xx xx xx Provided that no prosecution shall lie against a person for contravention of any of the provisions of this Order unless the same has been sanctioned by Rationing or Additional District Magistrate (Supply) respective local jurisdiction.
It is submitted that though the Sub-Divisional Magistrate has authorised the Supply Inspector to initiate a proceeding under Section 7 of the Act, yet it cannot be said to be a valid sanction Order in terms of the provisions aforesaid. It is submitted that the authority, without applying his mind, has directed the Supply Inspector to initiate the instant proceeding against the appellant, which is wholly illegal and uncalled for. In, support of his contention, learned Counsel has relied upon a decision of the Apex Court in the case of Md. Iqbal Ahmad v. State of Andhra Pradesh, , wherein, it has been held that it in incumbent upon the prosecution to prove that a valid sanction has been granted by the appropriate authority after having satisfied himself that a case for sanction has been made out by the prosecution. It has further been held that the prosecution initiated without valid and proper sanction, the entire proceedings are rendered void ab initio. The facts of the case and the principles of law, as stated above, are not being disputed by the learned Addl. Advocate-General III. From a perusal of the order passed by the Sub-divisional Magistrate directing the Supply Inspector to initiate a proceeding without applying his mind, in my view, vitiates the entire proceedings. In the instant case, the prosecution has neither produced any positive evidence before the sanctioning authority, nor the sanctioning authority has applied his mind before directing the Supply Inspector to initiate the instant proceeding against the appellant. In absence of the valid sanction order, as envisaged under the 1977 Order, the very initiation of the proceeding for violation of the said Order is, in my view, void ab initio and cannot be sustained in the eye of law. In the result, it has to be held that the learned Sub-divisional Magistrate, who is the sanctioning authority, has not properly applied his mind and has directed the Supply Inspector to launch the proceeding, which is per se, illegal and for the reasons stated above, the judgment and order passed by the Special Judge (E.C. Act), Vaishali at Hajipur, dated 17.2.1988, in G.R. No. 1926 of 1984, which is under challenge in the instant appeal is hereby set aside and, consequently, this appeal is allowed.