Patna High Court
Brijbehari Lal vs A. Mukherjee And Ors. on 4 February, 1966
Equivalent citations: 1966CRILJ1100
JUDGMENT Anant Singh, J.
1. This application in revision is for the quashing of an order, dated the 23rd of August, 1965, passed by Sri A. Mukherji as Sub-Divisional Magistrate, Bhabua, in case No. 54(o) of 1965. The impugned order is to the following effect:
Perused the report of Shri S.S. Prasad, Deputy Magistrate First Class, Bhabua, against Bansidhar and 8 othsrs.
This is a case under Sections 7 and 9 of the E.C. Act, 1955 and Rule 125 of D.I. Rules, 1982. From the report it appears that there have been serious irregularities in the maintenance of accounts of the firm. It further appears that the accused persons have been absconding from the date the Magistrate started verification of the stock and they are still absconding. It is very necessary to secure the appearance of the accused persons before further action is taken as relevant account books and other registers and cash memos maintained in the course of daily transaction of business have not been produced as yet.
Issue W/A non bailable against all the accused persons. W/A may be endorsed to Shri M.S. Baghail, Inspector of Police, for early execution. Put up on 2.9.65.
The report of Shri S.S. Prasad, referred to in the impugned order, is Annexure 'J'.
2. The petitioner, Shri Brijbehari Lal, is the proprietor of a firm styled as "Banshidhar Murlidhar," also known as "Murlidhar Bansidhar." In order to appreciate the implications of the case, it is necessary to give a brief resume of the background resulting in the initiation of the impugned proceeding.
3. The petitioner, as a dealer in foodgrains' held a licence, which was valid up to the 31st December, 1964. On the 3rd August, 1964, the learned Sub-Divisional Magistrate cancelled the petitioner's licence, without having previously served any notice on him, and started a case under Sections 7 and 9 of the Essential Commodities Act. The petitioner filed two writ applications in this Court. One was against the cancellation of his licence and the other was for the quashing of the aforesaid proceeding.
4. The case relating to the cancellation of the petitioner's licence was disposed of by this Court by the Chief Justice sitting with Untwalia, J., on the 3rd October, 1964, in Miscellaneous Judicial Case No. 1063 of 1964. The order of the learned Sub-Divisional Magistrate was set aside because it was illegal in that no notice, as required under the law, had been served on the petitioner before his licence was cancelled, and, accordingly, the matter was remanded to the Sub-Divisional Magistrate for a fresh consideration.
5. The case under Sections 7 and 9 of the Essential Commodities Act, hereinafter referred to as "the Act," started against the petitioner was disposed of by Ramratna singh and S.P. Singh, JJ., on the 5th November, 1984, in Criminal Miscellaneous No. 484 of 1964, quashing the proceeding, one of the grounds being that the facts constituting the offence, as required under Section 11 of the Act, were not disclosed.
6. As I have indicated above, the foodgrain dealer's licence in favour of the petitioner was valid up to the 31st December, 1964, and before the expiry of the date of the licence, the petitioner filed an application for its renewal for 1965. But on the 12th February, 1965, the learned Sub-Divisional Magistrate again cancelled the petitioner's licence, although it had expired automatically on the 31st December, 1984, and the learned Sub-Divisional Magistrate did not consider the petitioner's application for the renewal of his licence.
7. The petitioner filed an appeal to the Commissioner, who, by his order dated the 28th March, 1985, set aside the order of the learned Sub-Divisional Magistrate, dated the 12th February, 1965, and remanded the case for consideration of the renewal application filed by the petitioner.
It appears that on the 16th July, 1965, the licence in favour of the petitioner was renewed by the Sub-divisional Magistrate up to the 31st December, 1985, under his own signature and road permits for movements of grains were also issued by the office of the Sub-Divisional Magistrate on the 19th July, 1965, and 21st July, 1985 (Vide Annexure "E"). But, as it would appear from Annexure "F", the Sub divisional Magistrate served on the petitioner on the 4th August, 1965, a notice dated the 3rd August, 1965, saying that the licence for 1965 in favour of the petitioner had not in fact been renewed, and. therefore, the petitioner's firm was not to deal in foodgrains. The aforesaid notice further stated that it had been learnt that the certified copy of the order of renewal of the petitioner's licence for 1965 had been issued by "Bebhagi", meaning probably by some error or unauthorised, and that the petitioner should surrender that certified copy of the licence by the 4th August, 1985.
8. The petitioner, however, did not surrender the certified copy relating to the renewal of his licence, valid up to the 31st December, 1965, and it has been all the time in his possession. The certified copy, which was issued to the petitioner, is being retained by him and its plain copy has been filed as Annexure "D" with affidavit. The certified copy, during the course of the argument, has been shown to me and has since been returned to counsel for the petitioner.
As it would appear from Annexure "J", dated the 21st August, 1965, which is the report of Shri S.S. Prasad and on the basis of which the impugned proceeding was started, Shri S.S. Prasad, in pursuance of the order of the Sub-divisional Magistrate, dated the 5th August, 1965, had at 3 p.m., on the same date, raided along with others, the godown of the petitioner, situate at Karamnasa. That day he had sealed the godown and posted armed guards around the gola of the petitioner. It would appear from the same report of Shri S.S. Prasad that the petitioner's firm had been asked to stop transacting business on the 3rd August, 1965, since his licence for the year 1965 was not renewed. The aforesaid report would further show that notice had been served on the petitioner in the morning of the 4th August, 1965, and "stock books were also seized on the same date", though, as I have indicated above, the godown was sealed by Shri S.S. Prasad at 3 p.m. on the 5th August, 1965.
9. It was at about 10 a. in. on the 6th August, 1965, that Shri S.S. Prasad verified the actual stock of grains lying in the godown of the petitioner along with the entries as made in his stock registers up till the 4th August, 1985, when the stock books had been Seized. The result of the stock verification with the entries as shown in the stock books up to the 4th August, 1965, showed some excess or shortage in respect of certain grains, as detailed in the report of Shri S.S. Prasad.
10. The excess was over 98 Kilograms in respect of gram, over 100 quintals in respect of khesari, over 32 Kilograms in respect of gram dal, over 19 Kilograms in respect of rahar and over 34 Kilograms in respect of barley. The shortage was in respect of some other commodities, the highest shortage being over 26 Quintals in respect of barre, which was not a controlled commodity.
11. Before I return to the consideration of the proceeding, it may also be stated that the Commissioner by his order dated the 6th August, 1965, had stayed the operation of the order of the learned Sub-divisional Officer, dated the 3rd August, 1985, by which the licence of the petitioner for 1965 had been cancelled and his business stopped, and, finally, the Commissioner by his order dated the 27th November, 1985, set aside that order completely. Thus, the petitioner was found to have held a valid licence also for 1065.
12. It may at this stage be also stated that earlier on the 7th August, 1965, the petitioner filed an application before the Chief Secretary to the Government under Section 197 of the Code of Criminal Procedure for sanction for prosecution of the learned Sub-Divisional Magistrate and others concerned on the allegation that in the original of the order renewing the licensee of the petitioner for 1965, the order for renewal for that year had since been penned through in the office of the learned Sub-divisional Magistrate their by himself or by some one else, and that matter is sill pending with the Government. In the order of the Commissioner dated the 27th November, 1985, he had also noticed that this words "renewed for 1965" in the original were found penned through.
13. The present proceeding against which this application has been filed, as I have already stated, was smarted on the 23rd August, 1965, on the report, dated, the 21st August, 1965, of Shri S.S. Prasad, Mr. Akbar Imam, appearing for the petitioner, would contend that, in the first instance, the impugned order does not show that the learned Sub-divisional Magistrate took cognizance of the case within the meaning of Section 190 of the Code of Criminal Procedure, He would next contend that the facts reported do not constitute any offence, and, therefore, with is the meaning of Section 11 of the Act, no court could; take cognizance of any so-called offence.
14. The impugned order is indeed very vague and it does not indicate in terms that the learned Sub-divisional Magistrate took cognizance of the offense complained of, though impliedly it may be so assailed, in that, the learned Sub-divisional Magistrate in the same order had issued non-boilable warrants of arrest against the petitioner and eight others. The Supreme Court in Ajit Kumar Palit v. State o£ West Bengal AIR 1953 SC 785, although that case related to the taking of cognizance by a special Judge appointed under the Prevention of Corruption Act, has observed that under the Code of Criminal Procedure, there was no special form of taking cognizance and that "cognizance was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense." I could assume, therefore, that by the impugned order the learned Sub-divisional Magistrate took cognizance of the offence complained of against the petitioner and eight others. But this is not so plain. If the learned Magistrate purported to take cognizance of the offence, I cannot follow why he still had the case, by his subsequent order of the 21st September, 1965, referred to Sri D.K. Khan, Deputy Superintendent of Police, Anti-Smuggling, Bhabua, for "further investigation in this case and required the case to be put up on the 12th October, 1965. Further, I cannot visualize any reason why the learned Sub-divisional Magistrate started two separate order sheets, both in original, for this case in the beginning. One ordersheet is...containing serial Nos. 1, 4, 5, 6, 7, 8 and 9, all written or typed between 23.8.65 and 12.10.65. The other ordersheet contains serial Nos. 1, 2, 3 and 4, though the former ordersheet does not contain serial Nos. 2 and 3, as I have indicated.
15. Now I come to the question whether on the facts, as reported by Shri S.S. Prasad and on the basis of which cognizance may be assumed to have been taken, any offence was constituted within the meaning of Sections 7 and 9 of the Act. They are penal sections for contravention of any order made under Section 3 of the Act. The allegation against the petitioner, as disclosed in the report of Shri S.S. Prasad, substantially is that his stock registers did not disclose correct state of affairs about the grains stored in his gola. Form B, prescribed under the Bihar Foodgrains Dealers' Licensing Order, 1983, relates to licence for purchase, sale/storage for sale of foodgrains, and Sub-clause 3(ii) of that Form is to the following effect:
The licensee shall complete his accounts for each day on the day to which they relate, unless prevented by reasonable cause the burden of proving which, shall he upon him.
It is this condition which is alleged to have been violated by the petitioner, inasmuch as his stock of grains as found on the 6th of August, 1965, did not tally with the entries in the petitioner's register written up to the 4th August, 1965, which Shri S.S. Prasad treated 'as final.
16. Mr. Akbar Imam would contend that the stock register of the petitioner that he was keeping under the terms of his licence, as prescribed in Form B, had been, as stated by Shri S.S. Prasad in his report, seized on the 4th August, 1965, and the stock verifications came on the 6th August, 1965, after his gola had been sealed at about 3 p.m. on the 5th August, 1965. The petitioner could nave transacted business from 4th August, 1985, till 3 p.m. on the 5th August, 1965, but he could not, in the absence of the stock register, show those transactions in the stock register.
17. Learned Government Advocate, Shri Bajrang Sahay, appearing for the State, would on the other hand, contend that no such plea appears to have been taken by the petitioner at any stage, not even before this Court in any of his earlier petitions, for the petitioner in the past had also come up to this Court against certain orders of the learned Sub-divisional Magistrate. But the petitioner does not appear to have been ever asked any reason for his prevention to have completed his accounts for each day. The aforesaid term of the licence requires completion of the accounts by a licencee "unless prevented by reasonable cause." This opportunity has indeed to be given to a licencee by the inspecting officer himself and not that, as the learned Government Advocate would argue, such a plea would be open to a licencee Only in Court. The term is very clear and it occurs in the form of the licence itself. It is, therefore, for inspecting authority to get satisfied on taking explanation from the licencee as to the cause for the non-completion of the daily accounts, and any report, in absence of such an opportunity being given to the licencee, can well be treated as a denial of natural justice. Mr. Bajrang Sahay would further contend that the asking of an explanation from a licencee by the inspecting or reporting officer would not be a condition precedent for a Magistrate taking cognizance but I would not, with respect, agree to this contention. The report of the inspecting officer for launching a prosecution against a licencee must be a proper report. As I have already pointed out, the inspecting officer did not give an opportunity to the] licencee to explain for the non-completion of the accounts and the denial of such an opportunity would render the report invalid, and, in my opinion, no Court should take cognizance on such an incomplete report.
18. As it would appear from the report of Shri S.S. Prasad himself, the stock register of the petitioner had been seized on the 4th August, 1965, although his foodgrains were not, and that they were so seized and sealed at about 3 p.m. on the 5th August, 1965. Thus, from 4th August, 1965, till 3 p.m. on the 5th August, 1965, the petitioner could be expected to have transactions, but, in the absence of his stock register, he could not obviously show those transactions in his account books. Such being the position, the taking of cognizance of the offence by the learned Sub-divisional Magistrate, if it is treated as validly taking the cognizance, was without any proper report and, therefore, the whole proceeding is vitiated.
19. It would, however, be open to the State to launch a fresh prosecution on the offence complained of or of any other connected offence after giving due opportunity to the petitioner to explain for the non-completion of the accounts during the relevant period, relating to the stock as found by Shri S.S. Prasad on the 6th August, 1965, with reference to the stock register as completed till the 4th August, 1985. But such an enquiry, I am constrained to observe, should not be entrusted to the learned Sub-divisional Magistrate or to any other Magistrate at Bhabua, for reasons which I am summarizing below.
20. It would appear from the facts already stated that the learned Sub-divisional Magistrate, Shri A. Mukherji, acted on more than one occasion in a most irregular and illegal manner. He illegally cancelled the licence of the petitioner for 1964 without any notice and launched a prosecution under Sections 7 and 9 of the Act without any material. After his orders in those connections were set aside, he again cancelled the petitioner's licence for 1965, without haying at first taken into consideration his application for renewal for that year. That order was also set aside. Again, after the petitioner's licence was renewed for the year 1965 and a certified copy was issued to the petitioner, the learned Sub-divisional Magistrate made frantic attempts to get back from the petitioner his certified copy and it passes one's comprehension how on earth in the original the order for renewal of the licence for 1965 came to be penned through. This proceeding came up after the petitioner moved the State Government for the prosecution of the learned Sub-divisional Magistrate. It is also noteworthy that the learned Sub-divisional Magistrate instead of having summoned the petitioner and other accused, in the first instance, straightway issued warrants of arrest against nine persons and that also non-boilable on the simple plea that they were absconding, forgetting that Shri S.S. Prasad raided the petitioner's gola having taken armed constables and, therefore they were likely to be scared away. It should also be noticed that the petitioner as the licencee could alone be liable for contravention of the terms of his licence but warrants of arrest were issued against eight more persons without disclosing any reasons why they were being pursued. It seems that there was no rule of law prevailing for the learned Sub-divisional Magistrate. These facts are self-eloquent how the learned Sub-divisional Magistrate acted in complete disregard of all the rules and laws and I shall not be surprised that he had been working in a spirit of complete bias and spite against the petitioner and his men. I cannot leave this case without expressing a hope that the State Government will have the whole matter thoroughly enquired into.
21. The learned Government Advocate, Shri Bajrang Sahay, has expressed that he would report the matter to the State Government and he would like to have a copy of this order. He may be given a copy of this order.
22. In conclusion, this application is allowed and the proceeding is quashed. Any further enquiry into the matter, as I have indicated, should not be entrusted to any Magistrate at Bhabua, and, if any further action is considered necessary in the matter, it will be desirable that the District Magistrate himself, if possible, should do it in person or depute some Magistrate for it from any other place than Bhabua.
23. The entire grains of the petitioner had been seized and they have since been sold by auction under the orders of the learned Sub-divisional Magistrate. The sale proceeds being Rs. 67,325 are in deposit with the Bhabua Treasury. The amount is hereby ordered to be paid to the petitioner without any delay on taking such security as the District Magistrate himself may deem proper. The learned District Magistrate should make sure that the matter of taking security, if he so decide, is not unnecessarily delayed
24. Learned Counsel for the petitioner further informs me that various account books and other materials of the petitioner have also been seized and they should be ordered to be released. The petitioner may move the District Magistrate about this matter.