Bombay High Court
Nilesh Bhaskar Pathod vs The State Of Maharasthsra on 10 March, 2021
Bench: S. K. Shinde
24.Cri. Appeal 579-1998.doc
Shambhavi
N. Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by Shambhavi N.
CRIMINAL APPELLATE JURISDICTION
Shivgan
Date: 2021.03.12
15:19:40 +0530
Criminal Appeal No. 579 / 1998
Nilesh Bhaskar Rathod
Aged 34 years, Occu. Business,
Residing at Lucky Palace, 204,
Bazar Peth, Navghar (East)
Tal. Vasai, Dist. Thane. .. Appellant
Versus
The State of Maharashtra
(At the instance of Manikpur
Police Station) .. Respondent
*****
Mr. K.H. Parekh, Advocate for Appellant.
Mr. S.R. Agarkar, APP for State/ Respondent.
*****
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24.Cri. Appeal 579-1998.doc
CORAM : SANDEEP K. SHINDE J.
th
DATE : 10 MARCH, 2021.
ORAL JUDGMENT :-
1. Appellant has been convicted for breach of condition no.
2(a) and 2(b) of the license issued under the Maharashtra
Scheduled Oil Seeds and Oils (Dealers and Millers) Licensing
Order, 1973 and sentence to suffer simple imprisonment for
three months and to pay fine of Rs. 2000/- with default
stipulation. It is against the conviction and sentence passed by
the learned Special Judge (E.C. Act), Thane in Special Criminal
Case (E.C. Act) No. 15 / 1996, this appeal is preferred.
2. Briefly stated prosecution case is that;
The appellant is a dealer within the meaning of Clause 2 (b) of
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24.Cri. Appeal 579-1998.doc
the Maharashtra Scheduled Oil Seeds and Oils (Dealers and
Millers) Licensing Order 1973. License no. BSN - 27 at
Exhibit -7 issued to him shows it was issued in terms of
provisions of the Maharashtra Scheduled Oil Seeds and Oils
(Dealers and Millers) Licensing Order 1973 (Order of 1973,
for short). Indisputably, order of 1973 was repealed by the,
th
Food and Civil Supply Department vide notification dated 14
September, 1977 vide Maharashtra Scheduled Oil Seeds and
Oils (Dealers and Millers) (Repealed) Licensing Order 1977
th
(Repealed order, for short). On the very day, i.e. 14
September, 1977 order, Maharashtra Scheduled Oil Seeds and
Oils (Dealers and Millers) Licensing Order 1977 came into
force.
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24.Cri. Appeal 579-1998.doc
3. Indisputably, under the 1977 order, the license conditions
were modified whereby dealers were permitted to store the oil
seeds/ oils at a place other than mentioned in the license,
subject to condition that, dealer shall intimate Licensing
Authority within 24 hours of the storage, at such other place.
nd
4. In the case at hand, on 2 February, 1996, Supply
Inspector, found 242 tins of edible oil were stored at a place, 5
kms. away from the licensed premises. As such, appellant was
prosecuted and charged for breach of license condition under the
Licensing Order of 1973 read with Section 3 of the Essential
Commodities Act.
5. The learned Special Court upon appreciating the evidence
of five witnesses recorded the conviction as stated above.
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24.Cri. Appeal 579-1998.doc
6. The main contention of the appellant is that the impugned
conviction and sentence recorded by the Special Judge is
opposed to law for the reason, that the charge was framed for
an offence under the Non-existing Law called Maharashtra
Scheduled Oil Seeds and Oils (Dealers and Millers) Licensing
nd
Order 1973. Submission is as on the date of offence i.e. 2
February, 1996, trading in Oil Seeds and Oil was governed and
regulated by order of 1977 and not order of 1973. Thus
submitted since prosecution was launched on Non-existing law
i.e. repealed order, it renders the prosecution void. It is
submitted 'defect' in prosecution being fundamental, it is not
curable either under Section 464, 465 of the Code of Criminal
Procedure, 1973.
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24.Cri. Appeal 579-1998.doc
. On these grounds, learned Counsel seeks to quash the
impugned conviction and sentence.
7. Per-contra, learned APP supports the impugned conviction.
nd
It is not in dispute that on 2 February, 1996. Order of 1977
was inforce, however, the appellant was charged for breach of
Licensing order 1973.
8. I have carefully considered the submissions of respective
counsel and also perused the Licensing Orders of 1973, 1977
repealed order and the relevant license conditions.
9. Indisputably, under Licensing Order of 1977, a dealer
was permitted to store the goods at a place other than the
licensed premises but was obliged to post intimation to
Authorities within 24 hours of such storage at such other place.
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24.Cri. Appeal 579-1998.doc
Indeed this condition was not annexed to Licensing Order of
1973. Though the appellant has adduced the evidence and
probablized his defense that 242 tins of edible oil were stored
at a place other than licensed premises, under unseen
circumstances, defense was not accepted, since he was
prosecuted under 1973 order, wherein dealer was not at all
permitted to store commodity i.e. edible oil in a place other
than licensed premises. Conversely, had he been prosecuted
under order of 1977 license conditions would allow him to
adduce evidence in defense. Thus to conclude the prosecution
founded on non-existing law, was void. A defect in non-
existing prosecution being fundamental is not curable. As a
result, appeal is allowed.
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24.Cri. Appeal 579-1998.doc
10. The impugned conviction and sentence quashed and set
aside. Fine amount, if any paid, be refunded to the appellant.
Bail bond is cancelled and sureties are discharged.
11. Appeal is allowed and disposed of.
(SANDEEP K. SHINDE, J)
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