S. Poddar @ Satya Narain Poddar vs The State of Bihar and Another

R.N. Prasad, J.—This application u/s 482 of the Code of Criminal Procedure has been filed by the Petitioner for quashing the order dated 31.8.1989 passed by the Special Judge, West Champaran at Bettiah in case No. 3 of 1989, taking cognizance for the offence u/s 7 of the Essential Commodities Act, hereinafter referred to as ''the Act''.

This application had come for hearing before a Single Judge, who by his order dated 24.1.1992 ordered for hearing by a Division Bench. However, no point was formulated for hearing by a Division Bench.

The case of the prosecution is that on 28.7.1988 under the order of the District Magistrate, West Champaran, District Supply Officer, Bettiah along with the complainant, Senior Marketing Officer, Bettiah visited Hari Nagar Sugar Mill in connection with some enquiry and investigation. In course of their investigation and enquiry they also examined the matter of despatches of free sale sugar by the mill against the quantity of free sale sugar released by the Government and found that in June and July, 1988 various contraventions was committed by the mill. It was also found that the mill was not submitting the details of its monthly despatch of free sale sugar against the monthly release to it by the Government to the District Magistrate. Accordingly, vide memo No. 602 dated 10.8.1988 the mill and its manager were asked to submit to the District Magistrate the details of monthly despatches of free sale sugar against the monthly quantity of free sale sugar released by the Central Government from January, 1988 to July, 1988 and vide memo No. 603 dated 10.3.1988 they were asked to show cause against the prosecution for contravention committed in the despatch of free sale sugar in the months of June and July, 1988. The mill filed the details of the despatches as well as show cause against the prosecution and it was found that the despatches in the month of June, 1988 are in agreement with the instructions but despatches in the month of July, 1988 are not in accordance with the requirement laid down in Clause 3 of the notification dated 9th May, 1980 read with clauses 4 and 5 of the (Central) Sugar Control Order, 1966. In the 3rd week of the said month i.e., beginning from 16th to 22nd July, 1988 despatch was less than 20% of the quota released for free sale and the despatch was less by 33 quintals in the aforesaid month out of the total release for free sale sugar i.e. 30421 quintals. The mill and its managers said that they were sending weekly and monthly despatches of free sale sugar as required to Sugar Directorate, New Delhi, and the District Administration may refer the matter there and after getting instruction from the Sugar Directorate, New Delhi they could be able to comply with the requirement of memo No. 602 dated 10.3.1988 and hence the mill and the General Manager contravened the Clause 11(b) of the (Central) Sugar Control Order, 1966.

The notification dated 9th of May, 1980, referred to in the complaint petition has been annexed as Annexure 1 to this petition which contains the guideline for sale and despatch of free sale sugar by the producer. Learned Counsel for the Petitioner pointed out that the guideline contained in Annexure 1 to the petition is directory and not mandatory and the variation in sale and despatch of free sale sugar is obvious from the provisions of Annexure 1 itself. In this regard it is necessary to deal with the provisions contained in Annexure 1 to the petition. Clause 2 of the said notification says that no producer shall sell and despatch less than monthly quota of sugar to him for sale by the monthly order, within a period specified therein. Clause 3 of the said notification says that no producer shall sell and despatch less than 20% of the monthly quota of free sale sugar released to it for sale in each of the following weekly period of the month. The aforesaid two clauses are not independent. It is obvious from Clause 3 that minimum limit has been prescribed but no maximum limit has been prescribed. In case the producer sells and despatches 20% of the monthly quota of free sale sugar released for sale in each week, it would come to only 80%. However, Clause 2 says that monthly quota must be despatched within the period specified therein. Besides, it has also been mentioned in the aforesaid notification that minimum 20% of the monthly quota for the period 1st to 7th of the month may be completed up to 10th of the month if the total minimum despatch for the period ending with the 15th of the month is not less than 40% of the monthly quota. It is thus obvious that variation is implicit from the provisions contained in Annexure 1 to the petition itself and thus it appears that there is substance in the submission of the learned Counsel for the Petitioner.

It further appears from the complaint petition itself that the release of sugar was made effective from 27.6.88 for the month of July, 1983 and the Petitioner by 15th of July despatched 19622 quintals i.e., 64.51% of the monthly quota of free sale sugar and by the end of 3rd week, the Petitioner despatched 23753 quintals of free sale sugar out of monthly quota which is equivalent to 79% of free sale sugar and by the end of 4th week the Petitioner despatched 30388 quintals of free sale i.e., 33 quintals less than the total release of sugar.

The object behind promulgating the order under the Act and the notification contained in Annexure 1 to the petition was that there may net be scarcity of essential commodity for consumption by the people. The allegation as made in the complaint petition was that in the 3rd week of the month the Petitioner despatched 13.5% i.e., less than 20% of the monthly quota of free sale sugar but if the total despatches by the end of the 3rd week of the month is taken into consideration it would appear that the Petitioner despactched 79% of the monthly quota of free sale sugar although he was required to despatch 63% of the monthly quota and hence the Petitioner cannot be held guilty for contravention of despatches of less than 20% of the quota of free sale sugar. In case a producer despatches entire monthly quota in the first week of the month it cannot be said that it was made to defeat the object of the Act as the entire stock was in the hands of the person concerned to sell the sugar in the market as deemed fit and necessary for the purpose of consumption by the people. In such circumstances it cannot be inferred that there was mens rea for contravention of the in-ctruction as contained in Annexure 1 to the petition. Further more, the allegation has been made that the Petitioner despatched 33 quintals less of the monthly quota of free sale sugar which is a negligible quantity and is very trifling in nature. It is well settled rule of law that acts indicate intention of a person and also that act itself does not make a man guilty unless his intention be so. In the case of Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, it has been held that mens rea is an essential ingredient under the Act. Similar view has been expressed in the case of Jai Prakash v. The State of Bihar (1982 BRLJ 157 (H.C) and in the case of M/s Mewalal Kapildeo Prasad v. State of Bihar and Ors. (1978 P.L.J.R. 315). Thus it is obvious from the facts and circumstances mentioned above that there was no mens rea on the part of the Petitioner to commit an offence and the law laid down in the aforesaid decisions is fully applicable in the facts and circumstances of the case.

With regard to the allegation of contravention of Clause 11(i)(b) of the Sugar Control Order, 1966, learned Counsel for the Petitioner contended that according to the complaint petition itself all the desired informations were furnished and no statement had been made in the complaint petition that the Collector was authorised by the Central Government/State Government for the purpose. In support of the submission learned Counsel drew our attention to the notification contained in Annexure 1. It appears from Clause (iv) of the said notification (Annexure 1) that the producer was required to send information of despatches to such authority as may be specified In this behalf by the Government of the State to which the Sugar is despatched and also to the Government of the State in which the producer''s factory is located. Learned Counsel for the opposite party also could not produce any notification authorising the Collector to receive such information with regard to sell and despatch of free sale sugar. In the complaint petition also there is nothing mentioned that the Collector was authorised to receive information with regard to sell and despatch of free sale sugar. In the absence of such authorisation there cannot be any violation of any provision. Besides, it is obvious from the complaint petition itself that the desired information was given by the Petitioner and thereafter a complaint was filed. Thus the Petitioner cannot be held guilty for not giving the details of sell and despatch of free sale sugar.

On consideration of the entire facts and circumstances of the case, as discussed above, the order taking cognizance and the prosecution of the Petitioner cannot be held to be in accordance with law and accordingly the order impugned dated 31.8.1989 taking cognizance is set side and the application is allowed.