In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.401 of 2009
With
W.P.(Cr.) No.364 of 2009
Arun Choudhury................ ...............Petitioner
VERSUS
State of Jharkhand and another...Respondents
CORAM: HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioner : Mr. J.K.Pasari
For the State : Mr. R.K.Singh [in W.P.(Cr.) No.401 of 2009]
For the State : Mr.R.N.Roy [in W.P.(Cr.) No.364 of 2009]
2. 11.11.09
As the issue involved in both the applications is same and
similar and the parties are also same, both these applications
were heard together and are being disposed of by this common
order.
In a case bearing W.P.(Cr.) No.401 of 2009, first information
report of Jharia P.S. case no.231 of 2009 (G.R.No.2746 of 2009)
instituted under Section 7 of the Essential Commodities Act, 1955
(hereinafter referred to as ‘the Act’) against the petitioner has been
sought to be quashed whereas in other application bearing
W.P.(Cr.) no.364 of 2009, notice issued on 10.9.2009 under Section
6 B of the Act calling upon the petitioner to show cause as to why
article (sugar) seized in connection with the case, bearing Jharia
P.S. case no.231 of 2009 be not confiscated has been sought to be
quashed.
The facts giving rise these applications are that on
27.8.2009, a team consisting of Sub-Divisional Officer, Dhanbad,
Executive Magistrate, Supply Inspector and others raided the shop
being run as M/s. Shakti Enterprises belonging to the petitioner and
found 152 quintals of sugar stored over there which was seized.
Thereupon, the informant, Supply Inspector, Jharia lodged a case
which was registered as Jharia P.S. case no.231 of 2009 under
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Section 7 of the Act for contravention of the provision of the
Unification Order and also for contravention of the provision of
the Jharkhand Essential Commodities (Price and Stock Display)
Order, 1977 as the stock of sugar, according to the case of the
prosecution, had not been displayed outside the shop.
Learned counsel appearing for the petitioner submits that on
the allegation of storing sugar to the extent of 152 quintals which,
according to the prosecution, is excess than the stock limit fixed
under Notification No.1645 dated 12.8.2009 but, in fact, it is not in
excess, the case has been registered for the contravention of the
provision of the Unification Order and also for the contravention of
the Price Display Order without having any sanction from the
competent authority to prosecute under Section 7 of the Act for
contravention of the provision of the Essential Commodities (Price
and Stock Display) Order and as such, prosecution not only for
contravention of the provision of the Essential Commodities (Price
and Stock Display) Order is bad but even prosecution for violation
of the provision of the Unification Order is bad as the Notification
No.1645 dated 12.8.2009 had never been published in the Gazette
and under this situation, not only first information report is fit to be
quashed but also notice dated 10.9.2009 under which confiscation
proceeding has been contemplated to be initiated is bad and
consequently, sugar seized in connection with the aforesaid case be
released in favour of the petitioner.
Learned counsel further submits that almost in similar
situation, first information report of Kotwali (Pandra) P.S. case
no.584 of 2009 instituted under Section 7 of the Essential
Commodities Act ha been quashed by this Court in a case of Gauri
Shankar Saboo vs. State of Jharkhand and another
[W.P.(Cr.) No.343 of 2009].
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A counter affidavit has been filed on behalf of the State in
W.P.(Cr.) No.364 of 2009 wherein it has been stated that as the
stock of the sugar was found in the business premises of the
petitioner more than storage limit, the petitioner has rightly been
prosecuted and that Notification No.1645 dated 12.8.2009 has
widely been published for information to all concerned in all the
local newspapers and as such, prosecution never gets vitiated
even if the said notification has not been published in the Gazette.
In the facts and circumstances, I feel it appropriate to trace
the background under which present notification, bearing no.1645
dated 12.8.2009 has been issued. After the enactment of the
Essential Commodities Act, 1955, State of Bihar in exercise of
power delegated to it under Section 3 of the Act was pleased to
issue and promulgate Bihar Trade Articles (licenses Unification)
Order, 1984. The Unification Order has defined retail dealer as well
as wholesale dealer in clause 2(p) and clause 2 (u) respectively.
According to clause 3 of the Unification Order, no dealer can carry
on business of purchase, sale or storage for sale of any of the trade
articles mentioned in Schedule I except under and in accordance
with the terms and conditions of a licence issued in this behalf by
the licensing authority under the provisions of this Order. Clause 4
of the Unification Order deals with the grant of licence on payment
of fee prescribed in Schedule IV. Clause 18 of the Unification Order
provides for restriction on the possession of trade articles in
quantity exceeding the limit to be fixed by the State Government.
Subsequently, the Central Government in exercise of power
conferred by Section 3 of the Essential Commodities Act, 1955
issued an order named as Removal of (Licensing requirements
stock limits and Movement Restrictions) on specified Foodstuffs
Order, 2002 whereby restriction earlier put on the matter of
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purchase, stock, sell, transport etc. on wheat, paddy/rice etc. was
removed and thereby dealers were free to deal in the said food
grains. However, the Central Government, vide its Central Order
No.S. O. 1373 (E) dated 29.8.2006 made certain amendments in
the aforesaid order whereby stipulation made in the aforesaid order
with respect to sale, supply, storage, distribution etc. was kept in
abeyance initially for six months which under different orders were
extended time to time. Under that situation, the Secretary,
Department of Food, Public Distribution and Consumer Affairs in
purported exercise of power conferred under Section 3 of the Act,
without having concurrence of the Central Government issued
notification bearing no.1645 dated 12.8.2009 whereby Control
Order, 1984, meaning thereby Unification Order got revived and
consequently, stock limit for food grains such as, rice, paddy,
pulses, edible oil, sugar etc were fixed but that notification
admittedly, was never published in the Official Gazette, though
under Section 18 of the Unification Order it should have been
issued with prior concurrence of the Central Government and the
notification should have been published in the Official Gazette. The
provision as contained in clause 18 of the Unification Order, 1984
reads as under:
“18. Restriction on possession of trade articles- No
person shall, either by himself or by any person on his
behalf, store or have in his possession at anytime any
trade article mentioned in Schedule I and Schedule II
in quantity exceeding the limits fixed –
(i) under an order issued by the Central
Government, or
(ii) by the State Government with prior
concurrence of the Central Government
by issuing a notification in Official
Gazette from time to time.”
Admittedly, the aforesaid notification has neither been
published in the official Gazette nor anything is on record to show
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that said notification has been issued with prior concurrence of the
Central Government. Moreover, the said notification as required
under the aforesaid clause has never been issued by the State
Government, rather it has been issued by the Secretary of the
department.
The intendment of the notification being published in the
Official Gazette is that in case of fixation of stock limit the public
must come to know the same. Therefore, it would not be operative
unless it is published in the Official Gazette and mere printing of
such notice in the newspaper, as has been done by the authority
cannot be equated with the publication of the Official Gazette.
Thus, issuance of the notification prescribing stock limit of
the food grains including sugar never seems to have been done in
accordance with the provisions of he Unification Order and on that
account, any prosecution on the ground of having excess food
grains/ sugar than the stock limit fixed would certainly be quite
illegal.
That apart, the prosecution for contravention of the
provisions of the display order also seems to be bad on account of
the fact that before launching prosecution against the petitioners,
no sanction has been obtained though under proviso to clause (6)
of the display order, it was required to be obtained from he
competent authority. The proviso to clause (6) of the display order
reads as follows:
” 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 the District Magistrate or
Special Officer, In-charge Rationing or
Additional District Magistrate (supply) or Sub-
divisional Magistrate with a limit of their
respective local jurisdiction.”
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Thus, proviso makes it clear that no prosecution shall lie
against any person for contravention of any of the provisions of the
order unless the sanction has been obtained from competent
authority. This proposition of law has been laid down in a case of
M/s. Mithila Cycle Centre vs. State of Bihar [1990(2)
PLJR184]. The said principle has been reiterated in a case of Mali
Ram Agarwal vs. State of Bihar and others [2001(1) East
Cr. Cases 24 (R.B)].
Thus, the prosecution on account of contravention of the
provision of the display order and also on account of contravention
of the provision of Unification Order can certainly be said to be bad
and at the same time any proceeding relating to confiscation of the
article seized would be invalid.
Under the aforesaid situation, continuance of the criminal
proceeding against the petitioner would certainly amount to abuse
of the process of law and, hence, first information report of Jharia
P.S. case no.231 of 2009 is hereby quashed so far the petitioner is
concerned.
At the same time, notice dated 10.9.2009 issued under
Section 6 B of the Essential Commodities Act contemplating to
initiate confiscation proceeding in the aforesaid circumstances is
also quashed.
Consequently, article seized in connection with the said case
is directed to be released forthwith in favour of the petitioner.
In the result, both the applications are allowed.
( R.R.Prasad, J.)
ND/