SHRI DARSHAN SAO AND SHRI SUBHASH CHAND Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution for quashing the Bihar Shariff P.S. case no. 38(8) 76 dated 17.9.1976 instituted against the petitioners on the basis of a written report filed by Shri R.S. Dwivedi Supply Inspector, Bihar Sharif, on which the police drew up a formal first information report and instituted the aforesaid P.S. Case no. 38(8) 76. In this report Shri R.S. Dwivedi, Supply Inspector, Bihar Sharif, alleged that on 17.8.1976 at 11 A.M. he inspected the business premises of the petitioners in presence of the witnesses and found 441 Eveready torch dry battery cells in the shop but 101 dry battery cells had not been entered in the stock register and the stock position and the sale price of the torch batteries had not been displayed on the notice board. According to the report, the provision of the Bihar Essential Commodities - -other than Foodgrains -Price and Stocks (Display and Control) Order, 1967 and the Bihar Essential Articles (Display of Price and Stocks) Order, 1975 (hereinafter referred to as 'the 1975 Order'), Sec. 3 of the Essential Commodities Act, 1955 and Rule 114 of the Defence of India Rules, 1971, had been contravened in the first information report, the offences are described as owe under Sec. 3 of the Essential Commodities Act, 1955 and Rule 114 of the Defence of India Rules. While the investigation was proceeding, the petitioners filed the present application in this court. In my opinion, this application must be allowed. It is well settled that if the allegations in the first information report takes at their face value and accepted in their entirety do not disclose any offence, the investigation by the police in a case instituted upon such a report would be mala fide and an abuse of its powers and can be restrained by an appropriate writ. In (1) S.M. Sharma V. Bipen Kumar (A.I.R. 1970 S.C. 786) Bhargava J. speaking for the Supreme Court, pointed out that:

(2.) In the present case also, the allegation in the first Information report, even if they are taken at their face value and accepted in their entirety, do not make out any offence and, therefore, the police, has no authority to proceed with the investigation and its proceeding with the investigation will amount to mala fide exercise and an abuse of powers. It is manifest and, indeed it is not disputed, that no offence under the Defence of India Rules 1971, is disclosed for on 17.8.1976 when the offence is alleged to have been committed, the failure to display the stock and prices of dry battery cells for torches was not a contravention of the 1975 Order, the Order framed under the Defence of India Rules, 1971 which, according to the first information report, is alleged to have been contravened. According to Clause 3 of the 1975 Order, the dealer is required to display the stock position and the price of articles specified in Schedule 1 or Schedule II. Dry cells for torches were originally specified as one of the articles in Serial No. 21 of Schedule I to the Order, but by the Bihar Essential Articles (Display of Prices and Stocks) Amendment order, 1976 promulgated by notification no. G.S.R. 6, dated the 20th February, 1976, dry battery cells of torches etc were deleted from schedule I of the said order with the result that after February, 1976, the dealer was not required to display the prices and stocks of dry battery cells of torches etc.

(3.) The question, however, remains if the allegation discloses an offence punishable under Sec. 7 of the Essential Commodities Act. Clause 4 of the Bihar Essential Commodities - -other than Foodgrains - -Prices and Stocks (Display and Control) Order, 1967 (hereinafter referred to as 'the 1967 Order') requires a dealer to display the price list and stock position of the commodities specified in Schedules I and II to the order and dry cells for torches is listed under serial no. 12 of schedule I. The allegations, therefore, clearly disclosed a contravention of the 1967 Order.