- (1.) THIS is an application for quashing the order dated 15.4.2005 passed by learned SDJM, Palamau at Daltonganj in G.R. Case No. 447 of 1999 corresponding to E.C. No. 5 of 1999. The petitioner further prays for quashing the entire proceeding in connection with aforesaid G.R. No. 447 of 1999 corresponding to E.C. No. 5 of 1999.
(2.) IT appears that a raid was conducted in the business premises of petitioner situated at Ward No. 5, Dhobi Mohalla Shantipuri , Daltonganj Township, P.S. - Daltonganj Town, District - Palamau and during the said raid 30 tins of mustered oil 'Dulara Brand' and 5 tins mustered oil 'Anmol Brand' total 35 tins having a weight of 5 quintal and 25 kg seized. It is alleged that on demand of license, the shopkeeper disclosed that he had no license. He also did not furnish any document regarding purchase of aforesaid mustered oil. Thus, informant prima facie concluded that the shopkeeper (petitioner) indulged in illicit sale and purchase of edible oil, which is violative of Bihar Trade Article (License Unification) Orders 1984 (hereinafter referred as Unification Order) punishable under section 7 of the Essential Commodities Act. Accordingly on the basis of written report of informant Daltonganj Town P.S. Case No. 133 of 1999 dated 24.4.1999 instituted and police took up investigation. It appears that after completing the investigation, police submitted charge sheet. On the basis of said charge sheet Special Judge, E.C. Act, Palamau at Daltonganj took cognizance of the offence vide order dated 18.2.2000. It appears that the said order of cognizance challenged by the petitioner in this court in Cr. Misc No. 6134 of 2000 but the same was permitted to be withdrawn vide order dated 17.01.2001 with liberty to the petitioner to raise all the points at the time of framing of charge. It appears that thereafter the case has been transferred in the file of SDJM, Palamau for trial, where an application under section 239 of the Cr.P.C. has been filed for discharge, which was rejected by learned SDJM, Palamau vide order dated 15.4.2005 on two grounds i.e. the application for discharge is not maintainable as there is no provision in Chapter XX of the Cr.P.C. for discharge of accused and secondly accused -petitioner is dealing in edible oil without any license in violation of Unification Order. Hence he explained the substance of accusation to the petitioner. Against that the present case has been filed.
(3.) IT is submitted by Sri. A.K. Kashyap, Senior Advocate appearing for the petitioner that the Central Government had promulgated Pulses, Edible Oil Seeds and Edible Oils ( Storage Control) Order 1977 fixing the storage limit of edible oil for the wholesale dealer and retail dealer. It is submitted that the aforesaid orders has been amended by the Central Government by an order dated 10.11.1997 issued under section 3 of the Essential Commodities Act ( hereinafter referred as the 'Act') . As per the said amendment the Central Government deleted word " Edible Oilseeds and Edible Oils" from its preamble, title and from all other Clauses so as to confined the order to Pulses only. It is submitted that from the date of issuance of amendment order there remained no Central Order in respect of Edible Oilseeds and Edible Oils. Therefore, it is submitted that part of Unification Order and Notification contained in GSR 49 dated 17th of October 1985 by which a wholesale dealer or a retail dealer required to obtain license for dealing in edible oil has become impliedly repealed. Accordingly, it is submitted that no license required for dealing in edible oil, as such there is no violation of any Control Order by the petitioner. Hence, the prosecution launched against the petitioner is illegal and without jurisdiction. It is further submitted that in any event, since provision contained in Unification Order is repugnant to the amendment made by Central Government in the Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order 1977, therefore, as per Article 254(1) of the Constitution of India, the same is void. It is then submitted that in the Unification Order as well as Notification No. GSR 49 dated 17th October 1985 as amended from time to time, the B and C Class of Cities have not been defined, therefore, no storage limit of edible oils has been fixed for the Township of Daltonganj. It is submitted that under the Unification Order, fixation of storage limit is a sine qua non for obtaining license. As no storage limit has been fixed, therefore petitioner is not required to take any license for dealing in the edible oil. Hence on this ground also the prosecution of the petitioner is liable to be quashed. On the other hand Sri S.N. Rajgarhia, learned Additional P.P. submits that while amending the Pulses, Edible Oilseeds and Edible Oil (Storage Control) Order 1977 the Central Government had not repealed the Unification Order or notification issued by the State Government fixing storage limit of edible oil nor the Central Government directed that no license is required for dealing in edible oil under the provision of Unification Order. Therefore, the submission of learned counsel for the petitioner that by virtue of amendment in the aforesaid Central Order, the Unification Order and Notification No. 49 dated 17.10.1985 stand repealed, has no leg to stand. It is submitted that Unification Order has been issued by the State Government in the year 1984 after obtaining the prior concurrence of the Central Government. It is submitted that Central Government delegated the power to State Government for issuance of Control Order under the Act. It is submitted that even though there is no Central Order fixing the storage limit of edible oil, the Unification Order is operative on the date of raid, therefore, petitioner is required to take license for dealing in edible oil. As he did not do so the same is violative of clause 3 of the Unification Order, punishable under section 7 of the Act. It is submitted that by the amendment, Central Government omitted edible oil from the aforesaid Central Order, thus the question of repugnancy does not arise. Accordingly, it is submitted that the second contention of learned counsel for the petitioner is also misconceived and liable to be rejected.;