G. Malviya, J. - (1.) BY this petition M/s. Kanwal Agencies through its proprietor Harbir Singh and another have sprayed that First Information Report dated 18.4.1990 on the basis of which crime case No. 201 of 1980 under Section 3/7 Essential Commodities Act has been registered at Police Station Kotwali city, district Saharanpur be quashed. It has been further prayed that 355 bags of cement which have been seized should also be released. The petitioner further prays that a writ of mandamus be issued commanding the respondents not to interfere in the business of the petitioners on the basis of the above mentioned first information report, and not apply the provision of U.P. Control Order, 1973 and U.P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) Order, 1977 hereinafter referred to as 1977 Order. We have perused the petition and have heard learned counsel for the petitioners at some length.
(2.) IT is relevant to mention here that admittedly the petitioner has been carrying on business for the sale of cement. As per allegations in the petition when the shop of the petitioner was inspected on 18.4.1990 at 2 -30 p.m., on a physical verification 79 bags of cement were found to be less than the stock which should have been available according to the books and papers available at the shop. Consequently 355 bags of cement were seized and given in supurdagi of Sardar Raghubir Singh father of the petitioner with the direction that he should keep the cement and produce it when so directed. It was also mentioned in the First Information Report that by not displaying the upto date stock on the stock board and by keeping stock of cement by less than 69 bags the petitioners had violated. Sections 10 and 12 of U.P. Cement Control Order, 1973 and simultaneously violated condition Nos. 3 and 6 of the licence issued to him under the said Control Order and were thus liable to be punished under Section 3/7 of the Essential Commodities Act. It was further mentioned in the First Information Report that by not displaying the correct up to date stock on the stock board the petitioner had violated the provisions of U.P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) Order, 1977. It was contended by learned counsel for the petitioners that in view of a government order of the Secretary, Food and Civil Supplies dated 22.6.1989 which has been annexed as Annexure -3 to the petition, it was made clear that since the central government had withdrawn the control on the price and distribution of cement resulting in abolition of any distinction between levy and non -levy cement and since the producers of the cement were selling their commodities in the open market, the State Government has not enforced by control over the price and distribution of cement. Learned counsel for the petitioners consequently contended that the cement had ceased to be an essential commodity and consequently the operation of the Cement Control Order should be deemed to be withdrawn. Learned counsel contends that on the deemed withdrawal of the Cement Control Order the first information report would disclose no offence whatsoever with the result that this Court in its jurisdiction under Section 226 of the Constitution should quash the first information report as also any investigation flowing out of the same. Learned counsel for the petitioners, in this connection, placed reliance on the judgment of this Court in the case of Om Prakash Agrawal v. State of U.P. and others : AIR 1985 Alld. 172 This judgment was a judgment in a Habeas Corpus Petition challenging the order of detention passed against Om Prakash Agrawal under Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 The ground of detention specified that the detenu was found carrying on the business at a premises other than one permitted under the licence that the inspection of his shop revealed that no stock or sale register was maintained by him; that no stock board and rate board were displayed at his shop; that no proper cash memos were issued; that the stock of cement was in excess. Hence the detenu was found to be carrying on his business in violation of the U.P. Cement Control Order, 1973 and U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977 by which he not only is punishable under Section 3/7 of the Essential Commodities Act but was also acting in a manner prejudicial to the maintenance of supply of cement, a commodity essential to the community with the result that the detention order was passed against him. It was argued before the High Court that the provisions of U.P. Cement Control Order, 1973 and U.P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) Order, 1977 were not applicable to the sale of non -levy cement in the State. In that case it was specifically found that no licence was at that time required under the provisions of U.P. Cement Control Order 1973 for sale of nil levy cement in the State, after 1982 notification by the Central Government by which partial de -control on cement had been introduced. It was in this back ground that the division bench of this Court found that the case of detenu was not covered by Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act. It was also found that the U.P. Cement Control Order, 1979 would remain inoperative to the extent it was sought to be applied to non -levy cement. The result was that the detention of the petitioner under the aforesaid Preventive Detention Act was found to be illegal and the Habeas Corpus Petition was allowed.
(3.) HAVING given our anxious consideration to the submissions made by learned counsel for the petitioners we are unable to hold that the first information report against the petitioners discloses no offence. Apart from the dated 22.2.1989 has no statutory effect to override the provisions of the Control Orders which have been framed under the Essential Commodities Act. We find that even the said government order in subsequent paragraphs clearly mentions that since the cement was an essential commodity hence the State Government has decided that for sale, of cement it would be necessary for the dealers to obtain the licence The said government order further mentions that the State Government had decided that only restrictions mentioned in paragraphs 5, 6, 7, 8 and 9 of the U.P. Cement Control Order, 1973 should be withdrawn on a temporary basis till further orders. Consequently it is cleat that the cement was always an essential commodity. Once this position is established, the provisions of 1977 Order would be attracted for the sale of cement. Paragraph 4 of the 1977 Order so far as it is relevant for our purposes read as follows: - - 4. Exhibition of price list and stock by retailers - -(1) Every retailer shall before commencement of his business on any day exhibit at the entrance or some other prominent place of his business premises the retail price list of different classes or varieties of scheduled commodities actually held in stock by him for sale as fixed or approved by the Central or State Government, if any, or as fixed by the manufacturer, producer or distributor and where no such price is fixed or approved by the Government or fixed by the manufacturer, producer or distributor, the price (inclusive of all taxes) at which the scheduled commodity is offered for sale by the retailer.;