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Kailas Prosad Musaddi Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1984CriLJ1259
AppellantKailas Prosad Musaddi
RespondentThe State
Excerpt:
- .....is only natural that the dealer should maintain daily accounts. he cannot avoid the liability to maintain accounts on the mere plea that no form has yet been prescribed. this apart, clause 4 of the licence indicates that whenever the licensee makes a sale he shall enter the name and address of his firm, the date of sale and the quantity of kerosene sold on the back of the licence and shall sign such entries. this clause in the licence itself is sufficient to indicate not only that the licensee should maintain daily accounts but that he should make simultaneous entries with every sale. in that view of the matter, we are not inclined to take a view different from what the learned s.d.j.m. has taken on this point. but so far as the other point is concerned, we think that the charge as.....
Judgment:

B.C. Chakrabarti, J.

1. This revisional application is directed against an order dated 24.9.1981 passed in D.E.B.G.R. Case No. 527 of 1974. The petitioner No. 1 is a partner of a partnership firm, M/s. Sree Durga Oil Mills and the petitioner No. 2 is its manager. A licence was issued in favour of the firm for carrying on business as a dealer in kerosene oil. On 15.9.1974 the officer-in-charge of Mahadipur Camp lodged a written complaint with the Englishbazar Police Station that upon checking the stock of kerosene oil at the premises of the said firm, the petitioner No. 2 produced the stock register which was found to be written up to 13.9.1974. On an allegation that the accused persons had violated the West Bengal Kerosene Control Order, 1968 in so far as they did not maintain daily accounts up-to-date, the reserve stock was seized and the petitioner No. 2 was taken into custody. Subsequently charge-sheet was submitted and petitioner No. 1 thereafter surrendered in Court. May 16, 1979 was the date fixed for hearing of the charge. The petitioners moved the learned S.D.J.M. for their discharge on the ground inter alia that there was no legal provision for maintaining any register as mentioned in the complaint. The learned Magistrate not having accepted the contention of the petitioners they moved this Court in revision being Criminal Revision Case No. 1639 of 1979. That revision case was eventually disposed of by sending the matter back to the learned Magistrate with a direction to scrutinize the licence and to consider whether there was any condition in the licence requiring the petitioners to maintain an up-to-date stock register or whether there was any requirement under the Kerosene Control Order which required the licensee to maintain an up-to-date stock register.

2. After the matter went back to the court below the learned S.D.J.M., Malda after hearing the parties held by his order dated 24.9.1981 upon an interpretation of Clause 5(a) of the licence that the licensee was required to maintain daily accounts in registers as may be prescribed by the Director. There is no dispute that no form has yet been prescribed by the Director nor has any direction been issued in that behalf in terms of paragraph 12 of the Kerosene Control Order, 1968. The learned S.D.J.M., however, observed that the failure to prescribe a form did not absolve the licensee from maintaining daily accounts. The provision in the licence, according to him, only meant that he was to maintain the accounts in the form prescribed if there was any such form, and if not, in any other manner. But, at any rate, in his view the licensee was required to maintain daily accounts. Upon such as view of the matter, the learned Magistrate overruled the contention of the petitioners and fixed a date for examination of witnesses.

3. The petitioners have again moved this Court and obtained the present Rule.

4. Learned Advocate appearing for the petitioners upon a reference to the terms of the licence in para 5(a) contended that unless a form was prescribed, there could be no liability to maintain daily accounts 'in registers as may be prescribed by the Director'. Secondly, it was contended that the persons proceeded against are one of the partners of the firm which was the dealer and licensee and the manager of the firm. It was contended that in view of the provisions of Section 10 of the Essential Commodities Act, the prosecution was bad insofar as the firm itself was not made a party but a partner and a manager have been made vicariously liable. This, according to him, is not permitted in view of the provisions of Section 10 of the Essential Commodities Act.

5. So far as the second point is concerned, the petitioners seem to stand on a sound footing. The prosecution, as we have already indicated, is directed against only a partner of M/s. Sree Durga Oil Mills and its manager and in the charge that has been framed they have been described as the dealers. This is clearly a misstatement insofar as the dealer was the firm, M/s. Sree Durga Oil Mills. If the allegation in contravention of any of the terms of the licence, the licensee must have to be prosecuted and along with that any other person who may be vicariously liable, Section 10 of the Essential Commodities Act provides if the person contravening an order made under Section 3 is a company, every, person who, at the time the contravention was committed, was in charge of and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The partnership firm, which is the licensee in this case, is a company within the meaning of Section 10 of the Essential Commodities Act. The licensee being the firm the provisions of Section 10 is attracted and the petitioners can be made vicariously liable, if at all, in the event the company itself is alleged to have contravened any of the provisions of the Kerosene Control Order. The learned Advocate for the State contends that this is a matter which may be considered upon the evidence. We do not see any force in this contention for the fact that the company is not being prosecuted is patent on the face of the record and it is also clear that the contravention can be by the company which is the dealer and not the petitioners who have been erroneously charged as dealers in kerosene oil. Therefore the second point urged on behalf of the petitioners that the prosecution is bad in view of the provisions of Section 10 of the Essential Commodities Act is not without substance.

6. As regards the first point, it is true that the terms of Clause 5(a) of the licence indicates as if daily accounts are to be maintained in registers as may be prescribed by the Director. It is conceded on behalf of the State that no such register has yet been prescribed, though unfortunately the control order was, promulgated nearly 15 years ago. But that, in our view, does not absolve the licensee from maintaining daily accounts because the whole spirit of granting the licence is to ensure fair distribution and to exercise proper control over the distribution by the dealer. For the purpose of ensuring such supervision and control, it is only natural that the dealer should maintain daily accounts. He cannot avoid the liability to maintain accounts on the mere plea that no form has yet been prescribed. This apart, Clause 4 of the licence indicates that whenever the licensee makes a sale he shall enter the name and address of his firm, the date of sale and the quantity of kerosene sold on the back of the licence and shall sign such entries. This clause in the licence itself is sufficient to indicate not only that the licensee should maintain daily accounts but that he should make simultaneous entries with every sale. In that view of the matter, we are not inclined to take a view different from what the learned S.D.J.M. has taken on this point. But so far as the other point is concerned, we think that the charge as against the two petitioners without making the company itself a party cannot be sustained. Therefore, on the second point urged on behalf of the petitioners, the proceeding is liable to be quashed.

7. The Rule accordingly succeeds and is made absolute. The proceeding pending before the learned S.D.J.M., Malda is quashed.

Jitender Nath Chadhuri, J.

I agree.


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