Patna High Court
Jagannath Prasad Kesari vs State Of Bihar on 7 March, 1968
Equivalent citations: AIR1968PAT506, AIR 1968 PATNA 506, 1968 LAB. I. C. 1510
ORDER K.K. Dutta, J.
1. The petitioner, Jagannath Prasad Kesari alias Chirai, who is an accused in a case pending before a Munsif Magistrate, First Class. Buxar, and in which charge under Section 24 of the Industries (Development and Regulation) Act, 1951 has already been framed against him, has filed the present petition in revision for quashing the proceeding relating to the above criminal case.
2. It appears that on receipt of some confidential information, a raid was conducted on 10-7-1964 in the house of one Mangru Ahir of Chausa Bazar, police station Chausa, and as a result of this raid which was conducted in the presence of a Magistrate, 200 bags of cement were recovered from the aforesaid house. It is further alleged that Mangru Ahir had alleged that the bags ot cement had been kept at his place by the present petitioner, who has got a licence for sale of cement. The Officer-in-charge of Buxar police station, who had conducted this raid, thereafter, drew up a formal first information report on the basis of his own report and the investigation of the case was taken up by the same officer. On conclusion of the investigation, a charge-sheet dated 7-11-1964 was submitted to the Sub-divisional Magistrate as against the present petitioner alone and the cognizance of the case was taken by the Sub-divisional Magistrate, Buxar, as per order passed by him on 24-11-1964 on the basis of this charge-sheet, and the case was thereafter transferred to another Magistrate for disposal. After several adjournments on account of various reasons, the case was taken up for framing of charges against the petitioner on 9-12-1966, and on that day a charge under Section 24 of the Industries (Development and Regulation) Act, 1951, was framed as against the petitioner. The petitioner, thereafter, moved the Sessions Court for making a reference to this Court for quashing the proceeding, hut that petition was rejected by the Sessions Judge by his order dated 16-3-1967. Thereafter, the present application in revision has been filed by the petitioner.
3. The main contention on behalf of the petitioner before me is that the Magistrate had no jurisdiction to take cognizance of the case as there has been no compliance of the provisions of Section 27 of the Industries (Development and Regulation) Act, 1951, This section provides as follows:
"No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code."
It is apparent in view of the above provision that before a Court can take cognizance of any offence punishable under this Act, there must be a report in writing of the facts constituting such an offence by a public servant as defined in Section 21 of the Indian Penal Code We have, therefore, to see whether the cognizance of the case has been taken by the Sub-divisional Magistrate on the basis of any such report. As already men-tioned above, the cognizance of the case was taken as per order passed by the Sub-Divisional Magistrate on 24-11-1964 on the basis of the charge-sheet dated 7-11-1964. The report of the Officer-in-charge of Buxar Police Station dated 10-7-1964, which constituted the first information report, was also forwarded to the Sub-divisional Magistrate in due course and had been received by him on 11-7-1964, but as the cognizance of the case had not been taken on the basis of this report and there is no specific allegations about the commission of the acts constituting the offence by the petitioner in that report, it is quite unnecessary to consider whether cognizance could be taken on the basis of this first information report. It transpires, however, that in the charge-sheet as submitted by the Police Officer, who conducted the investigation, there is specific mention of the following facts:
(i) That the accused (i. e. the petitioner) was keeping 200 bags of cement in Chousa in the house of Mangru Ahir without any authority;
(ii) That, the accused did not maintain stock register or cash memo.
It was further mentioned in the charge-sheet that the accused is a licensed dealer in cement and that he had contravened the provision of law. The recital of these facts is followed by an observation by the Officer-in-charge that a prima facie case under Section 7 of the Essential Commodities Act and Rules 125 and 42 of the Defence of India Rules has been made out.
4. On a reference to the provisions of the Bihar Cement Control Order, 1955, it would appear that Clause 5 of this Order provides that "no person shall, after the commencement of this Order, carry on any business as a dealer involving the purchase, sale or storage for sale of cement except under and in accordance with the terms and conditions of a licence." Sub-clause (3) of Clause 5 provides thai the licence would be granted in Form 'C' On a reference to Form 'D', which is in prescribed form of application for licence, it would appear that an application for a dealer's licence must contain the description of the premises where the business is to be carried on, and on a reference to Form 'C'. i. e. the licence form, it would appear that under this Form the place or places of sale or storing for sale of the cement has to oe mentioned in column 2 of the Form. It is thus apparent that if a licensee of cement stores cement at any place other than those mentioned in column 2 of the licence issued to him, that would amount to contravention of the terms and conditions of the licence and would, therefore, constitute an offence under Section 24 of the Industries (Development and Regulation) Act, 1951, as it amounts to violation of the provision of Sub-clause (1) of Clause 5 of the Bihar Cement Control Order, 1955. which has been issued by the State Government in exercise of the powers conferred by Section 25 of the Act read with Section 18-G of the Act. IT was, however, submitted before me in this connection that as there is no express provision in the licence debarring the licensee from storing cement at any place other than the places specified in column 2 of the licence issued in Form 'C'. the licensee cannot be held to have contravened the terms of the licence even if he stores cement at any other place. This contention is evidently quite untenable as the very fact that the licence has been granted with an express provision that the licensee shall 'sell or store for sale' cement at the particular places mentioned in column 2 implies that he is debarred from selling or storing the same for sale at any other place. The terms as embodied in column 3 onwards of the licence form show that certain registers of daily accounts, etc. have got to be maintained by the licensee, while column 6 provides that the licensee shall issue to every customer a correct receipt or invoice containing the particulars as mentioned in this column. It would thus appear that the charge-sheet as submitted by the Police Officer contained a report as to all the facts which constitute commission by the petitioner of an offence punishable under Section 24 of the Industries (Development and Regulation) Act, 1951 It is not disputed that the Officer-in-charge of a Police Station comes within the definition of the term "public servant" as defined in Section 21 of the Indian Penal Code.
5. It was, however, contended before me that the report as embodied in the charge-sheet cannot be considered to come within the purview of Section 27 of the aforesaid Act. as the Officer-in-charge did not apply his mind to the consideration whether the acts and omissions at mentioned in the report constitute an offence under the Industries (Development and Regulation) Act, 1951, as shown by the fact that he had reported about a prima facie case under Section 7 of the Essential Commodities Act and Rules 125 and 42 of the Defence of India Rules as having been made out. I am, however, quite unable to accept this contention as all that Section 27 of the Industries (Development and Regulation) Act requires is that there should be a report before the Court by a public servant, as defined in Section 21 of the Indian Penal Code, of the facts constituting the offence under this Act of which the Court takes cognizance. In the present case, as already pointed out above, the facts as embodied in the charge-sheet submitted by the Police Officer, did constitute an offence under- Section 24 of the Act, ana the mere fact that the Police Officer had expressed his opinion about a prima facie case under Section 7 of the Essential Commodities Act and Rules 125 and 42 of the Defence of India Rules having been made out, could not debar the Sub-divisional Magistrate, or the Magistrate to whom the case was transferred, from taking cognizance under the appropriate section of the Industries (Development and Regulation) Act applicable to the case when the report contained all the facts which constitute such an offence. On behalf of the petitioner reliance was placed on a decision of the Calcutta High Court in the case of Ganga Prosad Kanoo v. Emperor, (1947) 48 Cri LJ 557 (Cal). This was a case under Section 7 of the Essential Commodities Act and I find that all that was held in this case was that a report in writing containing the facts constituting the contravention was a condition precedent to the taking of cognizance of the offence under Section 7 of the Essential Commodities Act in which there is a provision corresponding to the provision of Section 27 of the Industries (Development and Regulation) Act, 1951. Hence, as in the present case, the report submitted by the public servant, namely, the officer conducting investigation contained the facts which constitute the offence under Section 27 of the Act. the contention that the learned Magistrate had no iurisdiction to take cognizance of the offence is held to be quite untenable.
6. It was next submitted before me that the Bihar Cement Control Order, 1955, stood superseded in view of the issue of the Cement Control Order, 1961, by the Central Government. In this connection it wab submitted that as the Cement Control Order, 1961. purported to have been issued for the purpose of securing equitable distribution and availability at fair price of cement and for regulating the supply, distribution, trade and commerce in cement, the earlier Order issued by the State Government must be held to have been superssded as the same field has been covered by the issue of the Cement Control Order, 1961. Now, on reference to the Cement Control Order, 1961 issued by the Central Government I find that this Order deals only with the producers of cement and provides for sale by such producers to the Corporation, that is, State Trading Corporation of India, Ltd. and it also provides for maintenance and production of books of accounts, etc. by such producers and for fixation of the price at which sale by such producers shall be made. The provisions of the Bihar Cement Control Order, 1955, with which we are concerned in the present case, however, relate to the licensing of the dealers of cement and with specification of the places of sale and storage by such licensees and also of maintenance of accounts, etc. by them. As such, the mere fact that both the Bihar Cement Control Order, 1955, and the Central Order, 1961, have been issued for the purpose of ensuring proper and equitable distribution of cement and for availability thereof at fair price, will not necessarily result in the supersession of the Bihar Cement Control Order, 1955, by the Central Order, 1961, unless there is anything in the Central Order, 1961, which is repugnant to or inconsistent with the Bihar Cement Control Order, 1955, or deals with an identical matter. As the Central Order, 1961, deals only with the producers of cement, there can be no question of either any repugnancy between that Order and the relevant portions of the Bihar Cement Control Order, 1955, or any identity of the subject matter of the two Orders. I am, therefore, quite unable to accept the contention that the Bihar Cement Control Order, 1955, stands superseded in view of the issue of the Central Cement Control Order, 1961.
7. The only other point that was submitted before me on behalf of the petitioner is that the proceeding is vitiated as the petitioner was not called upon to give any explanation with respect to the alleged storage of the 200 bags of cement and non-maintenance of books of accounts, etc. before the submission of charge-sheet against him. This point had come up for consideration before a Division Bench of this Court in the case of Ratan Lal Sul-tania y. State of Bihar, 1968 Pat LJR 36, in which a similar plea had been taken. The following observations were made by the Court in this connection.
"To say this, however, should not be taken to lead to the inference that in every case it is desirable for the reporting authority to report for action against a dealer merely because an irregularity in terms of Clause 3(ii) of Form B is detected by him To allow this to be done would amount to launching prose-cution in many cases which will not stand scrutiny and would amount to sheer waste of public time. It is, therefore, desirable that the officers concerned while inspecting the place of business of a dealer should, as required by Clause 3(ii) of Form B, give a chance to the dealer to explain the circumstances. To take recourse to this precaution might in several cases avoid unnecessary prosecution and harassment to the dealer. Where, how-ever this has not been done, but the facts otherwise stated make out an offence, it cannot be held that if the Court taking cognizance has proceeded upon such a report, it is to be quashed as being invalid."
It will thus appear that although the Court held that it was desirable in cases in which irregularities of accounts are detected that the dealer should be given an opportunity to explain such irregularities, it was further held the taking of cognizance even in such cases without such opportunity being given to the dealer cannot be considered to be illegal and as such cannot be set aside. Moreover, the position in the present ease is quite different. It is not a case in which there has been detection of some irregularities in the accounts, but a case in which there has been complete violation of one of the terms of the licence by keeping the bags of cement at a place where the dealer was not authorised to keep the same. His defence in this connection will, no doubt, be duly considered by the trial Court for whatever worth the same may be, but the failure to call upon him to explain why he had kept the bags of cement at the particular place before launching of the prosecution cannot be considered to be a valid ground for hold-.ing that the cognizance of the case has not been taken validly.
8. In view of my findings above, this petition in revision is dismissed.