Allahabad High Court
B.K. Singh And Another vs State Of U.P. & Others on 25 January, 2010
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Court No. 41
Criminal Misc. Writ Petition No. 1072 of 2010.
B.K.Singh and another.......................................Petitioners
Versus
State of U.P. And others....................................Respondents.
Hon. Imityaz Murtaza J.
Hon. Naheed Ara Moonis, J.
Challenge in this petition is to the F.I.R. Lodged at case crime No. 14 of 2010 under section 420, 471 IPC and section 3/7 of the Essential Commodities Act, 1955 at P.S.Pahasu District Bulandshahr.
The criminal prosecution has been launched in this case against the occupier of the factory and also against the General Manager for observing in flouting the directions contained in Satti Nity (bounding Policy) 2009-2010. The factory in question against whom criminal prosecution has been launched is situated at Sabitgarh within the jurisdiction of District Bulandshahre and it is one of the units of Factories situated at different places. The author of the F.I.R is one A.P.Singh, Senior Sugar Development Inspector posted at Bulandshahre. He lodged the F.I.R under challenge in this case with the allegations that during inspection of the Factory, he detected irregularities in the mode of payment to the cane growers. The allegation further is that during the period under inspection, the said factory has made payment of the sugar cane price not through the Bank but directly to the cane growers as a result of which resentment has been brewing amongst the cane growers and the factory has in fact played fraud by adopting two different modes of payment of the price of sugar cane. The allegations further are that during the period 30.12.2009 to 1.1.2010 i.e. within a short span of three days, the sugar cane purchased was to the extent of 1,02725.92 quintals and at the rate of Rs. 240 to Rs. 245/- the total cost of sugar cane purchased aggregates to Rs. 22,43,0017.93 out of which only a sum of Rs. 20,84,868.00 has been made through Bank while the amount to the extent of Rs. 20,319809 has been paid in cash directly to cane growers which according to further allegations constitutes infringement of the Rule 11 (2) of the Satta Niti and this, it is further alleged, brings into play Rule 2 3 and 4 of the U.P. Vacuum Pan Sugar Factories Licensing Order 1969, the infringement of which attracts the ingredients of section 3/7 of the Essential Commodities Act 1955. In view of the above, it is prayed that the F.I.R be registered against Sri Kuldeep Singh Occupier and Sri B.K.Singh, General Manager.
We have heard learned counsel for the petitioners and also learned Advocate General who was assisted by learned Government Advocate and learned A.G.A. We have also heard Sri Ravindra Singh learned counsel appearing for the Cane Development Societies Ltd.
The main plank of the submissions canvassed before is that the allegations only disclose irregularities for which no criminal prosecution can be launched attended with submission that the provisions of Essential Commodities Act cannot be imported for launching criminal prosecution against the petitioners. It is further submitted that if at all, there is any infringement, the petitioners can be proceeded against under the provisions of U.P:.Sugar Cane (Regulation of Supply and Purchase) Act, 1953. The learned counsel copiously cited the provisions of the aforesaid Act and the relevant provisions cited across the bar are Sections 17, 22 and 23 of the said Act.
Dwelling on the U.P. Sugar Cane (Regulation of Supply and Purchase) Act 1953, the learned counsel canvassed that the said Act regulates the supply and purchase of sugar cane required for use in sugar (Factories and Gur, Rab or Khandsari Sugar Manufacturing Units). Learned counsel also drew attention to section 17 of the Said Act urging that it provides for the payment of cane price. Section 22 of the Act was also cited which provided for penalties Section 22 of the Act being germane to the controversy involved is reproduced below.
"If any person contravenes any of the provisions of this Act or any rule or of order made thereunder, he shall be liable to imprisonment upto six months or to a fine not exceeding Rs. 5000/- or both and in the case of continuous contravention to a further fine not exceeding Rs. 1000/- for each day during which the contravention continues."3
Section 23 of the Act relates to institution of proceedings. It being relevant is excerpted below.
"(1) No prosecution shall be instituted under this Act except upon complaint made by or under authority frfom the Cane Commissioner or the District Magistrate.
(2) On the application of a person accused of an offence under this Act, the Cane Commissioner or the District Magistrate with the previous concurrence of the Cane Commissioner may at any stage compound such offence by levying a composition fee not exceeding the fine which could be imposed for such offence.
(3) No court inferior to that of a Magistrate of the second class shall try any offence against this Act or any order or rule made thereunder."
The learned counsel ultimately canvassed that it clearly transpires that the allegations as encapsulated in the F.I.R can at the maximum attract the provisions of the U.P. Sugar Cane (Regulation of Supply and Purchase) Act the penalties for violation of which are also mentioned therein and by this reckoning, F.I.R has been erroneously lodged against the petitioners.
Per contra, learned counsel for the State and Cane Development Societies Ltd joined chorus submitting that the allegations in the report attract the provisions of Section 3/7 of the Essential Commodities Act regard being had to the U.P. Vacuum Pan Sugar Factories Licensing Order, 1969 followed by submission that the offences are cognizable. Dwelling on U.P Vacuum Pan Sugar Factories Licensing Order, 1969, it is argued that the said Order provides for license for the sugar Factories. Citing Clause 4 of Schedule I, it is stated that the said clause provides that the licensee shall abide by all the laws and rules for the time being in force in the State for regulating the manufacture of sugar by Vacuum Pan process and the Supply and purchase of sugar cane and such directions as may be issued from time to time by the Sate Government and the Cane Commissioner, U.P. The learned counsel also submitted that the Cane Commissioner, U.P. Also issues Satta Niti (bounding policy). Citing Rule 57 of the U.P.Sugar Cane (Regulation of Supply and Purchase) Rules, 1954, the learned counsel submitted that the said Rule provides that all arrangements in connection with the sowing, sale and supply of cane by 4 cane growers Cooperative Societies shall be in accordance with such general or special instructions as may be issued by the Cane Commissioner from time to time. In view of the above, it is argued that direction of Cane Commissioner has also been violated and therefore in view of section 8 of the U.P. Vacuum Pan Sugar Factories Licensing Order, 1969, the offence under section 3/7 of the Essential Commodities Act is clearly made out. The learned counsel also drew attention to section 8 of the U.P. Vacuum Pan Sugar Factories Licensing Order, 1969, which postulates that if a person contravenes any of the provisions of this Order, or conditions of the license he shall be punishable in accordance with the provisions of the Essential Commodities Act, 1959. Quintessentially, it is submitted that no interference is called for in the matter.
Sri Gopal S. Chaturvedi, learned Senior Counsel appearing for the petitioners in answer to the above submissions, vehemently argued that the U.P. Vacuum Pan Sugar Factories Licensing Order, 1969, was issued to regulate production of sugar by the U.P. Sugar Factories and the State Government was not authorized to issue any order for controlling the sale and purchase of Sugar cane. He further submitted that clause 4 of Schedule I of the U.P. Vacuum Pan Sugar Factories Licensing Order, 1969, which provides for license, cannot be stretched to apply to the purchase of sugar cane and therefore, the direction issued by the Cane Commissioner is ultra vires. The further precise argument is that Rule 57 of the U.P. Sugar Cane (Regulation of Supply and Purchase) Rules, 1954, relates to all arrangements in connection with the sowing, sale land supply of cane by can growers Cooperative Societies which shall be in accordance with such general or special instructions as may be issued by the Cane Commissioner from time to time and by this reckoning, it is argued, the said rule is not attracted for application to the Sugar Factories. The learned counsel also argued that the U.P. Sugar Cane (Regulation of Supply and Purchase) act, 1953, defines cane growers Cooperative Societies that means a society registered under the Cooperative Societies Act, 1912, one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under section 8 of the said Act. Therefore, it is quintessentially argued that any Satta Niti issued by the Cane Commissioner under section 57 of the Rules of 1954 cannot be stretched to apply to Sugar Factories and the petitioners cannot be held liable for any violation of the said Act.
5The moot point that crops up for consideration in this petition is that the directions contained in Satta Niti 2009-2010 the violation of which has been alleged in the F.I.R and the entire prosecution hinges on violation of the directions contained in the said Satta Niti, cannot be stretched so long as to have any overriding effect or overreach the provisions as contained in U.P. Sugar Cane (Regulation of Supply and Purchase) Act, 1953 which have been discussed elaborately in the preceding paragraphs.
The learned counsel appearing for the petitioners also apprised the Court that in identical petitions involving self same issues, interim order staying arrest of the petitioners of that case have been passed.
Having considered the matter in all its ramifications which appear to be loaded with some substance at this stage, and regard being had to the fact that in identical petitions involving self same issues are are involved in the present petition, protective orders have been passed staying arrest of the petitioners in those cases attended with the fact that all the petitions have been clubbed together and listed for for final hearing in March 2010, it would be but appropriate that this petition be also connected and listed for final hearing alongwith other similar petitions.
Learned A.G.A prays for and is granted four weeks' time to file counter affidavit. Learned counsel for the Cane Development Societies Ltd may also file counter affidavit within the same period. Rejoinder affidavit if any, may be filed within two weeks next thereafter. The matter shall be listed on 8th March, 2010 for final hearing alongwith other connected petitions.
However, till then, the arrest of the petitioners namely, B.K.Singh and Kuldeep Singh who are wanted in case crime No. 14 of 2010 under sections 420, 471, IPC read with section 3/7 of the Essential Commodities Act, 1955 P.S. Pahasu District Bulandshahr shall remain stayed. MH 25.1.2010.
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