STATE OF BIHAR versus BHAGIRATH SHARMA & ANOTHER

STATE OF BIHAR

BHAGIRATH SHARMA & ANOTHER April 9, 1973

[K. K. MATHEW AND 1. D. DUA, JJ,]

/Jilwr Es."•lllial Commodities Act othel' than Foodgrai11s Price, and Stuck.• (Dlspl"Y and Control) Order, 1967, Cls. ,3, 4 and .S-Tyres a11d 1·11be!s if inclucled in Scl1ed1tle,r-Princlple1' of 1nrerpretat1on of penal 111easurt~·.

Constitutlo11 of l11dia, 1950, Art. 134(1)(c)-'Certi/)", scope of.

Jtem I of Schedule I of the· Bihar Essential Commodities Act-other than Foodgruins-Priccs and Stocks (Display and Con!rol) Order, 1967., refer> to •compa,ncnt parts and accessories of automob1lcs·. On the h:1:-11~ thnt thcri.: was failure on the part of the firm of the r~spondents to display the price list and stock position of mot~r tyres in ~heir shup, th!.! respon· dents were prosecuted for the offence of contrnvent1on of els. 3, 4,, and 5 of the Order. The High Court in revision quashed the prosecution on the bilsis that th!! item did not refer to tyres and tubes of motor cars. After the juUgment, an ilcn1 was introduced in Schedule 11 of the Order relating to tyres and tubes of cars etc.

Dismissing the appeal filed with certific11te of fitness under Art. 1.141 l)(c) of the Constitution,

HELD : ( 1) Assuming fr,om brand point of view that tyres and tubes of motor cars may be considered to be covered by the expression "component p<.1rts and accessories of auton1obiles" when construed ip its widest import, comparison of the scheduled items of the Order with 1 he items in the vurious notificatio11s issued by the State Governn1e11t and the Central Government shows that it wns rm intended by the draftsman to extend tne Order. as in force in May !969, when the firm of the m-nondcnts wa!i inspected, to cover tyres and tubes of motor cars. '.941C-FI (2) According to the fundamental principle of criminal jurisprudence which reflects fair play, dealer must know with reasonable certainty und must have fair warning as to what his obligation is, and what act of commission or omission on his part would constitute criminal offence, Unlrss the dealers are in position to know with certainty that 'tyres and tubes of motor cars' are included in the Schedule items, of which the price list nod the stock position ought to be displayed in conspicuous part of their business premises. they cannot be held guilty in criminal court of an offence under the Essential Commodities Act for the violation of any such mandate. In the present case, the Order does not unambi-guously specify 'tyres and tubes of motor cars' as Scheduled item. [941F-Hi

(3) The word 'certify' in Art. 134(1)(c) is strong word postulating the exercise of judicial discretion in determining if the question requiring J.ccision by this Court involves matter of principle or substantial ques-tion of Jaw of great general importance. Such certificate is not to be g.iven as matter of -course on the mere ground that the impugned deci-sion is cons!dered to be erroneous. There must be exceptional or special ci.rcurnstances like infringement of essential principles of justice, or some difficult question of law of great publ:c or private imoortance. It is not to be granted so as to coovert this Court into an ordinary court of fur·

ther appeal. In the present case, after the issue of the Notification incluJ. · .. \ ing 'tyres and tubes of motor cars' in the Schedule to the Order there is no doubt that the Order is comprehensive enough to take within its fold tyres and tubes of motor cars; and the effect ·of the present decision would be confined only to the prosecution of the respondent• There is no material on record suggesting that the decision by this Court of the question posed is likely to govern any case other than the one in hand relating to the acquittal of the respondents. l940E-H]

CRIMINAL APPELLATE JURISDICTION :

Criminal Appeal

No. 7 of 1970.

Appeal by certificate from the judgment and order dated August 14, 1969 of the Patna High Court in Criminal Revision No. 1055 of 1969.

.. P. Jha, for th~ appellant.

Sarjoo Prasad and S. N. Prasad, for the respondents.

The Judgment of the Court was delivered

DuA, J. : The State of Bihar has appealed to this Court with certificate of fitness under Article 134 ( 1) ( c) of the Constitution from the judgment a1l4, order of learned Single Judge of the Patna High Court dated August 14, 1969 quashing, on revision under ss, 439/561-A, Cr.P.C., the prosecution of Bhagirath Sharma and Radhey Shyam Sharma, tlie respondents in this Court, for contravention of clauses 3, 4 and 5 of the Bihar Essential Commodities Act-other than Foodgrains-Prices and Stocks (Display and Control) Order, 1967 (hereinafter called the order), pending in the Court of the Subi-Divisional Magistrate, Gaya.

According to the prosecution case, on receipt of confidential information that the proprietor of M/s. Auto Spare, Law Road, Gaya, was not properly maintaining the account of Motor Tyres, with the ulterior motive of withholding the supply of the said article to the genuine customers, Shri Ram Nivas Singh, Market-ing Officer, Gaya, had, along with two supply Insoectors, made surprise inspection of the firm on May 22, 1969 and f0und certain irregularities. One oi those irregularities was, the failure ol the firm to display the price list and stock position of Motor Tyres anywhere in their shop, in contravention of clause 4 of the order. On search by the said Marketing Officer, huge stock of Motor Tyres of different varieties numbering 487 were actually found stored in the 1nner portion of the shop. In view of the irregularities discovered by the Marketing Officer and the seizure of the stock of Motor Tyres, it was felt that prima facie case had been made out against the partners of the said firm, Shri Bhagi-rath Sharma and Shri Radhev Shvam Sharma, resoondents in this Court. for contravention of clauses 3. 4 and 5 of the Order. Complaint to that effect was accordingly made in the Court of

the Sub-Divisional Magistrate on May 23, 1969. On the same date, the Sub-Divisional Officer, Sadar, Gaya after persuing the report of [1]the Marketing Officer, took cognizance of the ca:;e under s. 7 of the Essential Commodities Act and tramforred it for disposal to the Court of Shri N. N. Singh, Munsif Magistrate, Ist Class, Gaya. It is against this order of the Magistrate that the respondents in this Court approached the Patna High Court under ss. 439/561-A, Cr.P.C.

learned Single Judge of the High Court after referring to the two relevant items (Nos. 1 & 5) of Schedule 1 appended to the Order felt bound by an earlier Single Bench decision dated April 20, 1969 of that High Court in Criminal Misc. Case No. 14 79 of 1968 holding that item No. 1 of Schedule I could not be assumed to cover the commodities like Motor Tyres and Motor Tubes though he himself thought th~t he would have taken different view, had the matter been res integra. Item No. 5 even according to the learned Single Judge's own view could not cover the Motor Tyres and Motor Tubes. Being, however, bound 1:t< the earlier decision, he held the prosecution of the proprietors of the firm to be misconceived. The prosecution was accordingly quashed.

In this Court, our attention has been drawn to item No. I in Schedule I of the Order. This item reads :-

" 1. Component parts and accessories of auto-mobiles."

It is contended that this item must cover 'Tyres and Tubes of Motor Cars and Motor Cycles'. According to the argument forcibly pressed on behalf of the State of Bihar; Tyres anti Tubes of automobiles are their essential component parts and the earlier Single Bench decision of the Patna High Court (in Criminal Misc. Case No. 1479/1958) followed as binding precedent in the present case should be held to have been wrongly decided. The other item to which reference was made by the High Court in the impu!Jned judgment is item No. 5 which reads:-

"5. Cycle tyres and tu)ks, (including cycle rickshaw , tyres and tubes)."

The submission that this item should be held to cover Motor Tyres and Motor Tubes was rejected by the High Court .. Before us, however, the State has not placed any reliance on item No.5 though on behalf of the respondents it has been suggested that where "Tyres and Tubes" are intended to be included as an item in the schedule, they have actually been expressly so stated. The respondent has also brought to our notice Gazette Notification

(No. G.S.R. 82) dated September 18, 1970 published in -the Bihar Government Gazette (Extraordinary) dated September 22, 1970 according to which four items were added after item No. 9 in

. . Schedule II of the Order. The new item No. 11 reads :-

11. Tyres and tubes of cars, buses, jeeps, vans, · trucks, automobiles of any category whatsoever, tractors and tractor-trollies."

Quite clearly after this Notification there can be no doubt whatsoever that t~ Order is comprehensive enough to take within its fold Tyres and Tubes of cars as also of 'automoblies of any category whatsoever'. The effect of the decision of the present case would, therefore, seem, prima facie, to be confined only to the fate of the prosecution initiated against the respondents. It has not been stated or even suggested at the Bar if any (and if so, how many) pending cases of similar nature are likely to be gover-ned by the decision of tliis Court. Unfortunately, even the High · Court has made laconic order on oral request, merely stating :

"IT IS CERTIFIED

That thiS case fulfils the .requirement of Article 134 ( 1) ( c) of the Constitution of India and is fit for appeal to the Supreme Court."

without showing on its face what substantial question of law or principle of great importance was involved justifying the grant of Certificate under Article 134 (1) (c). The word "certify" in this Article, as often observed by this Court, is strong· word postulating the exercise of judicial discretion in determining if the question requiring· decision by this Court involves matter of principle or a· substantial question of law of great general impor- . tailce. Such certificate jg.not to be gjven·as matter of course on the mere ground that the impugned decision is considred to l:k: erroneous. · There must be·-exceptional or special circumstances like infringement of essential principles of justice or some difficult question of law of great public or private importance. It is not to be granted so as to convert this Court into an ordinary court of further. appeal. We do not find any material on the record suggesting that the decision by this Court of the question posed is likely to govern any case .other than the one in hand relating to the acquittal of the respondents. It apoears that the attention of the High Court was not drawn to the Bihar Government Noti-fication dated September 18, 1970, by means of which the defect or lacuna pointed out by the High Court was removed for future cases. Had that Notification been brought to the notice of the High Court, one would have eXpccted it to state in the order grant-.ing the Certificate the reasons impelling it to do so.

Now in the judgement in Criminal Misc. Case No. 1479/68, reference was made to Notification dated January 11, 1968 (No. S.C. 218) issued by !!he Ministry of Commerce, Government ~f India in which Types and Tubes of Scooters were exoressly men-Uo.ned as essential commodities distinct from the component parts and accessories of automobiles. Reference in that judgment was ll also ma_9e to Notification dated August 22, 1968 (No. S.Q. 2878) issued by the Central Government in which similarly Tyres •tnd Tub~ of Cars, etc. were specifically mentioµed as essential commodities, and to still later Notification by the Central Govenrunent dated January 3, 1969 (No. S.0. 85) in which Tyres and Tubes of Cars were mentioned in manner almost similar to the one found in the Bihar Government Gazette Noti-lkation No. G.S.R. 82 dated September 18, 1970.

In this background even assuming that from broad point of view, 'Tyres and Tubes of Motor Cars' may be considered to be covered by the general expression "Component parts and accessories of automobiles" when construed in its widest import, on comparison of the scheduled items of the Order with the items in the other Notification mentioned and considered in the earlier decision of the High Court (in Cr!. Misc. Case No. 1479/68), can it not be reasonably and rationally assumed that it was not intended by the draftsman to extend the Order to 'Tyres and Tubes of Motor Cars? In our view, the drafting precedents furnished by the other Notifications considered in the earlier decision of the High Court (in Cd.Misc.Case No. 1470/68) do indicate that the draftman did not intend the scheduled items in the Order as in force in May, 1969 to cover 'Tyres and Tubes of Motor Cars'.

But independently of this aspect the question may also be considered from another point of view, viz., if the legal mandate contained in the Order is expressed with such certainly and clarity as to give reasonably precise and adequate guidance to those who want to be law-abiding. In other words, does the Order lay down an ascertainable standard of guilt by unambiguously specifying the Tyres and Tubes of Motor Cars as Scheduled item. We do not think it does unless the dealers are in position to know with certainly that the items of Tyres and Tubes of Motor Cars are included in the scheduled items of which the price list and the stock position are to be displayed in con-spicuous part of their business premises, in our opinion, they cannot br. held guilty in criminal court of an offence under the Essential Commodities Act for violation of any such mandate. According to the fundamental principle o.f our criminal jurispru-dence, which reflects fair play, the dealer must know with reason-able certainty and must have fair warning as to what his obligation is and what act of commission or omission on his part

would constitute criminal offence before he can be called upon to answer charge and be liable to be convicted in criminal court for any violation of legal mandate. This approach is in conformity with the general requirement that the act or default should be associated with legally blameworthy condition of mind. On the view that we have taken, the High Court seems to us to have been fully justified in recording the respondents' acquittal ll and we see no cogent ground for disagreeing with it.

1he appeal accordingly fails and is dismissed.

Appeal dismissed.