BAJRANG LAL AGARWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition has been filed for declaring that no license is required by a producer (oil miller) under the provisions of Bihar Trade Articles (Licenses Unification) Order, 1984 (Licencing Order' for short) and for quashing the entire criminal prosecution being Gamharia P.S. Case No. 67 of 1992 dated 11.11.1992 (G.R. Case No. 33 of 1992) registered under Section 7 of the Essential Commodities Act, including the order dated 12.08.1994 passed by Special Judge (E.C. Act), Chaibasa rejecting the prayer of the petitioners for their discharge. The facts in short:

(2.) On 11.1.1992, the factory of the said firm was raided by the Officials of the supply department. An F.I.R. was lodged inter-alia alleging that there was shortage of mustard oil tins vis-a-vis the actual stock/ the stock register/challans/ cash memo etc; and that the returns were not filed which was violation of Clause 20 of the Licencing Order'; and that there was violation of Clause 7 of the Licence; and that there was violation of Clause 3 of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 ("the Display Order" for short). However, it was admitted in the F.I.R. that the price and display board was found displayed. The available stock was seized. A charge sheet under Section 7 of the Essential Commodities Act was filed, on which cognizance was taken on 9.2.1993. A discharge petition was filed, interalia on the ground that no licence was required by the firm under the 'Licencing Order', but vide order dated 12.8.1994, it was rejected.

(3.) The background: This writ petition was admitted on 28.9.1994. After hearing the parties it was dismissed by judgment dated 27th August 1997. Learned Single Judge inter-alia held as follows: 11. Every producer and manufacturer is definitely a dealer either wholesale or retailer because the manufacturer or producer would definitely sell their products either on wholesale or to bulk consumer through agent or directly, so the producer or manufacturer has got dealership inherent within it So the producer or manufacturer is definitely a dealer and he deals with the products either as a retailer or whole-seller. Hence the producer or the manufacturer cannot be usted totally from the dealership either wholesale or retail or in other words manufacturer or producer cannot be said to be distinct not connected with dealership at all. This matter was considered in its proper perspective by the State Legislature while putting the definition of the dealer under the Unification Order as per Clause 2 (e). In the definition quoted above, only the manufacturer of Sugar has been excluded from the definition of dealer which directly infers that the manufacturer/producer of other essential commodities are within the purview of the definition of dealer as per Section 2 (e). Only because separate definition has been given about the producer or manufacturer, it does not mean that they are to be debarred as dealer. It has already been stated that every manufacturer or producer is definitely a dealer. The definition of dealer as per U.P. Order as referred to in the judgment of Parsuram Prasad is different from that of the Unification Order of Bihar. Here the definition of dealer includes the manufacturers also except that of Sugar alone. If the definition of dealer in the Unification Order is read conjunctively with Clause 3 of the Central Order, 1977, regarding edible oil, it is clear that producer/manufacturer is also required to take a license but whether their licence would be of whole-seller or retailer would depend upon the style of business of individual producer/manufacturer. The State Order must be read harmoniously with the Central Order and if there is any gap or vacuum in the State Order, then Central Order must come into play in the field and the wordings "Notwithstanding...." etc., in the Central Order under Clause 3 eloquently speaks of the same. 13. I have come to the conclusion as discussed above that definition of dealer under the Unification Order includes manufacturer/ producer of edible oils/oilseeds also and, as such, as a dealer, the petitioner oil mill has rightly taken a licence as required also under the Central Order as harmonious construction of both the Orders. Thus none of the judgments as referred to above are applicable in the present case.