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Ajit Singh Bothra and ors. Vs. State of Assam and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantAjit Singh Bothra and ors.
RespondentState of Assam and anr.
Excerpt:
- .....submits that admittedly the petitioner is a dealer in gur and molasses and not an owner of a sugar factory; the provision of the molasses control order of 1961 or section 18-g(2)(b) of the industries (development & regulation) act of 1951, therefore do not apply to it; and as such, it cannot be prosecuted for violation of the aforesaid provisions of law and punished under section 24 of the said act; for possession of molasses by the petitioner firm without permit, the prosecution, therefore, is not warranted by any law, and liable to be quashed.5. the material portion of section 24 of the act is as follows:24. penalties. - (1) if any person contravenes or attempts to contravene or abets the contravention of -(i) & (ii) ....(iii) any order made under section 18g, or(iv) ... he shall.....
Judgment:

Baharul Islam. Ag. C.J.

1. These applications, all under Section 482 of the Code of Criminal Procedure, 1973, originally came up for hearing before a single Judge who referred the matter to the Division Bench as they involve substantial questions of law. The questions of law in all these petitions are common. This judgment of ours, therefore, will dispose of all of them. It will be sufficient if the facts of only one case, namely, Criminal Revision No. 150 of 1977 are stated.

2. The material facts, in brief are that the petitioner is a partner of a firm carrying on business at Fancybazar, Gauhati. It deals in, among other things, molasses and gur in buying, storing and selling these commodities meant for cattle feed. For this purpose the firm imports molasses and gur from whole-sale dealers and commission agents of various places of Uttar Pradesh and stores the same in its godowns. On 4-2-1977 the firm received a notice issued by the Inspector of Excise, Gauhati, asking it to furnish a daily return to the Superintendent of Excise, Gauhati, showing daily sale of rab gur with effect from 5-2-77. On 5-2-77 the Inspector of Excise, aforesaid, seized from the petitioner firm 6540 tins of rab gur, each containing 25 Kgs. approximately. The gur was allowed to be retained by the firm on execution of a Jimmanama by the petitioner. The petitioner was served with yet another notice dated 10-2-77 (Annexure C) directing him to 'stop bringing consignments of molasses and rab gur from now on without being authorised by the Molasses Controller, Assam, who is the Commissioner of Excise, Assam, Gauhati-1'. Thereafter the Inspector of Excise, Gauhati, filed an offence report dated 2-4-77 against the petitioner firm in the Criminal Court at Gauhati whereupon criminal Case No. 561 C/77 was registered. Summons was issued to the petitioner. The petitioner, therefore, has filed this application for quashing the criminal case.

3. The offence report is for prosecution of the petitioner firm represented by the active partners for 'violation of the provision of Molasses Control Order 1961 read with Section 18-G(2)(b) of the Industries (Development & Regulation) Act 1951, punishable under Section 24 of the Industries (Development & Regulation) Act, 1951', for 'unlawful possession of Molasses Rab without permit'.

4. Shri P. C. Kataki. learned Counsel appearing for the petitioners in all the cases, submits that admittedly the petitioner is a dealer in gur and molasses and not an owner of a sugar factory; the provision of the Molasses Control Order of 1961 or Section 18-G(2)(b) of the Industries (Development & Regulation) Act of 1951, therefore do not apply to it; and as such, it cannot be prosecuted for violation of the aforesaid provisions of law and punished under Section 24 of the said Act; for possession of molasses by the petitioner firm without permit, the prosecution, therefore, is not warranted by any law, and liable to be quashed.

5. The material portion of Section 24 of the Act is as follows:

24. Penalties. - (1) If any person contravenes or attempts to contravene or abets the contravention of -

(i) & (ii) ....

(iii) any order made under Section 18G, or

(iv) ... he shall be punishable with imprisonment which may extend to....

Let us now turn to Section 18G of the Act. The material portion of Section 18G may be set out:

18-G. Power to control supply, distribution, price etc. of certain articles. - (1) The Central Government, so far as it appears to it to be necessary or expedient for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any scheduled industry may, notwithstanding anything contained in any other provision of this Act, by notified order, provide for regulating the supply and distribution thereof and trade and commerce therein,

(2) Without prejudice to the generality of the powers conferred by Sub-section (1), a notified order made thereunder may provide -

(a) ....

(b) for regulating by licences, permits or otherwise, the distribution, transport, disposal, acquisition, possession, use or consumption of any such article or class thereof;

(c) to (h) ...

Sub-section (1) of Section 18G enables the Central Government by a notified order to provide for regulating the supply and distribution of any article or class of articles relatable to any scheduled industry. It can also regulate the trade and commerce of any of those articles. As 'Sugar' appears at item No. 25 in the first Schedule to the Act, it is not disputed that the commodities in question are articles relatable to a scheduled industry. The Central Government also under Sub-section (2) of Section 18G by a notified order, may provide for regulating by licences, permits or otherwise, the distribution, transport, disposal, acquisition, possession, use or consumption of sugar and molasses.

By virtue of the powers conferred by Section 18G of the Act, the Central Government has made the Molasses Control Order, 1961, which contains, inter alia, clauses 3, 4, 8 and 9, which are relevant for our purpose. They are as follows:

3. Restrictions on sale. - Every owner of a sugar factory shall notwithstanding any contract to the contrary, sell the entire quantity or such portion thereof, of molasses produced by him or held in stock by him to any person or persons as may be specified by general or special order in each case by the Molasses Controller and shall not dispose of such molasses in any other manner.

4. Restrictions on removal. - No owner of a sugar factory shall remove or permit the removal of any molasses, whether sold or unsold, from any part of his factory to any place outside such factory except with the written permission of the Molasses Controller.

8. Additional functions of the Molasses Controller. - In addition to the powers specified in other clauses of this Order, the Molasses Controller may also,-

(a) prescribe the procedure for ascertaining annual requirements of molasses by different consumers or industrial undertakings and for allocating supplies to them from sugar factories;

(b) prescribe condition's for despatch of molasses and for payment of price thereof,

(c) nominate officers subordinate to him to supervise arrangements for storage and sale of molasses and to inspect the premises;

(d) prescribe the procedure for testing and fixing the price of molasses.

9. Maintenance of accounts, etc. - Every owner of a sugar factory and every industrial undertaking receiving or using molasses shall maintain such books, accounts and records relating to the production of molasses and its disposal as the Molasses Controller may prescribe and furnish such returns or other information relating thereto as may, from time to time, be called for by the Molasses Controller.

(emphasis added).

Section 25 of the Act enables the Central Government to delegate its powers to be exercised by such officer or authority including the State Government or officer or authority subordinate to the Central Government as may be prescribed. Under Sub-section (2) of Section 25 of the Act the Central Government may also direct that the powers may be exercised by such officer or authority subordinate to the State Government as may be prescribed by a notified order. Although no notified order has been placed before us, it has not been disputed by Mr. Kataki that the powers can be, and have been, validly delegated by the Central Government to the State Government of Assam and to the Controller of Molasses, Assam,

The Controller of Molasses. Assam, by an order dated 17th April, 1965, 'in exercise of the powers conferred by Clauses 3, 4, 8 and 9 of the Molasses Control Order, 1961' ordered, inter alia, as follows:

1. Any distillery factory, industrial undertaking or any person/persons requiring molasses shall apply to the Controller of Molasses, Assam in the prescribed form No. NG 1 for a permit allotting Molasses from the Sugar Factory. On receipt of such application, the Controller of Molasses shall check the requirement of the molasses applied for and after making such variations therein as he considers necessary shall make an allotment of molasses to each or any of the applicants. The allotments shall be made in form No. NG. 2. The Controller may, if necessary, at any time make modification in the Orders allocating molasses.

(emphasis added).

6. A perusal of clauses, 3, 4, 8 and 9 of the Molasses Control Order shows that certain legal duties and obligations are cast on the 'owner of a sugar factory' and these obligations are enforceable by the Molasses Controller. Molasses Controller has been defined in the Molasses Control Order, 1961, as follows:

'Molasses Controller' means an officer appointed as such by a State Government for the purposes of this Order and includes any person empowered by a State Government to exercise all or any of the functions of the Molasses Controller under this Order.

The object of the Industries (Development and Regulation) Act, 1951, is to bring under the Central control the development and regulation of a number of important industries, the activities of which affect the country as a whole and the development of which must be governed by the economic factors of all-India import. The Act confers on the Government power to make rules for the registration of existing undertakings, for regulating the production and development of the industries in the Schedule to the Act. Sub-section (1) of Section 18G, as noticed earlier, confers powers on the Central Government to regulate the supply and distribution of sugar and trade and commerce therein and Sub-section (2) provides for regulating by licences, permits or otherwise the distribution, transport, disposal, acquisition, possession, use or consumption of sugar and molasses. By virtue of powers given under Sub-sections (1) and (2) of Section 18G the Central Government could have provided in the Molasses Control Order for making provisions similar to the ones made in Section 18-G(2)(b), but in the Molasses Control Order the Central Government have made provisions for controlling only the 'owner of a sugar factory' and not mere dealers in sugar and molasses.

But in para 1 of the Order dated 17th April, 1965 of the Molasses Controller of Assam, he has directed, in addition to the distillery factory and industrial undertaking, 'any person/persons requiring molasses' to apply to him for permit for allotment of molasses from the Sugar Factory. In our opinion 'any person/persons requiring molasses' do not come within the preview of Clauses 3, 4, 5, 8 and 9 of the Molasses Control Order of 1961. The directions given by the Molasses Controller, Assam, to the petitioner, who is not the owner of a sugar factory, are in excess of powers conferred on the Molasses Controller by the Molasses Control Order, and are therefore without jurisdiction. The non-compliance of the directions, therefore, is not an offence, nor is possession of gur and molasses without permit. The offence report of the I Inspector of Excise, Gauhati and the con-sequent criminal cases pending in the Criminal Court at Gauhati are without jurisdiction. They are quashed.

7. The petitions are allowed and the Rules are made absolute. The seized articles are released and the zimmanamas cancelled.


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