Patna High Court
Radhey Shyam Kalwalia vs The State on 15 February, 1968
Equivalent citations: 1968(16)BLJR890
JUDGMENT G.N. Prasad, J.
1. This application is directed against the order of the Sub-divisional Magistrate, Dumka dated the 23rd January, 1967 whereby cognizance has been taken in respect of an; offence under Section 7 of the Essential Commodities Act, 1955 alleged to have been committed by the Petitioner who is the owner of a rice mill known as Sri Shib Parbati Rice Mills in Jarmundi in the District of Santhal Parganas, The prosecution has been instituted against the petitioner on the basis of a report dated the 31st October, 1966, submitted by the Supply Inspector of the District Supply Office at Dumka wherein it has been alleged.
Today the Additional Deputy Commissioner, S.P. Dumka,. himself paid a surprise visit to the Mill at about 2 P.M. I accompanied A. D.C.S.P., Dumka for his assistance. Huge quantity of paddy and rice bagged and unbagged was found in the mill premises, but no stock book was produced for inspection. In fact no license and no papers were produced for inspection although the Mill was working and the staff were present.
It has been stated in the Supply Inspector's report that a failure on the part of a licensee to produce his licence, stock book and other papers before an inspecting officer is a contravention of the Foodgrains Dealers' Licensing Order and the terms and conditions of the licence.
2. It is necessary for the purpose of the present case to read some of the provisions of the Bihar Foodgrains Dealers' Licensing Order, 1967 and some of the conditions of the licence issued under the Order in Form B' to a wholesale dealer of foodgrains.
3. Section 7 of the Licensing Order enjoins that no holder of a licence issued under this order or his agent or servant or any other person acting on his behalf shall contravene any of the terms and conditions of the licence.
4. Conditions 5, 8 and 9 of the licence in Form 'B' are to the following effect:
5 The licensee shall not contravene the provisions of the Bihar Foodgrains Dealers Licensing Order, 1967, or any other Order relating to foodstuffs issued under the Essential; Commodities Act, 1953 (10 of 1955) or under the Defence of India Rules, 1962.
8. The licensee shall, except when specially exempted by the State, Government or by the licensing authority in this behalf, issue to every customer a correct receipt or invoice, as the case may be, giving his own name, address and licence number, the name, address and licence number of the customer, the date of transaction, the quantity sold, the price per quintal and the total amount charged and shall keep a duplicate of the same to be avail able for inspection on demand, by the licensing authority or any office authorised by him in this behalf.
9. The licensee shall give all facilities at all reasonable time to the licensing authority or any officer authorised by him or the State Government for the inspection of his stocks and account at any shop, godowns or other place used by him for the storage, sale or purchase of foodgrains and for the taking of samples of foodgrains for examination.
5. The question for consideration is whether upon the prosecution report submitted by the Supply Inspector, referred to above, any case has been made to suggest that the petitioner being a licensee had contravened any of the terms and conditions of the licence or any of the provisions of the Licensing Order under which he holds a wholes sale dealers licence.
6. No where in the body of the Licensing Order or in any of the terms and conditions of the licence in Form 'B' do I find any provision making it obligatory upon a licensee to produce his licence before the inspecting officer, if called upon to do so. Under Section 10 of the Licensing Order the licensee or the owner, occupier or any other person incharge of any place or premises vehicle or vessel where any contravention of the provisions of the Order or of the conditions of any licence has been or is being committed he may be called upon to produce "any book, accounts or other documents showing transactions relating to such, contravention". But a licence cannot fall within any of such categories of book, accounts or other documents showing transaction. In the body of the licence in Form 'B' also I do not find any provisions to the effect that a licensee is bound to produce his licence before an Inspecting Officer, if called upon to do so. It is true that a person is hot entitled to carry on wholesale business in foodgrains without being in possession of a requisite licence and if he does so he will be liable to be prosecuted. But I do not find any provision in the law to the effect that if a person does not produce his licence before an inspecting officer then he is guilty of contravention of the Licensing Order or any term and condition of his licence. If a person does not produce his licence before an inspecting officer that might give rise to an inference that he does not possess any licence and, therefore, he may be prosecuted on the, ground of con ducting his business without holding the requisite licence. But merely because there is a refusal or failure to produce the licence before an inspecting authority no conclusion can necessarily, be drawn that the dealer has no licence in his possession at all, In the instant case at any rate it is clear from the supervision note of the Deputy Super intendent of Police that the petitioner did hold a licence, namely, Licence No. 13 of 1966, Therefore, this is not a case where the prosecution has been instituted upon the footing that the petitioner was carrying on business in foodgrains without being in possession of the requisite licence. The basis of the prosecution is the failure of the petitioner to produce amongst other things his licence before the inspecting officer. I have no doubt in my mind that for mere failure to produce his licence the petitioner cannot be prosecuted for contravention of the Licensing Order or any of the terms and conditions of the licence in Form 'B'
7. This, however, does not hold good with respect to the alleged non-production of the stock books and other papers mentioned in the prosecution report of the Supply Inspector. But the question for consideration is whether such failure was on the part of the petitioner who is the licensee. It appears that before the Deputy Superintendent of Police who had been entrusted with the work o supervising the investigation of the case, the position taken by the prosecution was that at the relevant time the mill owner, namely; the petitioner had "slipped away and did not produce the licence, the stock register and other papers" which the Additional Deputy Commissioner and the Supply Inspector had demanded for inspection with a view to check up the stock of food-grains in the mill premises. But no such case was put forward in the prosecution report of the Supply Inspector. There the stand of the prosecution was that no licence or other documents or paper were produced for inspection although the mill was working and "the staff" was present. Therefore, according to the prosecution report the contravention, if any, was not on the part of the petitioner but on the part of the staff that was present at the time of the inspection. If the. staff had contravened any of the provisions of the Licensing Order or the terms and conditions of the licence in Form 'B' then that cannot by itself justify the prosecution of the licensee. It is now well settled that mens rea is an essential ingredient of an offence under Section 7 of the Essential Commodities Act for breach of the provisions of the Food-grains Dealers' Licensing Order: See Nathulal v. State of Madhya Pradesh . If the petitioner was not present at the time of the inspection, as the Deputy Superintendent of Police appears to have found in his supervision note and as the prosecution report of the Supply Inspector also indicates, then no mens rea can possibly be attributed to the petitioner in respect of the alleged contravention of the Licensing Order or the terms and conditions of the Licence which is, the basis of the petitioner's prosecution
8. For the aforesaid reasons the prosecution taken against the petitioner is quashed and the rule is made absolute.