Patna High Court
Anant Ram Agrawal And Ors. vs State Of Bihar on 20 February, 1988
Equivalent citations: 1988(36)BLJR386
JUDGMENT Bimalendu Narayan Sinha, J.
1. These two revision applications arise out of a common judgment and order dated 29th of May, 1985 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Criminal Appeal No. 91 of 1985 (88 of 1985) confirming the conviction and sentence of these petitioners under Section 7 of the Essential Commodity Act (hereinafter to be referred to as 'the Act') passed by the Sub-Divisional Magistrate, Bhabhua in G. R. Case No. 567 of 1973, Tr. No. 1079 of 1984 by which these two petitioners have been sentenced to undergo rigorous imprisonment for three years each. As these two applications arise out of a common judgment, they have been heard together and are being disposed of by a common judgment,
2. The petitioner Anant Ram Agrawal admittedly was a whole-sale dealer in foodgrain on the alleged date of occurrence under licence No. 66 of 1971 issued under Bihar Foodgrains Dealers Licensing Order, 1967 (hereinafter to be referred to as the Licensing Order, 1967'). The Government of Bihar issued Bihar Wheat Monopoly Purchase-cum-Levy Procurement Order, 1973 (hereinafter to be referred to as 'the Order, 1973) and by Clause 4 (a) of that Order, the Government itself assumed the trade of wholesale dealer in wheat and to that extent the provisions of the licensing Order, 1967 was modified and no person other than the Government and the Government Agents was to act as a wholesale dealer in respect of wheat. On the 7th and 8th of August, 1983 Sri (sic). Kuzur, A. D. S. O., Bhabhua alongwith Sri G. P. Sharma (PW 1), Deputy Magistrate, Bhabhua and the Officer-in-charge, Bhabhua Police Station inspected the business premises of the accused petitioners and he recovered 145 bags of wheat weighing about 190 quintals and 50 kg. in presence of Ramlal Singh (P. W. 3) and one Rajeshwar Prasad Dwivedi (not examined) and prepared a seizure-list (Ext. 4) as it was found that he has violated the provisions of Licensing Order, 1967, These seized bags were left in the custody of this accused petitioner on obtaining a proper receipt from him and Sri T. Kuzur submitted prosecution report (Ext. 2) against this petitioner to the Sub-divisional Officer, Bhabhua who referred the same to the Police for institution of a case against this petitioner.
3. A formal first information report (Ext. 3) was drawn on the basis of the prosecution report (Ext. 2) at Bhabhua Police Station and the investigation proceeded.
4. During the course of investigation, the accused petitioner Nagarmal Agrawal filed application before the Sub-divisional Magistrate, Bhabhua for the release of those bags of wheat on the ground that he had purchased those bags from Byapar Mandal Sahyog Samiti, Chenari situated in the district of Rohtas in auction sale and kept the same in the premises of the accused petitioner for the purpose of cleaning the impurity thereof so as to use it as cattle feed.
5. The Police, after completing investigation, submitted charge-sheet against both the accused petitioners on the basis of which cognizance of the case was taken against these accused petitioners and thereafter the trial proceeded.
6. At the trial charge under Section 7 of the Act was framed against the accused-petitioner Anant Ram Agrawal and under Section 8 of the Act against accused-petitioner Nagarmal Agrawal.
7. The accused pleaded not guilty to the charge and claimed to be tried. The accused did not deny the recovery of those bags of wheat from the business premises of the accused-petitioner Anant Ram Agrawal. Their defence was that those bags belong to the accused-petitioner Nagaraal & Nagarmal Agrawal and they contained rotten wheat not fit for human consumption which had been purchased by the accused petitioner Nagarmal Agrawal in auction sale at Chenari for cattle feed.
8. The prosecution examined altogether 4 witnesses to prove its case. P. W. 1 G P. Sharma had accompanied the raiding party at the time of inspection of the business premises of accused-petitioner Anant Ram Agrawal and in his presence those bags of wheat had been recovered and seized and a seizure list was prepared in respect thereof, P. W. 3 Ramlal Singh is a witness of search and seizure, P. W. 2 Krishna Narayan Sharma, is a formal witness and P. W. 4 S. I. Paramhans Singh had simply submitted charge-sheet in the case.
9. The two courts below, after taking into consideration the oral as well as documentary evidence produced on behalf of the prosecution and the facts and circumstances of the case found that the charges framed against the petitioners were established beyond reasonable doubt.
10. The learned Counsel for the petitioners has assailed the judgment of the courts below firstly on the ground that the Order, 1973 was rescinded by the State Government by notification S. O. 487 dated 18th of April, 1974 and the cognizance of the case against these accused petitioners was taken on 10424975 i. e. much after the Order, 1973 had ceased to be in force because in notification made on 18th of April, 1975 rescinding the Order, 1973 there was no saving Clause.
11. The learned State Counsel on the other hand has submitted that even after notification dated 18th of April, 1974, the action taken under the Order, 1973 survived under Section 8 of the Bihar and Orissa General Clauses Act, 1917 (hereinafter to be referred to as 'the Act 1917') and be has placed reliance on Clauses (c) and (e) of that section.
Section 8 of the Act 1917 reads as follows :
Effect of repeal.-Where any Bihar and Orissa Act' (or Bihar Act) repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall not, -
(a) revive anything not in force or existing at the time at which the repeal takes effect ; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
12. Section 8 of the Act 1917 is applicable in case of enactment. Section 4 (18) of the Act 1917 defines enactment as follows :
Section 4 (18) :
'enactment' shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.
13. The Order, 1973 with no stretch of imagination can be said to be either an Act or Regulation which has been defined under Section 4(45) of the Act, 1917 which reads as follows :
Section 4 (45) :
'Regulation' shall mean a Regulation made by the Governor under sub-paragraph (2) of paragraph 5 of the Fifth Schedule to the Constitution and shall include a Regulation made by the Central Government under the Government of India Act, 1870 or the Government of India Act, 1915 or the Government of India Act, 1935 or by the President under Article 243 of the Constitution.
14. The Order, 1973 was issued by the Governor of Bihar in exercise of the powers conferred on him by Section 3 of the Act read with orders of the Government of India, Ministry of Agriculture (Deptt. of Food) No. G. S. R. 316 (E), dated 20th of June, 1972, G. C. E. 152 (E), dated 25th of October, 1972 and G C. R. 168 (E), dated 13th of March, 1973 and with prior concurrence of the Central Government. The Order was not issued by the Governor in exercise of his legislative powers but was an executive act and hence it cannot have the status of an Act or Regulation. Hence the provisions of Order, 1973 cannot be said to continue even after it was rescinded.
15. I am fortified in my view by an unreported Division Bench decision of this Court in Mohanlal Chhapolia v. The State of Bihar Cr. Miscellaneous No. 1170 of 1968, in which similar view has been taken with regard to the Bihar Rice Procurement (Levy) Order which was rescinded by a subsequent notification.
16. Hence, cognizance of the case after the Order, 1973 had been rescinded was illegal. Principle applicable in this case will be the same as observed in case of Statute which has been repealed or which comes to an automatic end by efflux of time. It has been held by the Supreme Court in the State of Uttar Pradesh v. Seth Jagmander Das and Ors. A.I.R. 1954 S.C. 683, that when a Statute is repealed or comes to an automatic end by efflux of time, no prosecution for acts done during the continuance of the repealed or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act.
17. Secondly, it was submitted by the learned Counsel for the accused-petitioners that the prosecution against these accused-petitioners can be initiated when the wheat said to have been found in the business premises of the accused-petitioner Anant Ram Agrawal was of the variety as denned in Clause 2 (3) of the Order, 1973. The learned Counsel for the accused-petitioners has placed reliance on the definition Clause 2 (3) of the Order, 1973 according to which wheat means wheat of different varieties as described in Schedule I.
18. Schedule I of the Order, 1973 reads as follows : Schedule I:
Specification for Indigenous red, Dara other Mexican varieties and superior (Indigenous farm variety) of wheat.
Wheat shall-
(a) be the dried mature grains of indigenous rod, data, other mexican and superior (indigenous farm variety) viz., Triticum compactura and Triticum Durums ;
(b) have natural size, shape and colour ;
(c) be sweet, clean, wholesome and free from moulds, weavils (living) obnoxious smell, discolouration, admixture of deleterious substances and all other impurities except to the extent indicated in table below ;
(d) be in merchantable condition ; and
(e) not have any admixture of pesticide, and any obnoxious deleterious and toxic material.
19. In the present case the seizure-list (Ext. 4) indicates that wheat which was recovered from the Arhat of the accused-petitioner Anant Ram Agrawal was deteriorated wheat. Both, P. Ws 1 and 3 have admitted in their cross-examination that wheat in question was damaged and rotten, P. W. 3 further admits that it was not fit for human consumption.
20. This point was taken on behalf of accused-petitioners before the appellate court but the appellate court did not accept this argument saying that P. W. 3 was not an expert on the point and his evidence that it was not fit for human consumption was purely his personal opinion which may differ from person to person. But the learned appellate court lost sight of the fact that no expertise knowledge was required for saying if that wheat was rotten and damaged or not. Moreover, there is no evidence on the record that the wheat in question was of the variety as defined under Order, 1973. On the basis of the seizure-list and evidence of P. Ws. 1 and 3 the only conclusion that can be drawn is that the wheat seized was not of the variety as required under the provisions of the Order, 1973, Hence there is substance in the submission made on behalf of the accused-petitioners that the accused-petitioners aid not commit any offence as the wheat in the stock of the accused-petitioner Anant Ram Agrawal was not of the variety as defined under Order, 1973.
21. According to the defence taken on behalf of accused-petitioner Anant Ram Agrawal, the bags of wheat belonged to the other accused-petitioner, namely, Nagarmal Agrawal who had kept those bags of wheat in his business premises for being cleaned. This fact was stated as it appears from the seizure-list {Ext. 4) at the very initial stage when his business premises was being searched and those bags of wheat were seized. Hence, I see no reason to disbelieve this plea. In this view of the matter, the defence taken by Anant Ram Agrawal ought not to have been rejected by the two courts below.
22. Lastly, it was submitted by the learned Counsel for the accused petitioners that simply on the ground that those bags of wheat were found in the business premises of the accused-petitioner Anant Ram Agrawal or that those bags of wheat belonged to accused-petitioner Nagarmal Agrawal, it cannot be said that either of them were carrying business either as a wholesale dealer or a retail dealer in absence of evidence that they were carrying on business of purchase, sale or storage.
23. The learned Counsel for the accused-petitioners in support of his argument has placed reliance on the principles decided in Manipur Administration v. M. Nila Chandra Singh(3), in which a similar point was for decision before the Supreme Court and it has been laid down that it is not single, casual or solitary transaction of sale, purchase or storage that would make a person a dealer and that the storage that would make a person a dealer and that the concept of business in the context must necessarily postulate continuity of transaction.
24. I find substance in the submission made by the learned Counsel for the accused-petitioners. There is no evidence in the instant case that except for that single instance either of the accused-petitioners were found carrying on business of storage of wheat.
25. It is apparent from the discussions made above that the conviction and sentence passed against the accused-petitioners cannot be sustained.
26. I accordingly allow the 2 revision applications and set aside the judgment and order of the courts below. These two accused petitioners stand acquitted of the charges framed against them and they are discharged of the liability of their bail bonds.