Mukat Behari Vs. the State (Delhi Administration) - Court Judgment

Excerpt:
a petition was filed seeking to challenge the prosecution under section 7 of the essential commodities act - the licensee of the petitioner was renewed by the department and let him off with a warning - it was held that the departmental proceedings were independent of the criminal prosecution and thereforee in the absence of a clear exoneration, criminal proceedings could continue - it was also held that there would be no interference with the proceedings. - - (5) the assertion of the learned counsel for the petitioner which was raised before the learned metropolitan magistrate as also in revision before the learned additional sessions judge and also being raised before this court is that the aforesaid violation was, in fact, one with which the department of food and supplies alone was concerned and that when that department stood satisfied by the explanationn given by the petitioner and ultimately renewed the licensee, there was left nothing in the form of violation of the order which had been dissued under section 3 of the act and consequently the complaint filed by the department against the petitioner no longer remained alive and came to an end and so the learned magistrate was not competent to continue with the proceedings in the complaint or to frame the charge therein against the pettioner. the learned counsel for the petitioner has pointed out that the initial illegal transaction of purchase and sale of the aforesaid 650 tins of vanaspati ghee bad been legalised by the licensing authority in its order dated 26-5.1982 retrospectively by the renewal of the licensee and so any further action by way of prosecution of the petitioner in a criminal court stands barred inasmuch as the licensing authority no longer feels aggrieved by the transaction of the purchase and sale of vanaspati ghee during the period when there was no valid licensee with the petitioner. the state 1985 com cases 342 (hc) but the perusal of this authority clearly goes to show that this is of no avail to the petitioner inasmuch as in the facts of that authority the department felt satisfied that there was no contravention of the order issued under section 3 of the act or the licensee issued there under. amritsar and that the said firm was a sham one and had filed false returns for the assessment years 1960-61 onwards to 1969-70 but it was held eventually by the income tax appellate tribunal on appraisal of the material on the record that janak rani was a partner in the said firm and that the said firm was also genuine and who consequently set aside the order of the income tax officer who bad cancelled the registration of the firm holding it as one which not genuine. ' (7) the aforesaid observations of the supreme court would clearly go to show that that was a case wherein the assessed firm was held to be a genuine film and smt. as already pointed out above the case in hand is clearly distinguishable from both the authorities referred to above.jagdish chandra, j. (1) by means of this petition brought under section 482 of the code of criminal procedure, 1973 the petitioner mukat behari seeks the quashing of the registration of the criminal case against him as also the framing of the charge against him therein asserting that the same amount to abuse of process of law. (2) the petitioner is running his business under the name and style of 'm/s gupta oil traders' at shop nos. 9 and 10, ram dwara road, anaj mandi, paharganj, new delhi, as the sole proprietor thereof. this concern was the holder of edible oil licensee no. w/250 which was valid only uptil 20.1.1982 and was not renewed thereafter. according to the allegations of the prosecution this concern had purchased 650 tins of vanspati ghee from modi industries limited and sold the same during the period from 21.1.1982 to 29.1.1982 and this violation was detected on inspection carried out on 4.2.1982 by the officials of enforcement staff of the food and supplies department. this violation had taken place due to the fact that for the aforesaid period there was no valid licensee with the petitioner. (3) a case fir 129 of 1982 was registered against the petitioner under section 7 of the essential commodities act, 1955 (in short the act) at police station paharganj and the charge was framed against the petitioner on 16.4.1986 by shri d.s. bawa metropolitan magistrate, delhi. (4) the quashing of the aforesaid complaint and the charge framed therein against the petitioner is sought for the reason that the assistant commissioner (c), food and supplies, delhi, vide his order dated 26.5.1982 had renewed the licensee of the petitioner with a warning and had also forfeited a sum of rs. 100.00 out of the security deposited by the petitioner with the department. (5) the assertion of the learned counsel for the petitioner which was raised before the learned metropolitan magistrate as also in revision before the learned additional sessions judge and also being raised before this court is that the aforesaid violation was, in fact, one with which the department of food and supplies alone was concerned and that when that department stood satisfied by the explanationn given by the petitioner and ultimately renewed the licensee, there was left nothing in the form of violation of the order which had been dissued under section 3 of the act and consequently the complaint filed by the department against the petitioner no longer remained alive and came to an end and so the learned magistrate was not competent to continue with the proceedings in the complaint or to frame the charge therein against the pettioner. this plea did not find favor with either of the two courts below and is also strenuously resisted and challenged by mr. b.t. singh learned counsel for the state. the order in question is dated 29.4.1977 issued by the administrator of the union territory of delhi under section 3 of the act and c1. 9 thereof provides as follows : 'suspension/cancellation of licensee and forfeiture of security : (1) if the licensee or his agent or servant or any person acting on his behalf contravenes any of the terms and conditions of the license or any provision of this order, then without prejudice to any other action that may be taken against him, the licensing authority may. by order in writing, suspend or cancel his licensee and/or forfeit the whole or a part of the security deposited by him. provided that no order under this clause shall be made unless the licensee has been given an opportunity of being heard against the proposed suspension or cancellation or forfeiture of security. provided further where it is felt to be necessary and expedient to suspend the licensee before giving the licensee an opportunity of stating his case, the licensee may bs suspended by order in writing by the licensing authority not below the rank of assistant commissioner, food and supplies, subject to the condition that such opportunity is given to the licensee before the expiry of three months from the date of such suspension (2) notwithstanding any thing contained in this clause where a licensee is convicted by a court of law for breach of the terms and conditions of the licensee or contravention of any provisions of this order or any other law controlling prices of edible oils for the time being in force the licensing authority by order in writing, cancel his licensee. provided that no such order shall be passed until the appeal, if any, filed against such conviction is dismissal and where no such appeal is filed until the period of limitation for filing an appeal has expired (3) the licensee shall, if the amount of security at any time falls short of the amount specified in clause 7, deposit further security to make up the deficiency on being required by the licensing authority to do so; and in case any amount of security is forfeited under sub-clause (1), he shall deposit the forfeited amount within fifteen days of the receipt of the order forfeiting the security.'(6) it would be noticed that in sub-clause (1) of clause 9 the proceedings before the department for contravention of any of the terms and conditions of the licensee or any provisions of this order are separate from and independent of a criminal case filed before a court and which is punishable under section 7 of the act and this interpretation appears to be unmistakably deal from the use of the words 'without prejudice to any other action that may be taken against him, the licensing authority, may, by order in writing suspend or cancel his licensee and/or forfeit the whole or a part of the security deposited by him'. so, two actions were possible against the petitioner and one was which could be taken by the licensing authority as referred to above and the other in a court of law by way of a complaint against him which is punishable under section 7 of the act. the learned magistrate as also the learned additional sessions judge who passed the orders dated 31.31986 and 22.8.1986 respectively against the petitioner, appear to be right in passing the same as the order of the licensing authority renewing the licensee of the petitioner did not and could not put an end to the criminal case filed against the petitioner by the department. the matter would have been different if the petitioner had been completely exonerated in respect of the aforesaid violation by the licensing authority in its order dated 26.5.1982 whereby the petitioner's licensee was renewed, in which case the alleged offence would have come to an end being non-existent for which reason the criminal prosecution under the act and punishable under section 7 thereof could no longer be continued. but that is not the case with the petitioner as the order dated 26 5.1982 by the assistant commissioner (c), food and supplies, delhi did not exonerate the petitioner in respect of the aforesaid contravention for which he imposed a forfeiture of rs. 100.00 upon him which amount was deducted from his security deposit as licensee. the learned counsel for the petitioner has pointed out that the initial illegal transaction of purchase and sale of the aforesaid 650 tins of vanaspati ghee bad been legalised by the licensing authority in its order dated 26-5.1982 retrospectively by the renewal of the licensee and so any further action by way of prosecution of the petitioner in a criminal court stands barred inasmuch as the licensing authority no longer feels aggrieved by the transaction of the purchase and sale of vanaspati ghee during the period when there was no valid licensee with the petitioner. for this proposition of law the learned counsel for the petitioner relies upon an authority of this very high court reported as ramesh kumar v. the state 1985 com cases 342 (hc) but the perusal of this authority clearly goes to show that this is of no avail to the petitioner inasmuch as in the facts of that authority the department felt satisfied that there was no contravention of the order issued under section 3 of the act or the licensee issued there under. so, it was a case of total exoneration of a licensee at the bands of the licensing authority and is, thus, distinguishable from the case in hand in which the licensing authority had not exonerated the petitioner but had found him guilty for the violation and for the renewal of the licensee forfeiture of a part of the security amount to the tune of rs. 100.00 was ordered. the aforesaid authority of this high court had taken note of supreme court authority reported as uttam chand and another v. i.t.o. control circle amritsar : [1982]133itr909(sc) wherein the allegation by the department was that one smt. janak rani was not a partner in the firm known as m/s. handa and chopra. amritsar and that the said firm was a sham one and had filed false returns for the assessment years 1960-61 onwards to 1969-70 but it was held eventually by the income tax appellate tribunal on appraisal of the material on the record that janak rani was a partner in the said firm and that the said firm was also genuine and who consequently set aside the order of the income tax officer who bad cancelled the registration of the firm holding it as one which not genuine. a single judge of the punjab and haryana high court dismissed the revision petition observing inter alias that the proceedings before the magistrate were entirely independent of the finding of the income tax appellate tribunal and that the findings of the income tax appellate tribunal are not binding on the criminal court and thus could not operate as a bar to the prosecution of an assessed. the supreme court after granting special leave to appeal against that aforesaid order of the punjab and haryana high court quashed the proceedings pending before the magistrate with the following observations : 'heardcounsel, special leave granted. in view of the finding recorded by the income-tax appellate tribunal that it was at clear on the appraisal of the entire material on the record that shrimati janak rani was a partner of the assessed-firm and that the firm was a genuine firm, we do not see how the assessed can be prosecuted for filing false returns. we, accordingly, allow this appeal and quash prosecution.'(7) the aforesaid observations of the supreme court would clearly go to show that that was a case wherein the assessed firm was held to be a genuine film and smt. janak rani a genuine partner thereof and thus that was a case of clear exoneration of the alleged violation of the firm being a sham one and janak rani a sham partner therein and it was under those circumstances that the supreme court allowed the appeal and quashed the prosecution. as already pointed out above the case in hand is clearly distinguishable from both the authorities referred to above. (8) no other authority was cited at the bar by either side and in view of the above discussion, the criminal proceedings pending before the learned magistrate shri d.s. bawa remain still alive and can continue. (9) at the instance of mr. k.b. andley learned counsel for the petitioner it is, however, made clear that if the department is entitled under the law to withdraw the aforesaid complaint against the petitioner, this order of the court shall in no way be construed to stand in the way of that withdrawal.