Jharkhand High Court
Ganesh Prasad Agarwal @ Ganesh Agarwal vs State Of Jharkhand on 18 January, 2010
Equivalent citations: 2010 (2) AIR JHAR R 487, 2010 A I H C 3478
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 963 of 2005
Ganesh Prasad Agarwal @ Ganesh Agarwal ..... Petitioner
Vs.
1.The State of Jharkhand
2. Kumar Vimal Singh ..... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner: Mr. A.K. Kashyap, Sr. Advocate
For the Opposite Party: Mr. S.N. Rajgarhia, APP
C.A.V. ON 17.12.2009 Delivered On: 18.01.2010
9/ 18/ 01/2010: This is an application for quashing the order dated
15.4.2005passed by learned SDJM, Palamau at Daltonganj in G.R. Case No. 447 of 1999 corresponding to E.C. No. 5 of 1999. The petitioner further prays for quashing the entire proceeding in connection with aforesaid G.R. No. 447 of 1999 corresponding to E.C. No. 5 of 1999.
2. It appears that a raid was conducted in the business premises of petitioner situated at Ward No. 5, Dhobi Mohalla Shantipuri , Daltonganj Township, P.S.- Daltonganj Town, District- Palamau and during the said raid 30 tins of mustered oil 'Dulara Brand' and 5 tins mustered oil 'Anmol Brand' total 35 tins having a weight of 5 quintal and 25 kg seized. It is alleged that on demand of license, the shopkeeper disclosed that he had no license. He also did not furnish any document regarding purchase of aforesaid mustered oil. Thus, informant prima facie concluded that the shopkeeper (petitioner) indulged in illicit sale and purchase of edible oil, which is violative of Bihar Trade Article (License Unification) Orders 1984 (hereinafter referred as Unification Order) punishable under section 7 of the Essential Commodities Act. Accordingly on the basis of written report of informant Daltonganj Town P.S. Case No. 133 of 1999 dated 24.4.1999 instituted and police took up investigation.
It appears that after completing the investigation, police submitted charge sheet. On the basis of said charge sheet Special Judge, E.C. Act, Palamau at Daltonganj took cognizance of the offence vide order dated 18.2.2000. It appears that the said order of cognizance challenged by the petitioner in this court in Cr. Misc No. 6134 of 2000 but the same was permitted to be withdrawn vide order dated 17.01.2001 with liberty to the petitioner to raise all the points at the 2 time of framing of charge. It appears that thereafter the case has been transferred in the file of SDJM, Palamau for trial, where an application under section 239 of the Cr.P.C. has been filed for discharge, which was rejected by learned SDJM, Palamau vide order dated 15.4.2005 on two grounds i.e. the application for discharge is not maintainable as there is no provision in Chapter XX of the Cr.P.C. for discharge of accused and secondly accused-petitioner is dealing in edible oil without any license in violation of Unification Order. Hence he explained the substance of accusation to the petitioner. Against that the present case has been filed.
3. It is submitted by Sri. A.K. Kashyap, Senior Advocate appearing for the petitioner that the Central Government had promulgated Pulses, Edible Oil Seeds and Edible Oils ( Storage Control) Order 1977 fixing the storage limit of edible oil for the wholesale dealer and retail dealer. It is submitted that the aforesaid orders has been amended by the Central Government by an order dated 10.11.1997 issued under section 3 of the Essential Commodities Act ( hereinafter referred as the 'Act') . As per the said amendment the Central Government deleted word " Edible Oilseeds and Edible Oils" from its preamble, title and from all other Clauses so as to confined the order to Pulses only. It is submitted that from the date of issuance of amendment order there remained no Central Order in respect of Edible Oilseeds and Edible Oils. Therefore, it is submitted that part of Unification Order and Notification contained in GSR 49 dated 17th of October 1985 by which a wholesale dealer or a retail dealer required to obtain license for dealing in edible oil has become impliedly repealed. Accordingly, it is submitted that no license required for dealing in edible oil, as such there is no violation of any Control Order by the petitioner. Hence, the prosecution launched against the petitioner is illegal and without jurisdiction. It is further submitted that in any event, since provision contained in Unification Order is repugnant to the amendment made by Central Government in the Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order 1977, therefore, as per Article 254(1) of the Constitution 3 of India, the same is void. It is then submitted that in the Unification Order as well as Notification No. GSR 49 dated 17th October 1985 as amended from time to time, the B and C Class of Cities have not been defined, therefore, no storage limit of edible oils has been fixed for the Township of Daltonganj. It is submitted that under the Unification Order, fixation of storage limit is a sine qua non for obtaining license. As no storage limit has been fixed, therefore petitioner is not required to take any license for dealing in the edible oil. Hence on this ground also the prosecution of the petitioner is liable to be quashed.
4. On the other hand Sri S.N. Rajgarhia, learned Additional P.P. submits that while amending the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977 the Central Government had not repealed the Unification Order or notification issued by the State Government fixing storage limit of edible oil nor the Central Government directed that no license is required for dealing in edible oil under the provision of Unification Order. Therefore, the submission of learned counsel for the petitioner that by virtue of amendment in the aforesaid Central Order, the Unification Order and Notification No. 49 dated 17.10.1985 stand repealed, has no leg to stand. It is submitted that Unification Order has been issued by the State Government in the year 1984 after obtaining the prior concurrence of the Central Government. It is submitted that Central Government delegated the power to State Government for issuance of Control Order under the Act. It is submitted that even though there is no Central Order fixing the storage limit of edible oil, the Unification Order is operative on the date of raid, therefore, petitioner is required to take license for dealing in edible oil. As he did not do so the same is violative of clause 3 of the Unification Order, punishable under section 7 of the Act. It is submitted that by the amendment, Central Government omitted edible oil from the aforesaid Central Order, thus the question of repugnancy does not arise. Accordingly, it is submitted that the second contention of learned counsel for the petitioner is also misconceived and liable to be rejected.
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5. It is further submitted that it is an admitted position that prior to amendment, the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977, is operative in this State. It is submitted that in the aforesaid Control Order category A city, B city and other areas have been defined, which is applicable in this State. It is further submitted that even after amendment in the year 1977 the definition of category A city, category B city and other area remained intact. Thus, the contention of learned counsel for the petitioner that the category B & C City have not been defined, is not correct. Thus, aforesaid contention of learned counsel for the petitioner is worth rejectable.
6. Having heard the submission of both the parties, I have gone through the record of the case. It is an admitted position that in the year 1977 the Central Government issued the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977 in exercise of power conferred upon it under section 3 of the Act. It is also admitted position that even the aforesaid order is in operation, the Government of Bihar issued Unification Order vide Notification No. GSR 9 dated 19th of April 1984 in exercise of the power conferred by section 3 of the Act read with orders of the Government of India contained in GSR 452 ( E) dated 25th of October 1972, 168 (E) dated 13th of March 1973 and 800 dated 8.6.1978. It is worth mentioning that concurrence of the Central Government had been obtained prior to issuance of Unification order. Clause 3 of the Unification Order laid down that any dealer is required to obtain license if he is dealing in any of the articles mentioned in Schedule -I. It is worth mentioning that part -(D) of schedule -I deals with edible oil which includes mustered oil. The Unification Order defines retail dealer as well as wholesale dealer under sub clause (p) and (u) of Clause 2 of the said order. It is also not out of place to mention that the State Government vide Notification contained in GSR 49 dated 17th October 1985 had fixed storage limit of edible oil for retail dealer as well as wholesale dealer under category B and C city. It is also not in dispute that the Central Order by which the storage limit of edible oil was fixed has been amended in the year 1997 and from the said Central Order the 5 word "Edible Oilseeds and Edible Oil" has been omitted from the preamble, cause title and other clauses of the said order. From perusal of the Notification of Central Order ( Annexure-3 of the application) the Central Government has not directed that the Control Order issued by State Government covering the field of edible oil seeds and edible oil will be repealed. The State Government has power to issue Control Order under sections 3 and 5 of the Act with the prior concurrence of the Central Government. Therefore, the Unification Order issued by the State Government, with prior concurrence of Central Government, is valid and remain operative in the State with respect to storage limit of edible oilseeds and edible oil. Under the said circumstance, I am of the view that the first contention of learned counsel for the petitioner that by virtue of amendment of Central Order, the State Order impliedly been repealed, is not acceptable. Hence, rejected.
7. The second contention of Sri Kashyap that the Unification Order, so far it relates to Edible Oilseeds and Edible Oil, is repugnant to the amendment Order of Central Government, by which "the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977" has been amended. Therefore, the same is void as per Article 254 (1) of the Constitution of India. The aforesaid submission of Sri. Kashyap appears to be misconceived. For better appreciation, Article 254(1) of the Constitution of India is quoted hereinafter:-
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of State -(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2) , the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or , as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. "
From the plain reading of aforesaid provision, it appears that mischief of Article 254(I) will apply if there are two laws on the same subject, one enacted by Parliament, another made by Legislature 6 of a State and there are repugnancy in the provisions of aforesaid two laws. Then in that event only to the extent of repugnancy the law enacted by the Legislature of the State shall be void. In the instant case after the amendment of Pulses, Edible Oilseeds and Edible Oils ( Storage Control) Order 1977 the words "Edible Oilseeds and Edible Oil" have been deleted from the aforesaid Central Control Order. Under the said circumstance there is no conflict between Central Order and Unification Order, because Central Order cease to govern the fields in relation to Edible Oilseeds and Edible Oil. As there is no two laws, governing the field of Edible Oil Seeds and Edible Oil, the question of application of the provision of Article 254(1) of the Constitution of India does not arise. Hence the contention of Sri Kashyap have no leg to stand, therefore, rejected.
8. Now coming to the last contention of Sri Kashyap , it is worth mentioning that as admitted by the party, prior to the year 1997 the Central Order, namely, Pulses, Edible Oilseeds and Edible Oil ( Storage Control) Order 1977 is operative in the territory of India which covers the field of Pulses, Edible Oilseeds and Edible Oil. In the aforesaid Central Order, category A and B City and other area have been defined, which are as follows:_ 2(b) "Category A City" -means a City, included as Category A City in the schedule to this order, having population of 10 lakh and more.
(c ) " Category B City"- means a city included as category B City in the schedule to this order having population of 3 lakh and more but less than 10 lakh, or the Capital of the State or Union Territory not included in category A City
(d)"Other Areas"- means any other place which is not category A city or category B City.
However, it is submitted by Sri Kashyap that after amendment of aforesaid Central Order, the said definition have no application so far it relates to Edible Oilseeds and Edible Oil. Therefore in the absence of any definition, petitioner is not required to take any license for dealing in edible oil. The aforesaid submission of Sri Kashyap cannot be accepted. It is well recognized principle for construction of the statute that if an statute is silent on any point it is permissible to 7 look into other laws dealing with similar matters. It has been held by their Lordships of Supreme Court in Board of Trustees of the Port of Bombay Vs. Sri Yanesh Knitters reported in (1999)7 SCC 359 that where a codifying statute is silent on point then it is permissible to look at other laws. It is further held that it is permissible to read the provisions of two Acts together when the same are complimentary to each other. In State of Madras Vs. A Vaidyanath Ayer reported in AIR 1958 SC 61 their Lordship of Supreme Court while interpreting section 4 of Prevention of Corruption Act, has held that the definition of words "shall presume" has the same meaning as defined under the Evidence Act because it deals with the same branch of law of evidence e.g. Presumption.
9. It is relevant to mention that even after omission of edible oilseeds and edible oil from "the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977", the said Central Order is operative in this State to regulate the Storage, distribution, sale and purchase of pulses which is one of the essential commodities defined under the Act and for dealing with the same license is necessary under the Unification Order. Thus even after deletion of edible oilseeds and edible oil, the definition of category A, B Cities and other areas as contained in the aforesaid Central Order will be applicable so far it relates to pulses. Therefore, Central Order as well as Unification Order deals with same branch of law i.e. essential commodities. Thus, in view of aforesaid two decisions of their Lordships of Supreme Court, the definition of category A, B City and other areas in above Central Order will be applicable in the cases of edible oil seeds and edible oil. Moreover from perusal of Clause 14 of Notification No. 49 dated 17.10.1985, as amended from time to time, it appears that the same definition of B Class City has been adapted with respect to other Trade Article as enumerated in the Unification Order. Hence, I find that the categories B and C City have been defined. Therefore, the contention of Sri Kashyap that in absence of any definition of category A, B and C City, it is not necessary for the dealers (dealing in edible oil) to obtain license, is rejected.
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10. It is alleged in the FIR and charge sheet that the petitioner is dealing in edible oil and from his business premises edible oil (mustered oil) in access of storage limit had been seized. It is also alleged that on demand, petitioner did not produce any license authorizing him to deal with edible oil. Thus, prima facie, it appears that he violated clause 3 of the Unification Order, which is punishable under section 7 of the Act. Hence, I find that the learned court below rightly rejected the application of petitioner for discharge and explained the substance of accusation to him.
11. In view of discussion made above, I find no illegality and/or irregularities in the impugned order and/or proceeding pending against the petitioner. Thus the same does not require any interference by this Court.
12. In the result, as there is no merit in this application, the same is dismissed.
( Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated 18/01/2010 Sharda/NAFR