PRAKASH BABU RAGHUVANSHIversusSTATE OF MADHYA PRADESH

A                     PRAKASH BABU RAGHUV ANSHI
                                        v.
                       STATE OF MAD HYA PRADESH

                             SEPTEMBER 13, 2004

B                [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

         Essential Commodities Act, 1955-Sections 2(c), 2(cc), 3 and 7-
    Conviction by Trial Court under Section 3 read with Section 7(JJ(a)(ii)-
    Confirmed by High Court-On appeal-Held: Neither before Trial Court nor
    the High Court 'order' under Section 3, whose contravention was alleged
c   was placed on record-This was essential to bring application under Section
    7-Madhya Pradesh Sarvajanik Purti Vitaran Scheme, 1991.

         Appellant-accused was convicted by Trial Court for an offence in
    terms of section 3 read with Section 7(1)(a)(ii) of the Essential
    Commodities Act, 1995. Conviction having been upheld by High Court,
D   the present appeal was filed.

         Appellant contended that for attracting Section 7 of the Act, the
    primary requirement was that there must be violation of an order. It
    was further contended that prosecution was for violation of Madhya
E   Pradesh Sarvajanik Pur.ti Vitaran Scheme, 1991, and as scheme did not
    amount to an 'order' under Section 3 of the Act, Section 7 thereof was
    not attracted. Respondent-state contended that this plea was not raised
    before the courts below and could not be allowed as it needed factual
    adjudication.

F       Disposing of the appeal and remitting the matter to High Court,
    the Court

          HELD :I.I. Though there is substance in the plea raised by State,
    yet, for bringing an application under SectiOn 7 of the Act, the P.ssential
    requirement is an order, the violation of which is alleged. Unfortunately,
G   neither before the Trial Court nor the High Court, any effort was made
    to place on record the order the violation of which was alleged.
          [391-H; 392-A)

        Madhya Pradesh Ration Vikreta Sangh Society and Ors. v. State of
    Madhya Pradesh and Anr., [1981) 4 SCC 535, relied on.
H
                                       390
            P.B. RAGHUVANSHI v. STATE [PASAYAT, J.]                       391

     2. Matter is remitted to the High Court to hear it afresh. The               A
parties shall be permitted to place materials in support of their respective
stands. It would be incumbent upon the State to file materials to show
as to which 'order' was violated. [392-E]

     CRIMINAL APPELLATE JURISQICTION                   Criminal Appeal No.
IOll of 2004.
                              \
                                                                                  B

     From the Judgment and Order dated 20.11.2003 of the Madhya Pradesh
High Court in Crl. A. No. 455 of 1997.

     S.B. Upadhyay and Ms. Kumud Lata Das for the Appellant.                      c
     Vishwajit Singh and Ms. Vibha Datta Makhija Respondent.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. : Leave granted.                                          D
     An interesting point has been raised in the appeal, which.unfortunately
does not appear to have been canvassed before the courts below. The
appellant was convicted for allegedly committing offence in terms of Section
3 read with Section 7(l)(a)(ii) of the Essential Commodities Act, 1955 (in
short 'the Act'). He was found guilty by the learned Sessions Judge, Vidisha      E
in Sessions Case No. 11 of 1996. The conviction and
the sentence of one years rigorous imprisonment and a fine of Rs. 2,000 as
had been imposed, came to be confirmed by a learned Single Judge of the
High Court of Madhya Pradesh Gwalior Bench by the impugned judgment.
                                                                                  F
      Mr. S.B. Upadhyay, learned counsel appearing for the appellant submitted
that for attracting Section-7 of the Act, the primary requirement is that there
must be violation of an order. What the prosecution seems to have relied upon
is Madhya Pradesh Sarvajanik Purti Vitaran Scheme, 1991 (in short the
'Scheme'). According to him, the Scheme cannot be equated with an order,
as required under the Act. Learned counsel for the respondent-State, on the       G
other hand, submitted that such a plea which essentially woul4-need factual
adjudication, was not canvassed before either the Trial Court or the High
Court.

      Though there is substance in the plea raised by learned counsel for the     H
    392                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   State, yet, for bringing an application under Section 7 of the Act, the essential
    requirement is an order, the violation of which is alleged. Unfortunately,
    neither before the Trial Court nor the High Court, any effort was made to
    place on record the order the violation of which was
    alleged. In Madhya Pradesh Ration Vikreta Sangh Society and Ors. v.
    State of Madhya Pradesh and Anr., [1981] 4 SCC 535, it was observed that
B   a Scheme like the one at hand is framed under Article 162 of the Constitution
    of India, 1950 (in short 'the Constitution'). That being so, it was necessary
    for the prosecution to place on record the "order" which, according to it, was
    the foundation for taking action against the accused-appellant.

C         Section 7 refers to contravention of any order made under Section 3.
    It is essential for bringing in application of Section 7 to show that some order
    has been made under Section 3 and the order has been contravened. Section
    3 deals with powers to control production, supply, distribution etc. of
    essential commodities. Exercise of such powers, can be done by "order".
    According to Section 2(c) "notified order" means an order notified in the
D   official Gazette, and Section (cc) provides that "order" includes a direction
    issued thereunder.

          In the circumstances, without expressing any opinion on .the merits of
    the case, we remit the matter to the High Court to hear the matter afresh. The
E   parties shall be permitted to place materials in support of their respective
    stands. It would be· incumbent upon the State to file material to show as to
    which "order" was violated. If the document in question is placed before the
    High Court, it goes without saying that the issue shall be examined with
    reference thereto and necessary adjudication shall be done.

F         We are told that the accused-appellant has been in custody for nearly
    four months. The order of bail granted by this Court shall continue till the
    fresh adjudication is done by the High Court.

         We make it clear that by giving this direction, no opinion about his
G   culpability or otherwise is expressed by us.

          The appeal is disposed of accordingly.

    v.s.s.                                                     Appeal disposed of.