Arun Choudhury vs State Of Jharkhand on 11 November, 2009

Jharkhand High Court
Arun Choudhury vs State Of Jharkhand on 11 November, 2009
            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
2

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].

3

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
4

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
5

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.”

6

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/

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