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1967 Supreme(Pat) 97
HIGH COURT OF PATNA
S.C. Misra & R.J. Bahadur, JJ.
Ratan Lal Sultania – Appellants
Versus
The State Of Bihar – Respondent
Cr. Misc. Nos. 243, 355, 355 & 692 of 1967 with Cr. Rev. Nos. 964 and 1136 of 1967
Decided On : 19th October, 1967
Messrs Balabhadra Prasad Singh, S.B. Sanyal, Choudhary S.N. Misra and Arun Kumar Sinha (Cr. Misc. No. 243 of 1967);
Braj Kishore Prasad II (Cr. Misc No. 355 and 356 of 1967);
Harilal Agarwal (Cr. Misc. No. 692 of 1907);
Nageshwar Prasad, B.K. Banerjee and S.N. Misra (Cr. Rev. No. 964 of 1967;
Radha Raman and Jageshwar Prasad Sinha (Cr. Rev. No. 1136 of 1967) for the petitioners;
Mr. Bajrang Sahay, Government Advocate for the State.
A report made by a public servant under Section 11 of the Essential Commodities Act, 1955 is not invalid merely because it does not say that an opportunity has been given to the dealer for furnishing explanation with regard to the circumstances of the irregularity, and it can well be regarded as a valid report for launching a prosecution if it contains necessary facts to show to the Court that the reporting authority had applied its mind and the report prima facie shows what particular acts constitute contravention of law.
Headnote:
ESSENTIAL COMMODITIES ACT - SECTION 7, 9, 11 - BIHAR FOODGRAINS DEALERS LICENSING ORDER, 1966 - FORM B, CLAUSE 3(II) - REPORT UNDER SECTION 11 - OPPORTUNITY TO EXPLAIN IRREGULARITIES - NATURAL JUSTICE - MENS REA - VALIDITY OF REPORT - JURISDICTION OF MAGISTRATE.
Fact of the Case:
In a batch of six applications filed by petitioners against their prosecution under Sections 7 and 9 of the Essential Commodities Act, 1955, the common question of law raised was whether a dealer who holds a license under the Bihar Food-grains Dealers Licensing Order, can be proceeded against for contravention of the terms of the license without an opportunity being given to him to explain any irregularity which may be found by the authorities on inspection of the account books of the dealer concerned.
Finding of the Court:
1. A report made by a public servant under Section 11 of the Act is not invalid merely because it does not say that an opportunity has been given to the dealer for furnishing explanation with regard to the circumstances of the irregularity, and it can well be regarded as a valid report for launching a prosecution if it contains necessary facts to show to the Court that the reporting authority had applied its mind and the report prima facie shows what particular acts constitute contravention of law, and the cognizance taken on such report cannot be regarded as a cognizance without jurisdiction. 2. The word "report" in Section 11 of the Act does not necessarily require the reporting authority to mention in the report that he is satisfied that a contravention of law has taken place, but that he should only mention the facts which will make out a prima facie case for an offence committed under the Act. 3. The requirement of law will be fulfilled and a report may very well be made making reference to the fact that a chance was given to the dealer to explain the discrepancy but he gave an explanation which was not found satisfactory by the officer, and a prosecution might as well be started.
Issues: 1. Whether a dealer who holds a license under the Bihar Food-grains Dealers Licensing Order, can be proceeded against for contravention of the terms of the license without an opportunity being given to him to explain any irregularity which may be found by the authorities on inspection of the account books of the dealer concerned? 2. Whether a report made by a public servant under Section 11 of the Act is invalid if it does not say that an opportunity has been given to the dealer for furnishing explanation with regard to the circumstances of the irregularity? 3. Whether the word "report" in Section 11 of the Act requires the reporting authority to mention in the report that he is satisfied that a contravention of law has taken place?
Ratio Decidendi: 1. The requirement of natural justice does not apply to a case where the reporting authority is not coming to any final decision in the matter and the principle of the observance of the rules of natural justice only applies to a case where the authority is competent to give a definitive decision affecting the personal liberty or right to property of an individual. 2. The use of the words in form B, Clause 3(ii) that the commodities received by the dealer must be duly entered in the stock register and failure to do so would be an offence, only when the dealer would fail to furnish an explanation for not doing so, is based on the well-known rule of mens rea. Mens rea is still a necessary element in. the constitution of an offence and if an act is not accompanied by a criminal intent, it will not be an offence; so that in the eye of law only when the dealer fails to furnish a reasonable explanation can this be regarded as an offence which alone can be sent up for trial by a Criminal Court.
Final Decision: 1. Criminal Miscellaneous Nos. 243, 355, 356 and 692 of 1967 and Criminal Revision No. 964 of 1967 are dismissed. 2. Criminal Revision No. 1136 of 1967 is allowed and the prosecution of the petitioner is quashed.
Misra J. –
1. This is a batch of six applications filed by the petitioners against their prosecution under Sections 7 and 9 of the Essential Commodities Act, 1955. The prosecution in all these cases has been started at the instance of public servants who visited the premises of the petitioners where they carried on business in various essential commodities and several irregularities were alleged to have been discovered in the maintenance of stock register etc., amounting to contravention of the conditions of the licences held by them. The reports submitted in all the cases by the public servants concerned relate to such irregularities and accordingly the Sub-divisional Magistrates to whom the reports were submitted have taken cognizance of the cases started against them under Sections 7 and 9 of the Essential Commodities Act (hereinafter referred to as the Act).
2. In Criminal Miscellaneous No. 243 of 1967, petitioner No. 1, Ratanlal Sultania, is proprietor of Shree Shyam Bhandar, Deoghar and is a wholesale dealer holding a licence under the Bihar Food-grains Dealers licensing Order, 1966, holder of another licence under the Bihar Edible Oil Wholesale Dealers Licensing Order, 1964 as well as holder of a licence under the Bihar Kerosene Dealers Licensing Order, 1966. On the 1st of April, 1967, Sri P.K. Das, Assistant District Supply Officer, visited the shop premises of petitioner No. 1, petitioner No. 2 being an employee under him, along with the Inspector of Supply Department and other police officers at 6-30 P.M. The raiding party found that the stock register was not properly maintained inasmuch as 199 bags of foodgrains were found in excess of the stock shown in the stock register, 108 tins of edible oil and one tin of Kerosene oil was also in excess of stock register. There was also a shortage of gram dal by two bags and khesari dal by one bag.
3. On the 3rd of April, 1967, report was made under Section 11 of the Act by Sri P.K. Das for prosecution of the petitioner under Section 7 of the Act to the Sub-divisional Magistrate, Deoghar. It is stated that; the entire stock of foodgrains, non-foodgrains, kerosene oil and edible oil found in the premises as also in the bank godown were seized. The Assistant District Supply Officer, however did not give any opportunity to the petitioners to explain the discrepancy and non-completion of the accounts before making report under Section 11 of the Act. It is not necessary to set out the other facts inasmuch as the main contention of the petitioners in all the cases is based upon a report for prosecution being made under Section 11 of the Act, without giving an opportunity to the dealer to explain the alleged discrepancy which might have satisfied the raiding party that what was an apparent irregularity, in fact, was not an irregularity and thus a prosecution could well have been avoided.
4. In Criminal Miscellaneous No. 355 of 1967, the petitioner is a dealer in foodgrains carrying on business under the name and style of Messrs Bhagwan Das Parmanand and holds a food grains dealers licence under the Bihar Food grains Dealers Licensing Order, 1966. He is carrying on business in the town of Barh. In this case, the Assistant District Supply Officer in the company of the second officer and another Deputy Magistrate of Barh raided the business premises of the petitioner and demanded inspection of the account books. The petitioner's Munshi produced the account books and also showed his stock of grains but no irregularity was pointed out to the petitioner by the officers concerned. Since, however, summons was served on him issued by Sri B.M.P. Sinha, Munsif Magistrate, for prosecution under Section 7 of the Act and under Section 23 of the Bihar weights and Measurements (Enforcement) Act, 1959, on enquiry, the petitioner learnt that Sri A. Singh, Sub-divisional Magistrate, Barh, took cognizance against him on the report of the Assistant District Supply Officer on the 14th of April, 1967.
