Hon'ble Vivek Kumar Birla,J.
Petitioners, who are three in number, have approached this Court with the following relief;
I. Issue a writ, order or direction in the nature of certiorari quashing the first information report dated 5.6.2014 under Section 3/7 of the Essential Commodities Act, 1955 registered at P.S. Hata, District Kushi Nagar registered as Crime No. 697 of 2014.
II. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to arrest the petitioners in Case Crime No. 697 of 2014 under Section 3/7 of the Essential Commodities Act, 1955 registered at P.S. Hata, District Kushi Nagar.
III. Any other suitable order or direction, which this Hon'ble Court may deem fit and proper, be also passed in favour of the petitioners.
IV. To allow the writ petition with cost.
Brief background of the case as is reflected from the pleadings set-out in the writ petition is that the petitioner no.1 is the Director of The Oudh Sugar Mills Ltd., Hargaon, District Sitapur and the petitioner no. 2 is the Executive President of New India Sugar Mills, which is a unit of the Oudh Sugar Mills Limited, Hargaon District Sitapur and the petitioner no.3 is Vice President (Finance) of New India Sugar Mills which is a unit of the Oudh Sugar Mills Limited, Hargaon, District Sitapur. The New India Sugar Mills is a Unit of the Oudh Sugar Mills Ltd., Hargaon, District Sitapur. The petitioner submit that the New India Sugar Mills is a new sugar factory and is engaged in manufacturing of sugar through vacuum pan process and is also having a co-generation plant of 25 MW in its factory situated at village Dhadha Bujurg, Tehsil and police station Hata, District Kushi Nagar. The New India Sugar Mill has started its full-fledged crushing operation in crushing season 2008-2009.
It has been contended that the first information report has been lodged mentioning therein that the New India Sugar Mills started its crushing operation for the crushing season 2013-2014 on 6.12.2013 and completed its crushing on 6.3.2014 and has crushed a cane quantity of 70.44 Lac Quintals. The cane price at the rate of Rs. 280/- per quintal of the crushed quantity of sugar case comes to Rs.19505.88 lacs and at the rate of Rs. 260/- per quintal comes to Rs.18096.44 Lacs. As against the aforesaid figure the sugar mill has made the payment of Rs.11534.64 Lacs as on 29.5.2014 despite the fact that 53 days have elapsed from the date of closing of sugar mill in the crushing season 2013-2014 and still an amount of Rs.7971.24 Lacs is outstanding. According to the First Information Report due to outstanding cane dues there is an annoyance amongst the cane growers. It is alleged that there is a provision in the Uttar Pradesh Sugarcane (Regulation of supply and purchase) Act 1953, Uttar Pradesh Sugarcane (Regulation of supply and purchase) Rules 1954 and in Sugarcane Control Order 1966 for making full payment of cane price immediately after 14 days from the date of supply of sugarcane. It is further alleged that the Sugar Mill is manufacturing sugar through vacuum pan process and as per condition no.4 of the License granted it is mandatory upon the sugar mill to comply the provisions of Uttar Pradesh Sugarcane (Regulation of supply and purchase) Act 1953, Uttar Pradesh Sugarcane (Regulation of supply and purchase) Rules 1954 and Sugarcane Control Order 1966 and since the Sugar Mill has violated the provisions of the aforesaid provisions therefore the petitioners are responsible for the offence of Section-3/7 of the Essential Commodities Act 1955 as per Clause-8(4) of Uttar Pradesh Vacuum Pan Sugar Factories Licensing Order 1969.
Petitioners are submitting before this Court that from a bare reading of the first information report no cognizable offence is made out against the petitioners and petitioners are victim of false implication and the amount in question that is due qua the same there is state apparatus under which the said amount in question can be recovered, as such, there has been no justification for lodging of the first information report under Section 3/7 of the Essential Commodities Act, 1955 at police station Hata, district Kushinagar.
Shri Gopal S. Chaturvedi, Senior Advocate appearing with Shri Mukesh Prasad, Advocate and Shri Sudeep Kumar, Advocate submitted before this Court that in the facts of the case no cognizable offence whatsoever worth name is disclosed and invoking of criminal forum is nothing but misuser of the authority and the U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 read with the U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954 is a self contained, wherein full fledged mechanism has been provided for on account of non-payment of cane dues and in the event of breach being there provision of filing complaint has been there, and once such is the factual situation that there is specific provisions holding the field then by no stretch of imagination first information report could have been lodged, as has been done in the present case, accordingly, entire proceedings are nothing but misuser of criminal forum and, as such, same are liable to be quashed.
The request that has been made on behalf of petitioners has been resisted by Government Advocate Shri Akhilesh Singh by contending that in the facts of the case a clear cut offence under Section 3/7 of Essential Commodities Act, 1955 is made out, in view of this, this Court should not at all interfere in the matter and he has also proceeded to mention that sugar mills are not at all ensuring timely payment and poor sugar cane farmers are made to suffer and even in Public Interest Litigation No. 29523 of 2014 this Court has proceeded to pass an order clearly mentioning therein that on reopening of the Court after the summer recess on 1st of July, 2014 the Court would be apprised of the payment of outstanding dues together with interest and the outstanding position both in respect of the previous year 2012-13 and the current year 2013-14 and, in view of this, it is being contended that once a clear cut offence is made out, this Court should not come to rescue or reprieve of the petitioners.
In order to appreciate the arguments that have been so advanced as to whether in the facts of the case cognizable offence is disclosed or not, this Court proceeds to examine the relevant statutory provisions holding the field for running of sugar mills, sugar and sugarcane.
"Sugarcane" is an essential commodity as defined in Section 2(b) of the Essential Commodities Act, 1955. In the leading decision Tika Ramji v. State of Uttar Pradesh & Ors., (1956) 1 SCR 393 : AIR 1956 SC 676, Apex Court held that the Essential Commodities Act included within the definition of "essential commodity" "food-crops" which would include sugarcane. Again, in A.K. Jain v. Union of India & Ors. (1970) 1 SCR 673 : AIR 1970 SC 267, following Tika Ramji, Apex Court held that Section 2 of the Essential Commodities Act provided that sugarcane would be an "essential commodity" within the meaning of the Act and hence cultivation and sale of sugarcane could be regulated by law.
The Industries (Development and Regulation) Act, 1951 declared certain industries as controlled industries. Section 2 of the said Act enacts that it is expedient in the public interest that the Union should take under its control, the industries specified in the First Schedule. The First Schedule, inter alia, included "sugar" industry as one of the controlled industries.
In M/s Triveni Engineering Works Ltd. & Anr. v. Union of India & Ors., AIR 1996 All 420, this Court held that the sugar industry is a controlled industry. The Government is exercising control on the sugarcane at all levels, namely; of production, distribution, pricing as also on the production and marketing of finished product of sugar.
Section 3 of the Essential Commodities Act empowers the Central Government to issue order providing for regulating or prohibiting the production, supply and distribution of any essential commodity if it is of the opinion that it is necessary or expedient so to do for maintaining or increasing supply of any essential commodity or in securing equitable distribution and availability at fair price. In exercise of the said power, the Central Government framed the Sugarcane (Control) Order, 1966. Clause 2 thereof defines important terms such as "factory", "khandsari sugar", "khandsari unit", "crusher", "power crusher", "producer of khandsari sugar", "reserved area", etc., whereas Clause 3 enable the Central Government to fix minimum price of sugarcane payable by producer of sugar.
Sub-clause (3) and Sub-clause (3-A) of Clause 3 obligates the producer of sugarcane when he purchases any sugarcane from the grower of sugarcane or from a sugarcane grower's cooperative society to ensure payment of the price of the cane within 14 days of the date of delivery and also talks of interest on delayed payment. Sub-clause (3) and Sub-clause (3-A) of Clause 3 are extracted below;
"(3) Where a producer of sugar purchases any sugarcane from a grower of sugarcane or from a sugarcane growers' co-operative society, the producer shall, unless there is an agreement in writing to the contrary between the parties, pay within fourteen days from the date of delivery of the sugarcane to the seller or tender to him the price of the cane sold at the rate agreed to between the producer and the sugarcane grower or the sugarcane growers' co-operative society or that fixed under sub-clause (1), as the case may be, either at the gate of the factory or at the cane collection centre or transfer or deposit the necessary amount in the bank account of the seller or the co-operative society, as the case may be.
(3-A) Where a producer of sugar or his agent fails to make payment for the sugarcane purchased within 14 days of the date of delivery, he shall pay interest on the amount due at the rate of 15 per cent per annum for the period of such delay beyond 14 days. Where payment of interest on delayed payment is made to a cane growers' society, the society shall pass on the interest to the cane growers concerned after deducting administrative charges, if any, permitted by the rules of the said society."
Under this very order, the way and manner of effectuating payment to sugarcane grower has also been provided for and same also provides for mechanism for recovery of the said amount towards price of sugarcane. Relevant provisions are sub-clause (4) to (14) of Clause 3 of U.P. Sugarcane Control Order is extracted below:
"(4.) Where sugarcane is purchased through an agent, the producer or the agent shall pay or tender payment of such price within the period and in the manner aforesaid and if neither of them has so paid or tendered payment, each of them shall be deemed to have contravened the provisions of this clause.
(5.) At the time of payment at the gate of the factory or at the cane collection centre, receipts, if any, given by the purchaser shall be surrendered by the cane grower or cooperative society.
(6.) Where payment has been made by transfer or deposit of the amount to the bank account of the seller or the cooperative society, as the case may be, the receipt given by the purchaser, if any, to the grower, or the cooperative society, if not returned to the purchaser, shall become invalid.
(7.) In case, the price of the sugarcane remains unpaid on the last day of the sugar year in which cane supply was made to the factory on account of the suppliers of cane not coming forward with their claims therefor, it shall be deposited by the producer of the sugar with the collector of the district in which the factory is situated, within three months of the close of the sugar year. The Collector shall pay, out of the amount so deposited, all claims, considered payable by him and preferred before him within 3 years of the close of the sugar year in which the cane was supplied to the factory. The amount still remaining un-disbursed with the Collector, after meeting the claims from the suppliers, shall be credited by him to the Consolidated Fund of the State, immediately after the expiry of the time limit of three years within which claims therefor could be preferred by the suppliers. The State Government shall, as far as possible, utilise such amounts, for development of sugarcane in the State.] (8.) Where any producer of sugar or his agent has defaulted in furnishing information under clause 9 of this Order or has defaulted in paying the whole or any part of the price of sugarcane to a grower of sugarcane or a sugarcane growers' cooperative society within fourteen days from the date of delivery of sugarcane, or where there is an agreement in writing between the parties for payment of price within a specified time and any producer or his agent has defaulted in making payment within the agreed time specified therein, the Central Government or an officer authorized by the Central Government in this behalf or the State Government or an officer authorized by the State Government in this behalf may either on the basis of information made available by the producer of sugar or his agent or on the basis of claims, if any, made to it or him regarding non-payment of prices or arrears thereof, by the concerned grower of sugarcane or the sugarcane growers' cooperative society, as the case may be, or on the basis of such enquiry that it or he deems fit, shall forward to the Collector of the district in which the factory is located, a certificate specifying the amount of price of sugarcane and interest due thereon from the producer of sugar or his agent for its recovery as arrears of land revenue.
(9.) The Collector, on receipt of such certificate, shall proceed to recover from such producer of sugar or his agent the amount specified therein as if it were arrears of land revenue.
(10.) After effecting the recovery, the Collector shall intimate to the concerned growers of the sugarcane or the concerned sugarcane growers' cooperative societies through a public notice to submit their claims in such a manner as he considers appropriate within thirty days:
Provided that the Collector may, for the reasons to be recorded in writing, allow the submission of claims after the period so specified if he is satisfied that there was sufficient cause for not submitting such claim earlier.
(11.) If the amount recovered is less than the amount specified in the certificate under sub-clause (8), the Collector shall distribute the amount so recovered among the concerned growers of the sugarcane or the concerned sugarcane growers cooperatives in proportion to the ratio determined by the Collector on the basis of the sugarcane supplied by the concerned growers of sugarcane or the sugarcane growers' cooperative society, as the case may be.
(12.) If the amount recovered and distributed under sub-clause (11) is less than the amount specified in the certificate under sub-clause (8), the Collector shall proceed to recover the remaining amount, as if it were arrears of land revenue till the full amount is recovered and distributed to satisfy the remaining claims.
(13.) If the amount is given to the concerned sugarcane growers cooperative societies, it shall distribute the amount through cheque/draft/or any other recognized banking instrument on any scheduled bank to the concerned sugarcane growers within ten days of the receipt of the amount from the Collector.
(14.) If the concerned sugarcane grower or the concerned sugarcane growers cooperative society do not come forward to claim or collect the amount so recovered by the Collector within three years from the date of the public notice referred to in sub-clause (10), the unclaimed amount shall be deposited by the Collector in the Consolidated Fund of the State."
In order to regulates the production of sugar by vacuum pan sugar factories the Central Government under Clause 3 of the Sugar (Control) Order, 1966 has delegated its authority to regulate production of sugar by vacuum pan sugar factories to the State Government under Clause 15 of the said order by the Ministry of Food and Agriculture, Community Development and Co-operative, Department of Food, Government of India and pursuant thereto the State Government for regulating production of sugar by vacuum pan sugar factories has proceeded to issue order known as U.P. Vacuum Pan Sugar Factories Licensing Order, 1969 and therein Clause 3 deals with the grant of license, Clause 4 deals with the period for which licenses to be issued, Clause 5 deals with the issue of duplicate license, Clause 6 deals with the conditions for suspension or cancellation of license and Clause 8 specifically provided that if a person contravenes any of the provisions of this order or conditions of the license he shall be punishable in accordance with the provisions of the Essential Commodities Act, 1955.
M/s. New India Sugar Mill is a unit of Oudh Sugar Mills Ltd., Hargaon, Sitapur and it has obtained license for engaging itself in manufacturing of sugar through vacuum pan process and the license in question that has been so issued clearly proceeds to mention that said license in question has been issued subject to the terms and conditions mentioned therein and subject to the terms and conditions of the Sugar Control Order, 1966. Condition no. 4 of the license reads as follows;
"4& ykblasl/kkjh] jkT; eas xUus ds lEHkj.k rFkk dz; vkSj oSdqve iSu izfdz;k }kjk 'kDdj cukus dh fofu;fer djus ds fy;s rRle; izo`Rr lHkh fof/k;kas rFkk fu;ekas vkSj ,sls funsZ'kksZ dk ikyu djsxk tksa le;≤ ij jkT; ljdkj vkSj xUuk vk;qDr] mRrj izns'k }kjk tkjh fd, tk;aA"
This Court at this juncture also proceeds to take note of the provisions as contained under the U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 wherein as stated in the preamble, the Act has been enacted with a view "to regulate the supply and purchase of sugarcane required for use in sugar factories and gur, rab or khandsari sugar manufacturing units." The object of enactment was stated to be as follows: " with the promulgation of the Industries (Development and Regulation) Act, 1951, with effect from 8/5/1952, the regulation of sugar industry has become exclusively a Central subject. The State Government are now only concerned with the supply of sugarcane to the sugar factories. The bill is being introduced in order to provide for a rational distribution of sugarcane to factories, for its development on organised scientific lines, to protect the interest of cane-growers and of the industry and to put the new Act permanently on the Statute Book." Section 17 therein deals with the payment of cane price and also deals with the procedure that is to be followed for recovery of the amount in question. Section 22 talks of penalties, if any person contravenes provisions of said Act or any Rule or order and Section 23 deals with the institution of proceedings. Relevant Sections 17, 22, 22-A, 22-B and 23 are being quoted below;
"17. Payment of Cane Price:- (1)The occupier of a factory shall make such provision for speedy payment of the price of cane purchased by him as may be prescribed.
(2) Upon the delivery of cane the occupier of a factory shall be liable to pay immediately the price of the cane so supplied, together with all other sums connected herewith.
(3) Where the person liable under sub-section (2) is in default in making the payment of the price for a period exceeding fifteen days from the date of delivering, he shall also pay interest at a rate of 7-1/2 per cent per annum from the said date of delivering, but the Cane Commissioner may, in any case, direct, with the approval of the State Government, that no interest shall be paid or be paid at such reduced rate as he may fix:
[Provided that in relation to default in payment of price of cane purchased after the commencement of this proviso, for the figure '7-1/2' the 'figure 12' shall be deemed substituted.] (4.) The Cane Commissioner shall forward to the Collector a certificate under his signature specifying the amount of arrears on account of the price of cane plus interest, if any, due from the occupier and the Collector, in receipt of such certificate, shall proceed to recover from such occupier the amount specified therein as if it were an arrear of land revenue.
(5) (a) Without prejudice to the provisions of the foregoing sub-sections, where the owner or any other person having control over the affairs of the factory or any other person competent in that behalf enters to an agreement with a bank under which the bank agrees to give advance to him on the security of sugar produced or to be produced in the factory, the said owner or other person shall provide in such agreement that a [percentage determined by such authority and in such manner as may be prescribed] of the total amount of advance shall be set apart and be available only for re-payment to cane-growers or their co-operative societies on account of the price of sugarcane purchased or to be purchased for the factory during the current crushing season from those cane-growers or from or through those societies, and interest thereon and, such societies, commission in respect thereof.
(b) Every such owner or other person as aforesaid shall sent a copy of every such agreement to the Collector within a week from the date on which it is entered into.
22. Penalties:- If any person contravenes any of the provisions of this Act or any rule or of order made thereunder, he shall be liable to imprisonment upto six months or to a fine not exceeding rupees five thousand or both and in the case of continuing contravention to a further fine not exceeding one thousand for each day during which the contravention continues.
[22-A. Powers of certain officers to investigate into offences punishable under this Act.- (1) An Inspector specially empowered in relation to cases generally or to any class of cases by the State Government, by notification, in that behalf may investigate into any offence punishable under this Act committed within the limits of the area in which such officer exercise jurisdiction.
(2). Any such officer may exercise the same powers in respect of such investigation as an officer-in-charge of a police station may exercise in a cognizable case under the provisions of Chapter XII of the Code of Criminal Procedure, 1973.
22-B. Duty of officers of certain departments to report offences and to assist Inspectors.- Every officer of the Police, Revenue and Excise Departments shall be bound to give immediate information to an Inspector of all breaches of any of the provisions of this Act which may come to his knowledge and upon request made by an Inspector, to aid him in carrying out the provisions of this Act and the rules made thereunder.]
23. Institution of proceedings.- (1) No prosecution shall be instituted under this Act except upon complaint made by or under authority from the Cane Commissioner or the District Magistrate.
(2) On the application of a person accused of an offence under this Act, the Cane Commissioner or the District Magistrate with the previous concurrence of the Cane Commissioner may at any stage compound such offence by levying a composition fee not exceeding the fine which could be imposed for such offence.
(3) No Court inferior to that of a Magistrate of the second class shall try any offence against this Act or any order or rule made thereunder."
On the parameters of the provision quoted and noted above it has to be examined as to whether in the facts of the case cognizable offence is disclosed or not.
On factual aspect of the matter this fact has not at all been disputed that after the sugarcane in question has been supplied by the grower of sugarcane and same has been purchased by the producer of sugar at no point of time within 14 days the payment in question has been made good and as per the first information report Rs. 7921.24 Lacs is due and to counter such a situation it is being contended that once the payment in question has not been made within the time frame provided for then at the best the cane grower is entitled for interest as is provided for and nothing beyond the same and petitioners cannot be exposed to penal provisions. The petitioners are labouring under a misconception for the simple reason that the cane grower in lieu of the supplies so made to producer of sugar is entitled to get the payment and if there is failure to make payment within the time frame provided for i.e. within 14 days of the date of delivery, then cane-grower is entitled for interest on amount due for the delayed payment. Interest is compensatory in character and can be recovered for withholding the payment of any amount when it is due and payable as the person entitled have been deprived of his right to use the said amount. Apex Court in the case of Abati Bezbaruah Vs. Deputy Director General 2003 (3) SCC 148, took the view that interest is a compensation for forbearance from detention of money and interest being awarded to a party only for being kept out of money which ought to have been paid to him. Person deprived of use of money to which he is legally entitled as of right, has to be statutorily compensated for the deprivation, call it by any name interest, compensation or damages and the provisions intended to compensate the cane-grower remedies civil wrong and nothing beyond the same.
Compensatory provisions and penal provisions are altogether different and operate in altogether different field and same are altogether separate and distinct from penal proceedings, is fully reflected from the nature and scope of proceedings, as compensatory provisions provides for interest on delayed payment to the person aggrieved, in the present case same being referable to cane-growers. Compensatory provisions are remedial statutes designed for the benefit of class of persons and are also known as welfare beneficent or social justice oriented legislations whereas penal statutes on the other hand are those which provide for penalties for disobedience of law and are directed against the offender in relation to the State by making him liable to imprisonment, fine, forfeiture or other penalty. If the statute enforces obedience to the command of law by punishing the offender and not by merely addressing an individual who may have suffered, it is classified as penal provision. Remedial statutes receive liberal construction whereas penal statutes are strictly construed and in case of remedial disputes the doubt is resolved in favour of class of person for whose benefit the statute is enacted, whereas in case of penal statutes the doubt is resolved in favour of alleged offender. In view of this, merely because remedial forum to compensate by way of interest is thereon delayed payment, it cannot be said that penal provisions cannot be invoked even after finding that there has been violation of law by the offender and specially when penal provisions are introduced for the full and effective implementation of law and for ensuring compliance of law and to serve as effective deterrent tool in case of violations.
Once entitlement of cane-grower has not at all been disputed and within the time frame provided for, amount due has not been paid, then certainly there is a provision that has been incorporated to compensate the cane grower by way of payment of interest on delayed payment but this in itself would not absolve petitioners of their criminal liability and especially when the provisions of U.P. Vacuum Pan Sugar Factories Licensing Order, 1969, Clause-8 clearly provides that if a person contravenes any of the provisions of this order or conditions of the license he shall be punishable in accordance with the provisions of the Essential Commodities Act, 1955.
Sub-clause (3) and Sub-clause (3-A) of Clause 3 of the Sugarcane (Control) Order, 1966 obligates the producer of the sugarcane to ensure payment at the gate of factory at cane collection center or by transferring or depositing amount in the account of seller and if within 14 days from the date of delivery of the cane amount has not been paid then Sub-clause (3-A) makes it clear that amount in question is to be paid at the rate of 15% per annum for the period of such delay beyond 14 days. Condition No. 4 of the license that has been so issued to the factory clearly obligates the licensee of sugarcane producer for ensuring compliance of all the Acts, Rules and orders holding the field of preservation and purchase of sugarcane as well as manufacturing of sugar by vacuum pan process and such directions as issued from time to time by the State Government and Cane Commissioner.
Once gross violation of the terms and conditions of license in the backdrop of provisions of Sugarcane (Control) Order, 1966 is being alleged to have been breached and Section 7 of Essential Commodities Act clearly provides that if any person contravenes any orders made under Section 3 of Essential Commodities Act, he shall be punished, the proceedings initiated in the present case by lodging of first information report under Section 3/7 of Essential Commodities Act are sustainable or not keeping in view the provisions as contained under U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Rules framed thereunder is an issue to be answered by this Court.
Much emphasis has been laid by the petitioners on the fact that action, if any, was required to be undertaken, same ought to have been undertaken as per the provisions as contained under U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 and the rules framed thereunder and not in the way and manner as it has been done in the present case. Under 1953 Act, Section 17 obligates occupier of factory to make provision for speedy payment of price of cane purchased by him as may be prescribed. Upon delivery of cane the occupier of factory is liable immediately to pay the price of cane so supplied, together with all sums. Once amount due has not been paid and there is default in making the payment of the price for a period exceeding fifteen days from the date of delivery, the person liable to pay has to pay interest also. For recovery of said amount Cane Commissioner is obligated to forward a certificate to the Collector of amount due, and Collector is obligated to recover the same as arrears of land revenue. For contravention of provisions of 1953 Act and the Rules and Orders made there, under Section 22 penal provision has been provided for, providing imprisonment for six months or to fine not exceeding rupees fifty thousand or both. Section 22-A deals with the power of certain officers to investigate into offences punishable under this Act. Sub-section (1) of Section 22-A obligates the Inspector, specially empowered to investigate into offences under this Act committed within the local limits of the area in which he exercises jurisdiction and as per Sub-section (2) of Section 22-A, such officer may exercise the same powers in respect of such investigation as an officer-in-charge of police station may exercise in cognizable case under the provisions of Chapter XII of Code of Criminal Procedure. Section 22-B obligates every officer of Police, Revenue and Excise Departments to give immediate information to an Inspector of all breaches of any provision of Act, that comes to his knowledge and upon request made by Inspector to aid him in carrying out the provisions of Act and the Rules framed thereunder. Section 23 provides for the way and manner proceedings are to be instituted by way of complaint under the Act. The Sugarcane (Control) Order, 1966 has been issued in exercise of powers conferred under Section 3 of Essential Commodities Act by the Central Government and therein Sub-clause (1) of Clause 3 authorize the Central Government to fix minimum price of sugarcane and Sub-clauses (3) and (3A) of Clause 3 obligates therein also for ensuring payment within fourteen days from the date of delivery, failing which interest is liable to be paid on delayed payment. For ensuring payment to cane-grower, herein also authorized officer has to certify the amount due to the Collector, who is then obligated to realize the same as arrears of land revenue.
This much is clear that the provisions of Sugarcane (Control) Order, 1966 operates in the same field in which U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 applies and taken together, they wholly occupy the field of regulation of price of sugarcane and also the mode and manner in which sugarcane has to be supplied and distributed to earmarked sugar factories and both lay down comprehensive scheme of regulating purchase and sale of sugarcane to be supplied by earmarked cane-growers to earmarked sugar factories. Apex Court in the case of Belsund Sugar Company Ltd. Vs. State of Bihar 1999 (9) SCC 620, while considering akin provisions vis.a.vis. Sugarcane (Control) Order, 1966 as well as Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 took the view that both are harmoniously operating in same field and complement each other. View to the similar effect has once again been taken in the case of Krishi Upaj Mandi Samiti Vs. Shiv Shankar Khandsari Udyog 2012 (9) SCC 368 wherein the provisions of M.P. Sugarcane (Regulation of Supply and Purchase) Act, 1958 alongwith the provisions of Sugarcane (Control) Order, 1966 was being dealt with and Apex Court has found and ruled that entire field of sale and purchase of sugarcane is covered by Sugarcane Act and Control Order, which are special provisions. In the case of U.P. Cooperative Cane Union Federation Vs. West U.P. Sugar Mill Association 2004 (5) SCC 430, Apex Court though in the matter of fixation of price took the view that there will be no inconsistency or repugnancy as it is possible for both the orders that is Sugarcane (Control) Order, 1966 and the provisions of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 to operate simultaneously and to comply with both of them.
Emphasis has been laid that there is inconsistency in reference of penal provisions between the two and said inconsistency is absolutely irreconcilable and repeal has to be accepted by implication.
The law on the subject stands clarified by the Apex Court in the case of M. Karunanidhi Vs. Union of India, 1979 (3) SCC 431 by taking the view that there can be no repeal by implication unless the inconsistency appears on the face of two statutes, and where there is no inconsistency but statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
Here, in the case in hand, contravention of the provisions of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Rule and Order framed provides for penalties and non-payment of sugarcane dues may be accepted as contravention of the provisions of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Rule and Order framed therein and as far as establishment of vacuum pan sugar factories are concerned license for the same is accorded under U.P. Vacuum Pan Licensing Order, 1989 and Clause 8 provides for prosecution in accordance with the provisions of Essential Commodities Act in the event of violation of any provisions of U.P. Vacuum Pan Licensing Order or the conditions of license. Schedule I of said order contains conditions of license to be observed and condition no. 4 of license provides that the license shall abide by all the laws and rules for the time being in force in the State for regulating the manufacture of sugar by vacuum pan process and the supply and purchase of the sugarcane and such directions as may be issued from time to time by the State Government and Cane Commissioner Uttar Pradesh. Provisions of Essential Commodities Act, Section 3 empowers the Central Government to issue orders providing for regulating or prohibiting the production, supply and distribution of any essential commodity, Section 6 provides for that an order made under Section 3 shall have effect, notwithstanding anything inconsistent therewith contained in any enactment under this Act or any instrument having effect by virtue of any enactment other than this Act. Section 7 of the Act provides for penalties, if any person contravenes any orders made under Section 3. Here statute seeks to create distinct and separate offences. No question of repugnancy arises and both the statutes continue to operate in the same field.
Accordingly for violation of the terms and conditions of license in the backdrop of the provisions of Sugarcane (Control) Order, 1966, proceedings can be initiated by lodging first information report under Section 3/7 of Essential Commodities Act and provisions of 1953 Act will not at all come in the way of the authorities, complaining violation of Control Order and complaining violation of the terms and conditions of license.
In case authorities concerned have chosen to take action for violating the terms and conditions of license and the Control Order, then petitioners cannot take shelter of 1953 Act.
In the present case the first information report has been lodged in regard to violating the terms and conditions of the license as well as the provisions of Sugarcane (Control) Order, 1966, then to say that prima-facie cognizable offence is not made out, cannot be accepted in the facts of the case, as such, there is no occasion for this Court to interfere and quash the FIR, accordingly, prayer in that regard is rejected by this Court keeping in view the parameters as settled by Apex Court in the case of namely State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588 and Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74.
However, in the facts of the case, in case petitioners surrender and apply for bail within three weeks from today, their bail application in question be dealt with in accordance with law as settled by Full Bench of this Court in the case of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290.
With these observations/directions, writ petition stands disposed of.
Order Date :- 18th of June, 2014 Shekhar