CRIMINAL MISCELLANIOUS No.9089 OF 1999 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- Ghanshyam Kumar @ Rajeev Kumar son of Sri Harihar Prasad resident of Malyatola P.S. and Town Mokamah Dist. Patna Petitioner Versus 1. The State of Bihar 2. Sri Chandra Madhav Tiwari, Marketing Officer, Rationing Officer, Patna. Opposite parties -------- For the petitioner: M/s Mrigank Mauli, Kundan Mishra and Vinay Mistry, Advocates For the State : Mr Prabhakar Tekriwal, GA No.1 -------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ---------- Heard learned counsel for the parties. 2. This application under section 482 of the Code of Criminal Procedure ( Cr.P.C. for brevity) has been filed by the petitioner to seek quashing of order of cognizance dated 23.11.1998 passed by the learned Special Judge(E.C. Act), Patna Urban in Special Case No.8 of 1998. 3. On 27.01.1998 business premises of the petitioner were inspected by the Marketing Officer and some other officers leading to seizure of pulses, rice, wheat and gur (jaggery). As a result of inspection and seizure a case under section 7 of the Essential Commodities Act was instituted against the petitioner on the allegation that in his premises stock of pulses, rice, wheat and gur was found but on demand the employee present there did not produce - 2 - stock register, cash memo, licence and display board showing stock . As noticed earlier that case led to impugned order of cognizance under section 7 of the E.C. Act. 4. On behalf of the petitioner, it has been submitted that wheat and rice were taken out of Schedule I of the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as „the order‟) by GSR no. 148 dated 30.03.1991. In respect of gur (jaggery), it has been submitted and pointed out that it does not find place in schedule I of the order. On the basis of the aforesaid submissions which are not controverted, it has to be accepted that the case in question can not proceed in respect of wheat, rice and gur as these items were no longer covered by the order so as to attract any offence under the E.C. Act on the date of the alleged occurrence. 5. So far as remaining item pulses is concerned, it is not in dispute that Schedule I of the order is in two parts. While part A describes various food grains, pulses are separately described in part B. Similarly in Schedule IV licence fee has been prescribed for food grains and other different commodities such as sugar, vanaspati, edible oil etc but no licence fee has been prescribed for pulses which is in part B of Schedule I. 6. According to learned counsel for the petitioner, in absence of any fee prescribed for obtaining licence for pulses the provisions of the order requiring licence for storage of pulses beyond the permissible limit becomes unworkable. He has placed reliance upon a judgment of this court in the case of Satya Narain Prasad vs. - 3 - The State of Bihar reported in 1988 PLJR 502. In that case after noticing the aforesaid lacuna in Schedule IV of the order, it was held that in view of such lacuna the question of violation of clause 3 of Unification Order in case of pulse will not arise. Learned counsel for the petitioner has also placed reliance upon a Division Bench order of this court dated 19.02.1992 passed in Cr. W.J.C. No. 412 of 1991( Om Prakash Bhartia vs. State of Bihar and others) to point out that the Division Bench noticed the judgment in the case of Satya Narain Prasad vs. The State of Bihar (supra) and following the same quashed the criminal case for alleged violation of the provisions of the order in relation to pulses. 7. While considering this case on merits sitting singly one of us (Shiva Kirti Singh, J) had referred the matter to Division Bench for reconsidering the issue of non-workability of the order in respect of pulses only on account of there being no licence fee mentioned in Schedule IV of the order. On that occasion order of the Division Bench dated 19.02.1992 in case of Om Prakash Bhartia vs. State of Bihar & others ( supra) was not brought to the notice of the court. 8. Learned Government Advocate no. 1 appearing on behalf of the State has submitted that the Division Bench followed the law laid down in the case of Satya Narain Prasad vs. The State of Bihar (supra) without considering various clauses and provisions in the order and hence that short order should not be treated as binding precedent and the issue involved may be redecided considering the wordings of clause 3 and clause 18 of the order which are in - 4 - prohibitory terms and do not permit trading in or stocking of an item covered by the order i.e. items mentioned in Schedule I . According to learned Government Advocate, if a dealer or any person trades in pulses without a licence or stores beyond the permissible quantity of pulses in that event, he incurs criminal liability for acting in breach of mandatory provisions. According to learned Government Advocate the relief to be claimed by such a person must be raised before the authority or before this court prior to trading or creating stock with a view to obtain licence and it would not be a correct interpretation of order that in absence of licence fee for pulses bar upon trading and restriction on storage shall become unworkable. 9. On the other hand, learned counsel for the petitioner has submitted that so far as criminal liability is concerned, lacuna of the nature noticed in this case has been made a ground for quashing of criminal prosecution since more than two decades and therefore, this court should hold that the State of Bihar has accepted the legal position and even after the judgment noticed above it has not prescribed the licence fee for pulses so as to enable a trader or stockist to obtain licence under the order for pulses. In other words, according to learned counsel for the petitioner the principle of “Stare-decis” is attracted and the legal position which has obtained for such long period should not be disturbed because the State of Bihar has alternative option of making the order workable in respect to pulses by merely prescribing licence fee in Schedule IV of the order. 10. After considering the arguments advanced by both the - 5 - parties, this court is not persuaded to take a different view because law settled by this court in the case of Satya Narain Prasad vs. The State of Bihar (supra) has held the field for more than two decades and as noticed above has been followed even by a Division Bench of this court. 11. Hence, the submissions advanced on behalf of the petitioner even in respect of pulses are found to have merit. Accordingly, this application is allowed and the impugned order of cognizance against the petitioner under section 7 of the E.C. Act is quashed. (Shiva Kirti Singh, J) (Hemant Kumar Srivastava, J) The Patna High Court The 16th August, 2010 shahid/ NAFR