P L D 1961 Dacca 126 (PLP)

SATTAR, J.‑The two petitioners were placed on their trial before Mr. S. N. Ahmed, Special Magistrate (Food), Rajbari for violation of clause 7 Sub‑clause (2) of the East Bengal Foodstuff Price Control and Anti‑Hoarding Order, 1953, read with Government Notification No. 8015‑FD, dated the 20th September 1956. The learned Magistrate found both the petitioners guilty under section 6 of Act I of 1956, and convicted them. Petitioner Sadekali Biswas was sentenced to pay a fine of Rs. 2,000, in default, to undergo rigorous imprisonment for three months and petitioner Prangobinda Saha was sentenced to pay fine of Rs. 700, in default, to undergo rigorous imprisonment for three, months.

2. The allegations against the petitioners are that Sadek Ali Biswas who is a trader in rice and paddy hoarded 2627 maunds 19 seers and 12 chhataks of rice for more than 7 days at a place and 351 maunds, 23 seers and 12 chhataks of rice for more than 20 days from the date of purchase in violation of Notification No. 8015‑FD dated the 20th September 1956. It may be men tioned here that petitioner No. 2 Prangobinda Saha is an em ployee of petitioner Sadek Ali Biswas who is a trader and carries on business in rice and paddy under a licence granted by the Government.

3. On behalf of the accused persons it was alleged that they had no criminal intention nor was there any question of their hoarding the quantities of rice mentioned above as they by submission of returns under the conditions of the licence granted to the trader apprised the Government of the stock position and as no direction was given by the Government for disposal of the rice no offence of hoarding was committed.

4. Mr. Nurul Islam who appears for the petitioners firstly contends that the conviction of petitioner No. 2 who was only an employee of petitioner No. 1 cannot be sustained as he is not a trader within the meaning of the East Bengal Foodstuff Price Control and Anti‑Hoarding Order, 1953. Notification No. 8015 dated the 10th September 1956, was issued in exercise of the power conferred by Sub‑ clause (2) of clause 7 of the East Bengal Food stuff Price Control and Anti‑Hoarding Order, 1953, issued under Notification No. 5221 DCS , dated the 8th August 1953. Sub clause (2) of clause 7 of the said order provides for the issue of direction by the Provincial Government to traders with regard to the period for which foodstuffs can be kept in their possession or under their control. Clause (e) of section 2 of the said Order defines a " trader " as any person engaged in the purchase, sale or storage for sale of any foodstuff. It is, therefore, clear that in view of the definition of trader mentioned above directions issued under sub‑clause (2) of clause 7 of the Order have no application to persons who are only employees of traders. This view receives support in the unreported decisions in the case of Kamaluddin and another v. The Chief Secretary and another (Writ Petition No. 200 of 1958) and in the case of Jyotish Chandra Chowdhury v. Mr. S. Ahmed, Special Magistrate, First Class, Bogra and others (Writ Petition No. 51 of 1958) Mr. A. W. Chowdhury who appears for the respondent concedes that the conviction of petitioner No. 2 cannot be supported.

5. The next point that has been urged by Mr. Nurul Islam is that as petitioner No. 1 was carrying on business under a licence issued by .the Provincial Government and as he has complied with the conditions of the licence by submission of returns (Exhs. ` B ' and ` E ' series) showing the position of the stock from time to time, during the relevant period and as there is nothing to show that he violated any directions given by the Department it cannot be said that he is guilty of violation of Notification No. 8015 dated the 10th September 1956. He has drawn our attention to sub‑clause (I) of clause 5 of the East Bengal Foodstuff Price Control and Anti‑Hoarding Order, 1953. According to this clause the Provincial Government may direct that no trader or class of traders shall carry on the business of any foodstuff except under and in accordance with the condi tions of a licence issued in this behalf by the Provincial Govern ment or any officer authorised by it. He has also drawn our attention to the form of licence wherein conditions of such a licencee are mentioned. Clause 8 of the form provides that the licence shall comply with any directions that may be given to him. by the Provincial Government in regard to the purchase, sale or storage for sale of any of the food‑stuff mentioned in clause I and in regard to the manner in which accounts shall be kept, returns shall be submitted receipts or invoices shall be written as men tioned in clauses 3, 4 and 5 respectively of the licence. Mr. Islam's contention is that in compliance with clause 8 of the licence the trader, in this case, submitted returns and as the Department did not issue any direction as to how he should deal with his stock the: petitioner should not be penalised for violation of the General Notification issued by the Government. It is true that in respect of the submission of returns by the trader showing the position his stock, in this case, the Department did not issue any particular direction on him as to how he should dual with the same. But that, in our view, is not sufficient to exonerate him from hi liability under the General direction of the Government issue under sub‑clause (2) of clause 7 of the Order. We are not unmindful of the fact that in certain circumstances non compliance with this General direction may not be deliberate and in such a‑case prosecution may result in hardship. It is however for Government to take such facts into consideration and take such action as they deem necessary in such cases. It has not been shown, in this case, that the trader was not in a position to dispose of his stock. Be that as it may, we are here concerned with the interpretation of the different clauses of the Anti‑Hoarding Order and on a consideration of the different clauses we agree with the learned Magistrate, on the facts found by him, that the petitioner No.1 was guilty of voilation of Notification No. 8015‑FD dated the 10th September 1956, and as such he is guilty under section 6 of Act I of 1956.

6. In the result the Rule is partly made absolute and the conviction and sentence of petitioner Prangobinda Saha are set aside but the conviction and sentence of Sadek Ali Biswas are maintained. Let a writ of certiorari issue quashing the conviction of Prangobinda Saha and the sentence passed on him. 1n view of the facts of the case we direct that the parties will bear their own costs. ISPAHANI, J.‑I agree. K.B.A. Rule partly made absolute.