- (1.) G. P. Mathur, J. This petition under Article 226 of the Constitution has been filed for quashing the F. I. R. under sections 3/7, Essential Commodities Act (for short B. C. Act) lodged on 4-1-97 at P. S. Gobhana District Aligarh, on the basis of which case crime No. 2 of 1997 has been registered and also the seizure memo of the same date.
(2.) THE allegations in the F. I. R. is that the premises of Aligarh Roller Hour Mills Private Limited (hereinafter referred to as 'mills') were inspected on 4-1-97 and the stock register showed that 8,804. 09 qtls. of wheat had been stored in the godown of the Mills and 14,644. 63 qtls. of wheat had been stored by it in the godowns of State Warehousing Corporation. Besides above, 1,566. 60 qtls. wheat was under processing and thus the total stock of wheat with the Mills was 25,015. 32 oils. According to the records of Regional Food Controller, the milling capacity of the Mills was 11,340 qtls. per week and thus the Mills was havingastockofl3,675. 32qtls. ofwheatin excess of one week's milling capacity. THE Mills had, thereby, contravened the provisions of U. P. Food grains (Procure ment and Regulation of Trade) Order, 1982 as amended by Fifteenth Amend ment which came into force on 10-12- 96 and U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 as amended by Twenty ninth Amendment. In order to appreciate the conten tions raised, it is necessary to notice the provisions of the Control Orders. In exer cise of powers conferred by section 3 of E. C. Act, the Government made the U. P. Food grains (Procurement and Regulation of Trade) Order, 1982 (hereinafter referred to as 'the Control Order' 1982' ). Clause 2 (1) of the Control Order defines a "manufacturer' and it means a person engaged in the business of milling or processing of food grains or manufacturing food-stuff from there. The relevant part of clause. 4 of the Control Order, as it originally stood, which has bearing on the controversy in dispute is reproduced below: Clause 4 (1) "no retailer, whole-seller, commission agent, or manufacturer shall at a time have in his stock food-grains in excess of the limits specified below: (One) Wheat- (a) Retailer-50qtls. (b) Whole-seller-150qtls. (c) Commission agent-150qtls. (d) Manufacturer-A quantity correspond ing to the thirty days of manufacturing capacity. " The Control Order was amended on 7-5-88 and the period of 'thirty days' for a manufacturer as provided in sub-clause (d) was substituted by 'seven days'. In exer cise of powers conferred by section 3 of the E. C. Act the Government made U. P. Scheduled Commodities Dealers (Licens ing and Restriction on Hoarding) Order, 1989 on 31-8-89. Clause 11 of this Control Order provides that no dealer either by himself or any person on his behalf store or have in possession at any time any scheduled commodity in excess of the quantity specified therein. With regard to wheat the quantity specified is-stock limit according to provisions of clause 4 (a) (i) of the U. P. Food grains (Procurement and Regulation of Trade) Order, 1982 as amended from time to time. The Control Order, 1982 was amended by Fourteenth Amendment Order, 1993 which came into force on 26-6-93 by which clause 4 (1) relat ing to stock limit was amended and the item relating to wheat was altogether omitted. The result of this amendment was that with effect from 26-6-93 there ceased to be any limit for holding a stock of wheat and thus a dealer or manufacturer could have unlimited quantity of wheat in his stock. U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 was also amended by Twenty-sixth Amendment Order on 31-1-95 and from clause 11 wheat was omitted. Consequently the dealers were not required to have any licence in order to carry on business of sale or purchase of wheat with effect from31-l- 95. The Government issued U. P. Food grains (Procurement and Regulation of Trade) (Fifteenth Amendment) Order, 1996on 10-12-96 whereby sub-clause (i) of clause 4 (i) of the U. P Food grains (Procurement and Regulation of Trade) Order, 1982 was amended and a stock limit for wheat was reintroduced which for a manufacturer became "a quantity cor responding to seven days manufacturing capacity". U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 was also amended by Twenty ninth Amendment Order, 1996 on 16-12-96 and in clause 11 with regard to wheat the words "no limit" were sub stituted by--"stock limit according to the provisions of clause 4 (1) of U. P. Food grains (Procurement and Regulation of Trade) Order, 1982 as amended from time to time. "
(3.) THE position of the Control Orders described above would show that after 26-6-93 a manufacturer could have ah un limited quantity of wheat in his stock and the law did not impose any kind of restric tion at all for keeping only a limited stock. THE position completely changed with the promulgation of Fifteenth Amendment Orderonlo-12-96anda limit of seven days manufacturing capacity was imposed with regard to a manufacturer. Sub-section (2) of section 5 of the U. P General Clauses Act provides that unless the contrary is expressed, an Uttar Pradesh Act shall be construed as coming into operating immediately on the expira tion of the day preceding its commence ment. This provision is similar to section 5 (3) of the General Clauses Act, 1897. In Income tax Commissioner, Punjab v. Jhodamal, AIR 1966 SC 1433, it has been held that Amending Act which was brought into force on April 1,1939 must be deemed to have come into operation at a point of time immediately on the expira tion of March 31,1939. By virtue of section 6 of E. G. Act a Control Order has an overriding effect and, therefore, its posi tion is similar to that of an enactment made by the legislature. The U. P Food grains (Procurement and Regulation of Trade) Fifteenth Amendment) Order, 1996 by which the Control Order, 1982 was amended was issued on 10-12-96 and therefore it shall be deemed to have come into operation at a point of time immedi ately on the expiration of 9- 12-96. The moment the day 9th, December ended, the day 10th, December started as the time does not stop running. There is no inter regnum, not even a millionth or a billionth of a second between the expiration of 9th December and commencement of 10th December. If a manufacturer had wheat in his stock in excess of seven days manufac turing capacity on 9th December, 1996 he was not contravening provision of the Control Order and it was perfectly lawful. But the moment 10th December, 1996 commenced it amounted to contravention of the Control Order and became an of fence not on account of any act or omission on his part but by operation of law. The Control Order has the effect of making a wholly lawful act or state of affairs, unlaw ful. On a practical plain, all such manufac turers who had a stock of wheat in excess of seven days manufacturing capacity at the close of business hours on 9-12-96 were landed in situation where they became guilty of an offence under the E. C. Act when they reopened their unit at the com mencement of the business hours on 10-12-96. A manufacturer may have been ad mitted in a hospital with a serious ailment fighting for life or may have gone to a place for away from his manufacturing unit in connection with some work or pilgrimage but by operation of a law made by the Government he became a criminal on 10-12-96.;