http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: BHAGIRATH SHARMA & ANOTHER

DATE OF JUDGMENT09/04/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2198            1973 SCR  (3) 937  1973 SCC  (2) 257  CITATOR INFO :  D          1979 SC 180  (5,9)

ACT: Bihar Essential Commodities Act other than Foodgrains Prices and Stocks (Display and Control) Order, 1967, Cls. 3, 4  and 5--Tyres  and tubes if included in Schedules--Principles  of interpretation of penal measures. Constitution  of  India,  1950,  Art.  134(1)(c)--’Certify’, scope of.

HEADNOTE: Item 1 of Schedule 1 of the Bihar Essential Commodities Act- other   than  Foodgrains-Prices  and  Stocks  (Display   and Control)  Order,  1967,  refers  to  ’component  parts   and accessories of automobiles’.  On the basis that there was  a failure  on  the  part of the firm  of  the  respondents  to display the price list and stock position of motor tyres  in their shop, the respondents were prosecuted for the  offence of contravention of cls. 3, 4, and 5 of the Order.  The High Court in revision quashed the prosecution on the basis  that the  item  did not refer to tyres and tubes of  motor  cars. After the judgment, an item was introduced in Schedule 11 of the Order relating to tyres and tubes of cars etc. Dismissing  the appeal filed with a certificate  of  fitness under Art. 134(1)(c) of the Constitution, HELD  : (1) Assuming from a broad point of view  that  tyres and  tubes of motor cars may be considered to be covered  by the   expression   component  parts   and   accessories   of automobiles"   when  construed  in  its  widest  import,   a comparison  of  the scheduled items of the  Order  with  the items  in  the  various notifications issued  by  the  State Government and the Central Government shows that it was  not intended  by the draftsman to extend the Order, as in  force in May 1969, when the firm of the respondents was inspected, to cover tyres and tubes of motor cars. [941C-F] (2)  According  to  the fundamental  principle  of  criminal jurisprudence  which reflects fair play, a dealer must  know with reasonable certainty and must have a fair warning as to what  his  obligation  is, and what  act  of  commission  or omission  on his part would constitute a  criminal  offence, Unless the dealers are in a position to know with  certainty that  ’tyres  and tubes of motor cars’ are included  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Schedule  items,  of  which the price  list  and  the  stock position  ought  to be displayed in a  conspicuous  part  of their  business  premises, they cannot be held guilty  in  a 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 unambiguously specify  ’tyres  and tubes   of motor cars’ as a Scheduled item.[941F-H] (3)  The  word ’certify’ in Art. 134(1)(c) is a strong  word postulating   the   exercise  of  judicial   discretion   in determining if the question requiring decision by this Court involves a matter of principle or a substantial question  of law of great general importance.  Such certificate is not to be  given as a matter of course on the mere ground that  the impugned decision is considered to be 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 fur- 12-L797Sup.CI/73 938 ther  appeal.  In the present case, after the issue  of  the Notification  including ’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 motorcars; and the effect of the present  decision would be confined only to the prosecution of the respondents 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. [940E-H]

JUDGMENT: 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. B. P. Jha, for the 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 a  certificate of fitness under Article 134 (1) (c)  of  the Constitution from the judgment and order of a 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, the 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 Sub-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, Marketing  Officer,  Gaya, had,  along  with  two supply Inspectors,  made  a  surprise inspection  of  the firm on May 22, 1969 and  found  certain irregularities.   One  of  those  irregularities  was,   the failure  of  the, firm to display the price list  and  stock position   of  Motor  Tyres  anywhere  in  their  shop,   in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

contravention  of clause 4 of the order.  On search  by  the said  Marketing  Officer.  a huge stock of  Motor  Tyres  of different varieties numbering 487 were actually found stored in  the  inner  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  Bhagirath Sharma and  Shri  Radhey  Shyam Sharma,  respondents  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 939 the Sub-Divisional Magistrate on May 23, 1969.  On the  same date, the Sub-Divisional Officer, Sadar, Gaya after pursuing the report of the Marketing Officer, took cognizance of  the case  under  S.  7  of the  Essential  Commodities  Act  and transferred  it  for  disposal to the Court of  Shri  N.  N. Singh,  Munsif Magistrate, 1st Class, Gaya. lit  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. A 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. 1479 of 1968 holding that item No. 1 of Schedule  1 could  not  be assumed to cover the commodities  like  Motor Tyres)  and  Motor Tubes though he himself thought  that  he would  have taken a 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  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. 1 in Schedule 1 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  and 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  a 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 impugned judgment is item  No. 5 which reads               "5.  Cycle tyres and tubes,  (including  cycle               rickshaw tyres and tubes)." The submission that this item should be held to cover  Motor Tyre  &  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 a Gazette Notification 940 (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

             whatsoever, tractors and tractor-trollies." Quite clearly after this Notification there can be no  doubt whatsoever  that the Order is comprehensive enough  to  take within  its  fold  Tyres  and  Tubes  of  cars  as  also  of ’automobiles 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 governed by the  decision of this Court.  Unfortunately, even  the  High Court  has  made  a laconic order on  oral  request,  merely stating               "IT IS CERTIFIED               That  this  case fulfills 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  a  strong  word postulating  the  exercise  of  judicial discretion in determining if the question requiring decision by   this  Court  involves  a  matter  of  principle  or   a substantial  question  of law of  great-general  importance. Such certificate is not to be given as a matter of course on the mere ground that the impugned decision is considered  to be   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 Dosed is  likely to  govern any case other than the one in hand  relating  to the  acquittal  of  the respondents.  It  appears  that  the attention  of  the  High Court was not drawn  to  the  Bihar Government  Notification dated September 18, 1970, by  means of which the defect or lacunas 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 expected  it to state in the order granting the  Certificate the reasons impelling it to do so. 941 Now  in the judgement in Criminal Misc.  Case  No.  1479/68, reference was made to a Notification dated January 11,  1968 (No.S.C.218) issued by the Ministry of Commerce,  Government of India in which Types and Tubes of Scooters were expressly mentioned   as  essential  commodities  distinct  from   the component  parts and accessories of automobiles.   Reference in  that  judgment  was also made to  a  Notification  dated August  22,  1968  (No.  S.Q. 2878) issued  by  the  Central Government in which similarly Tyres and Tubes of Cars,  etc. were specifically mentioned as essential commodities, and to a  still later Notification by the Central Government  dated January  3, 1969 (No.  S.O. 85) in which Tyres and Tubes  of Cars  were mentioned in a manner almost similar to the  one, found  in  the  Bihar Government  Gazette  Notification  No. G.S.R. 82 dated September 18, 1970. In this background even assuming that from a 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

with  the  items  in the other  Notification  mentioned  and considered  in the earlier ,decision of the High  Court  (in Crl.  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 Crl.Misc.Case No. 1470/68) do indicate  that the  draftsman  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 a Scheduled item.  We do not think it does  unless  the ’dealers are in a 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 a  conspicuous part of their business premises, in our opinion, they cannot be  held guilty in a criminal court of an offence under  the Essential Commodities Act for violation of any such mandate. According  to  the  fundamental principle  of  our  criminal jurisprudence,  which  reflects fair play, the  dealer  must know with reasonable certainty and must have a fair  warning as  to what his obligation is and what act of commission  or omission on his part 942 would constitute a criminal offence before he can be  called upon  to answer a charge and be liable to be convicted in  a criminal  court for any violation of a legal mandate.   This approach is in conformity with the general requirement  that the  act  or  default should be associated  with  a  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 and we see no cogent ground for disagreeing with it. The appeal accordingly fails and is. dismissed. V.P.S.                    Appeal dismissed. 943