JUDGMENT 1. -These three petitions filed under Section 481 read with Section 397 of the Code of Criminal Procedure, 1974, raise common questions for determination and' therefore, they are being disposed of by his common order. The petitioners in all these petitions, are Government contractors who had obtained cement from the Public Health Engineering Department (P. H. E. D.) of the Government of Rajasthan in connection with the execution of the contracts entered into by the petitioners and are being prosecuted in respect of the Offence under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act") for contravention of the provisions of the Rajasthan Cement (Licensing and Control) Order, 1974 (hereinafter referred to as ("the Order"). 2. Fakkar Khan petitioner in S. B. Criminal Misc. Application No. 29/82, has entered into the contracts for the construction of paka diggis in villages Hansera, Badrasar and Jamsar and in connection of the execution of the aforesaid contracts, he had obtained 3510 bags of cement from the P. H E. D. Mohan Lal and Punam Chand petitioners no. 1 and 2 in Criminal Misc. Application No. 31/82 are the partners of the firm M/s. M. L. Construction Co. and the aforesaid firm had entered into a contract with the P. H. E. D. for the construction of a pakki diggi at village Bamanali and in connection with the execution of the said contract, 2100 bags were obtained by the said firm from the P. H. E. D. 3. On the basis of the information received by him, Shri Bakhshish Singh' S. H. O., P. S. Sadar, Bikaner, went to the house of one, Sai Bux in Bikaner, on 22nd April, 1981 and on checking the said house, he saw cement bags in two room in the said house and he was informed by Kasam Ali son of Sai Bux, who was present in the house, that the said cement bags belonged to the petitioner Fakkar Khan. Since neither Sai Bux nor Fakkar Khan were present, Shri Bakshish Singh sealed both the rooms in which cement bags were kept in the house of Sai Bux. Thereafter, Shri Bakshish Singh went to the house of Fakkar Khan in Bikaner but he was not found there and on checking, some bags of cement were found in one room of the said house and the said room was locked and sealed. Thereafter, Shri Bakshish Singh went to the house of Fakkar Khan in Bikaner but he was not found there and on checking, some bags of cement were found in one room of the said house and the said room was locked and sealed. Shri Bakshish Singh also went to the house of one Babu Khan in Bikaner and found that cement was stocked there also but Babu Khan was not found and the store in which cement was said to have been stored was sealed. Thereafter Shri Bakshish Singh lodged a report at P. S. Sadar, Bikaner on 22nd April, 1981 about 9.50 a. m. After lodging the said F. I. R., the two rooms in the house of Sai Bux were opened on 26th April, 1981 and in the said rooms 1047 bags of cement were found out of which three bags were half full. On the same day, the room in the house of Fakkar Khan was also opened and in that room, 45 bags of cement and five open bags which were half full and three tins of 18 kg. each filed with cement were found. On the same day, the room in the house of Babu Khan was also opened and in the said room, 602 bags of cement were found. During the course of investigation, it was learnt that the cement which was found in the house of Babu Khan, belonged to M/s. M. L. Construction Co. After investigation, two charge sheets were filed by the police in the court of Chief Judicial Magistrate, Bikaner, one against Fakkar Khan and Sai Bux in respect of the cement bags which were found in the house of Sai Bux and in the house of Fakkar Khan, and the other against Mohan Lal, Punam Chand the two partners of M/s. M. L. Construction Co., and Babu Khan in relation to the cement bags found in the house of Babu Khan. In both these cases, the Chief Judicial Magistrate, Bikaner by his order dated 10th December, 1981, has directed that charge under section 3/7 of the Essential Commodities Act for contravention of clauses 8 and 15 of the Order be framed against the accused persons. Being aggrieved by the aforesaid order passed by the Chief Judicial Magistrate framing the aforesaid Charge against him. Fakkar Khan has filed Criminal Misc. Application No. 29/82. Being aggrieved by the aforesaid order passed by the Chief Judicial Magistrate framing the aforesaid Charge against him. Fakkar Khan has filed Criminal Misc. Application No. 29/82. Similarly petitioners Mohan Lal, Punam Chand and Babu Khan have filed S. B Criminal Misc. Application No. 31/82 against the order of the Chief Judicial Magistrate, Bikaner dated 10th December, 1981 framing the charge against them. 4. Bhikam Chand, petitioner in S. 3. Criminal Misc. Application No. 37/82, is the proprietor of the firm Harsh & Co. He was given a contract for construction of certain boundary walls in the building of the P. H E. D. at Loonkaransar in Tehsil Bikaner and for execution of the aforesaid contact, he obtained 300 bags of cement from the P. H. E. D. on 15th April, 1981 on the basis of the information received by him that Harsh & Co. were indulging in black marketing of cement at the house of Tulcha Devi at Usto Ki bari in Swamion-Ka-Mohulla, Bikaner, Shri Laksmi Narain Sharma, S. H. O., P. S. Kotwali Bikaner, went to the house of Tulcha Devi on 18th April, 1981. He found petitioner Bhikam Chand Harsh present there and on search, of the house, 110 bags of cement were found in the house and the some were seized. Thereafter, Shri Laxminarain Sharma lodged a report at P. S. Kotwali, Bikaner, on 15th May, 1981 and after investigation, the police has filed a charge-sheet in respect of offence under section 37 of Essential Commodities Act for contravention of clauses 15, 16 and 18 of the order against petitioner Bhikam Chand in the court of Chief Judicial Magistrate, Bikaner. Being aggrieved by the aforesaid charge-sheet that has been filed against him, Bhikam Chand has filed Criminal Misc. Application No. 37/82. 5. I have heard Mr. B. L. Purohit, the learned counsel for the petitioners in all the three petitions and learned Public Prosecutor. 6. The submission of Mr. Purohit was that on the basis of the charge-sheet and the papers, that have been filed along with the charge-sheets it cannot be said that the petitioners have contravened the provisions of the Order and, therefore the criminal proceedings initiated against the petitioners for contravention of the, provisions of the Order should be quashed. For a proper appreciation of the contentions of Mr. For a proper appreciation of the contentions of Mr. Purohit, it would be necessary to take note of the provisions of the Order as amended by the amending notes of 1976, 1977 and 1978. 7. The order has been issued by the State Government in exercise of the powers conferred on it by clauses (c), (d), (e), (f), (h), (i), (ii) and (j) of sub-section (2 of section 3 of the Act. 8. Clause 2 defines the various expressions used in the order and in clause 2 (g), the expression dealer has been defined to mean a person who deals in cement involving the purchase, sale and storage for sale of cement, but does not include a manufacturer of cement, Clause 3 prohibits a person from carrying on business as a dealer except under and in accordance with the terms and conditions of a licence issued by the licensing authority and the dealer is required to have a separate licence for each place of business. Clause 4 makes provisions for the issuance of the licence and prescribes the form for the application for issue, reissue or renewal of licence as well as the form for the licence. Clause 5 prescribes the period for which the licence should be valid, the renewal of the licence and the fees chargeable for the same. Clause 6 makes provision for deposit of security for due performance of the conditions of the licence; by the licensee. Clause 7 empowers the licensing authority to refuse to grant or renew a licence. Clause 8 prohibits any person from storing or-having in his possession at any time after the commencement of the Order, Cement in excess of 121/2 tonnes except under and in accordance with the provisions of the Order. Clause 9 empowers the licensing authority to give special o r general directions from time to time to a licensee in respect of storage, sale, purchase, acquisition, distribution, disposal of cement and the manner in which accounts thereof shall be maintained and returns submitted and an obligation has been imposed on the licensee to comply with those directions. Clause 10 requires that the licensee shall display at a conspicuous place of his business premises the opening balance and price of cement in stock with him before the commencement of business every day. Clause 10 requires that the licensee shall display at a conspicuous place of his business premises the opening balance and price of cement in stock with him before the commencement of business every day. Clauses 11 and 12 prescribed the consequences for contravention of the terms and conditions of the licence and the provisions of the order, by a licensee or his agent or any other person acting on his behalf and lay down that in such circumstance, the licence may be cancelled or suspended and the security deposit may be forfeited by the licensing authority. Clause 13 requires that every licensee shall submit to the licensing authority fortnightly returns showing all receipts and sales of cement during the fortnight clause 14 prohibits a licensee from acquiring cement for sale except under an authorisation by the State Government or the Collector within the local limits of whose jurisdiction the place of business of the licensee is situated. Clause 15 prohibits a person other than licensee from acquiring cement except under and in accordance with the permit issued by the Permit Officer or under the orders, issued by the State Government from time to time. Clause 16 makes provision for submission of applications for permit for purchase of cement for use and the issuance of the said permit. Clause 17 prohibits a licensee from selling cement to any institution, person or any other consumer except in accordance with the terms and condition of the permit issued by the Permit Officer or under the orders issued by the Government from time to time. Clause 18 provides for revocation of an permit on. 1 the grounds set out in the said clause. Clause 19 provides that except with the prior written permission of the authority who issued the authorisation or permit no person shall dispose of cement in any manner other than specified in the authorisation or Permit. Under Clause, 20, the licensing authority has been empowered to Permit removal of any dealer or any other person holding stocks of cement from removing or Permit removal of any cement from the place where cement is stocked or kept except with written permission of the licensing authority. Clause 21 lays down that no person shall soll or offer for sale and no person shall buy cement at a place higher than that fix under clause 10 of the Cement Control Order, 1967. Clause 21 lays down that no person shall soll or offer for sale and no person shall buy cement at a place higher than that fix under clause 10 of the Cement Control Order, 1967. Clause 22 requires a holder of a licence to maintain a register of transactions of cement as laid down in the terms and conditions of the licence and show therein names, address and such other particulars of transactions as the licensing authority may specify. Clause 23 relates to the powers of entry, search, seizure etc. Clause 24 confers a right of appeal against orders made under the order and provides the period of limitation for filing such appeals. Clause 25 empowers the State Government to exempt any person or class of persons in any area or throughout the State from the operation of all or any of the provisions of the order. 9. A perusal of the aforesaid provisions contained in the Order shows that the Order seeks to control and regulate the purchase, sale and storage of cement by licensing of dealers in cement and further by regulating the acquisition of cement by persons other than licensee through permits or orders issued by the State Government from time to time. 10. Shri Purohit has submitted that the order is intended to regulate the activities of the dealers, who are required to obtain a licence and that the Provisions of this order can have no application to the petition who are mere contractors and had obtained cement from the Government for the execution of the contracts. Shri Purohit has also submitted that even if held that the provisions of the Order are applicable to the petitioners, the petitioners cannot be said to have contravened any of the provisions of the said order. The submission of Shri Purohit was that in the present case, the petitioners have obtained the cement from the P. H. E. D. and they were keeping the said cement only for the purpose of executing the contracts and therefore, there was no contravention of the provisions of the Order. 11. The submission of Shri Purohit was that in the present case, the petitioners have obtained the cement from the P. H. E. D. and they were keeping the said cement only for the purpose of executing the contracts and therefore, there was no contravention of the provisions of the Order. 11. The learned Public Prosecutor, on the other hand, has submitted that the petitioners after obtaining the cement from the P. H. E. D. for the purpose of utilising it for executing the contracts diverted the said cement and instead of keeping it at the site as required under the terms of the contract, they kept it at other places with a view to sell the same in black market and they have, therefore contravened the various provisions of the Order. 12. In the present cases, we are primarily concerned with clauses 8 and 15 of the Order. The said clauses, as amended, provide as under:- "8. Restriction on storage of Cement: No person shall after the commencement of this order, store or have in his possession at any time cement in excess of twelve and half tonnes, except under and in accordance with the provisions of this order : Provided that, where a person has in his possession at the commencement of this order any quantity of cement in excess of twelve and half tonnes, he shall declare such stock to the permit Officer within three days from the commencement of this order." "15. Acquisition for use: No person other than licensee shall acquire cement except under and in accordance with a permit in Form F (or any other form prescribed) issued by the Permit Officer or under the orders issued by the Government from time to time." 13. It is not disputed that in the contracts entered into by the petitioners, it is stipulated that "all materials supplied to contractor shall remain the absolute property of Govt, and shall not on any account be removed from the site of the work, and shall at all times be open to inspection by the Engineer-in-charge." 14. It is not disputed that in the contracts entered into by the petitioners, it is stipulated that "all materials supplied to contractor shall remain the absolute property of Govt, and shall not on any account be removed from the site of the work, and shall at all times be open to inspection by the Engineer-in-charge." 14. In so far as clause 15 of the order is concerned, the submission of Shri Purohit was that the cement, which is the subject-matter of these criminal proceedings against the petitioners had been supplied to them on basis of the orders issued by the Executive Engineer, P.H.E.D., Bikaner, who is an officer of the State Government and that the petitioners have, thus, obtained the said cement under orders passed by the State Government and it could not be said that the petitioners have contravened the provisions of clause 15 of the Order. The learned Public Prosecutor does not dispute that the cement was obtained by the petitioners under the orders of the Executive Engineer, P. H. E. D. of the Government of Rajasthan but the submission of the learned Public Prosecutor was that the said cement was given to the petitioners with the specific object of utilising it for the execution of the contracts and they were required to keep the said cement at the site and that instead of utilising cement for the purpose of contract the petitioners had diverted the same to Bikaner and were keeping it there for the purpose of selling it in black market and that the aforesaid diversion of the cement with a view to sell the same in black market constitutes acquisition of cement in contravention of the provisions of clause 15 of the order an the petitioners are liable to be punished for the said contravention. Shri Purohit has vehemently refuted the suggestion that the petitioners had stored the cement in Bikaner with a view to sell the same in black market. 15. As pointed out earlier the various provisions of the order seek to control the distribution and supply of cement by introducing the system of licensing of the dealers and the system of permits and authorisations for acquisition of cement by the consumers. 15. As pointed out earlier the various provisions of the order seek to control the distribution and supply of cement by introducing the system of licensing of the dealers and the system of permits and authorisations for acquisition of cement by the consumers. With that end in view clause 3 prohibits a person from carrying on the business as a dealer except under and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority and clause 15 prohibits a person other than a licensee from acquiring cement except under and in accordance with a permit issued by the Permit Officer or under orders issued by the Government from time to time. Clause 15 seeks to prevent unauthorised acquisition of cement by persons other than licensees. The word "acquire" is a term of wide import and for effective implementation of the provisions of the order, the aforesaid term in clause 15 must be construed in the wider sense so as to encompass acquisition in every form. But at the same time the word "acquire" in clause 15 cannot be so construed as to include within its ambit certain transactions, e.g. delivery by the consumer who has obtained cement under a permit or authorisation, to a carrier in pursuance of a contract for carriage or delivery by the consumer to the contractor in pursuance of a building contract. The order does not contemplate that the carrier or constructor who obtains delivery of cement from the consumer should obtain a permit or authorisation for the same and, therefore, the carrier or the contractor, in obtaining delivery of the cement, in pursuance of the contract of carriage or the building contract, cannot be said to have acquired the said cement for the purpose of clause 15. The petitioners had obtained the delivery of the cement from the P. H. E. D. in pursuance of the contract obtained by them, for the purpose of utilising the same in the construction work undertaken by them and in thus obtaining the delivery of the cement from the Pi H. E. D. the petitioners cannot be said to have acquired cement so as to attract the provisions of clause 15. Moreover, even if it be assumed that in obtaining the delivery of the cement from the P. H. E. D. the petitioners had acquired the said cement, it cannot be said that the said acquisition was unauthorised because the said cement was obtained by the petitioners under the orders issued by an officer of the Government, viz, the Executive Engineer, P.H.E.D. Bikaner. 16. Once it is held that the petitioners in obtaining the cement had not contravened the provisions of clause 15, can it be said that the petitioners contravened the provisions of clause 15 by taking away the cement to Bikaner instead of taking the same at the site as required under the contract? In my opinion, the said question must be answered in the negative. The subsequent conduct of the petitioners after obtaining the delivery of the cement from the P.H.E.D. would not have the effect of rendering as invalid the original acquisition which was valid and authorised so as to attract the provisions of clause 15. The diversion by the petitioners of the cement obtained by them from the P.H.E.D. to Bikaner, even if it was with the object of selling the same in black market, might involve contravention of some other provision or provisions of the Order but it would not render the acquisition of the cement by the petitioners as invalid and unauthorised so as ,o constitute a contravention of the provisions of clause 15 of the Order. The petitioners cannot, therefore, be prosecuted for contravention of clause 15 of the Order. 17. With regard to the contravention, of the provisions of clause 8 of the Order, Shri Purohit has submitted that the petitioners have not contravened the said clause because the petitioners cannot be said to have been in possession of the cement that was seized. According to Shri Purohit there is a distinction in law between custody and possession and since the cement that has been seized belonged to the State Government and it had been delivered to the petitioners only for the purpose of utilising the same in the works which were to be executed by them, the petitioners were only in custody of the said cement and they were not in possession of the same and, therefore, they cannot be held to have contravened the provisions of clause 8 of the order. I am unable to accept the aforesaid contention of Shri Purohit, Even if the word "possession" in clause 8 is construed narrowly to exclude "custody" it is not possible to hold that the petitioners were not in possession of the cement which has been seized because after obtaining the said cement from the godsons of the P.H.E D. the petitioner secured full dominion and control over the said cement and the officers of the State Government had no control either over the movement or the storage of the said cement. This is borne out from the fact that the petitioners, instead of taking the cement obtained by them from the P.H.E.D. to the site and keeping it there, took it to Bikaner and kept it there. In the circumstances, it is not possible to hold that the petitioners were not in possession of the cement, which has been seized. 18. Another contention urged by Shri Purohit was that if it is held that the acquisition of the cement by the petitioners was valid and authorised and the petitioners have not contravened the provisions of clause 15, it cannot be said that they have contravened provisions of clause 8. In my opinion, the aforesaid contention also cannot be accepted. Even if it is held that the petitioners have not contravened the provisions of clause 15 of the Order for the reason that they had obtained the said cement validity in pursuance of the orders passed by the Executive Engineer of the P.H.E.D., they can still be held to have contravened the provisions of clause 8 if they are found to have stored the said cement in contravention of the orders of the Executive Engineer of the P.H.E.D. In view of the stipulation contained in the contracts entered into by the petitioners with the Government, it must be held that the cement, which was delivered to the petitioners under the orders of the Executive Engineer, P.H.E.D., was subject to the condition that the said cement would be kept at the site of work, The petitioners, instead of storing the said cement at the site of work, stored it at another place viz. Bikaner, in contravention of the aforesaid direction and the storage of the cement by the petitioners at places other than the site of work was, therefore, not in accordance with the provisions of the order. Bikaner, in contravention of the aforesaid direction and the storage of the cement by the petitioners at places other than the site of work was, therefore, not in accordance with the provisions of the order. If the quantity of cement, which was found to be thus stored at places other than the site of work was more than 121/2 tonnes, it cannot be said that the petitioners have not contravened the provisions of clause 8 of the Order. 19. At this stage, it may be observed that the learned Public Prosecutor has submitted applications under section 216 read with section 482 Cr.P.C. wherein it has been submitted that on the basis of the papers submitted along with the charge-sheet the contravention of clauses 3, 19 and 21 is also established by the petitioners and that the charge-sheet be suitably amend the clause to include the violation of clauses 3, 19 and 21 of the Order. I do not consider it necessary to deal with this application. It would be open to the State to move the trial court for modification of the charge and it would be open to the Chief Judicial Magistrate to modify the charge if contravention of other provisions of the order is disclosed from the charge-sheet and the papers filed along with the charge-sheet. 20. Shri Purohit has urged that in respect of an offence under section 3/7 of the Act, it is necessary to establish mens rea and that in the present cases, the petitioners did not have the mense rea to contravene the provisions of the Order and that they were proceeding bona fide under the impression that the provisions of the Order were not applicable to them. Shri Purohit has also submitted that in the present cases, the pensioners were justified in not storing the cement at the site but to store the cement in the go down at Bikaner, because there was no adequate arrangement for storing of the cement at the site and if the cement had been kept at the site, it would have been spoiled on account of rains etc. Sri Purohit has also placed on record certain documents to show that entire quantity of cement that was received by the petitioners in Criminal Misc. Applications Nos. 31/82 and 37/82 has been duly accounted. In my opinion the aforesaid argument cannot be entertained at this stage. Sri Purohit has also placed on record certain documents to show that entire quantity of cement that was received by the petitioners in Criminal Misc. Applications Nos. 31/82 and 37/82 has been duly accounted. In my opinion the aforesaid argument cannot be entertained at this stage. The question as to whether the petitioners had the necessary mens rea or they were acting bonafide is a matter, which will be enquired into during the course of trial and it cannot be gone into at this preliminary stage of framing of the charge. At this stage all that can be said is that on the basis of the material on record, it is not possible to hold that the petitioners have not contravened the provisions of the Order. 21. In Criminal Misc. Applications No. 37/82, according to the charge sheet filed by the police, the petitioners Bhikam Chand said to have contravened the provisions of clauses 15, 16, 17, 18 of the Order. As already pointed out earlier, the said petitioner cannot be said to have contravened clause 15 of the Order. The learned Public Prosecutor has not been able to show how the said petitioner can be said to have contravened clauses 16 and 18 of the Order. The learned Public Prosecutor as,however, submitted that charge is yet to be framed and that contravention of clauses 3, 19 and 21 is disclosed from the papers that have been filed along with the charge-sheet. Since the charge has not been yet framed by the Magistrate It would be for the Magistrate to consider the questions as to whether the charge sheet and the papers filed there with disclose contravention of the provisions of clauses 3, 19 and 21 or any other provisions of the Order. All that can be said at this stage is that it cannot be said that no provision of the Order can be said to have been contravened by the said petitioner. 22. In the result, Criminal Misc. Application Nos. 29 and 31 of 1982 are partly allowed to the extent that the charge framed against the petitioners in these cases is so far as it relates to the contravention of clause 15 of the Order by the petitioners in these cases, cannot be sustained. It cannot, however, be said at this stage that the petitioners in these cases have not contravened the provisions of clause 8. It cannot, however, be said at this stage that the petitioners in these cases have not contravened the provisions of clause 8. It will also be open to the Chief Judicial Magistrate to consider as to whether the contravention of clauses 3, 19 and 21 or any other provision of the Order is disclosed on the basis of the charge sheet and the papers filed along with the charge-sheet and if any such contravention is disclosed charge may be amended accordingly. Criminal Misc. Application No. 37/82 is partly allowed to the extent that on the basis of the charge-sheet, and the papers filed along with charge-sheet, it cannot be said that the petitioner in this ease has contravened the provisions of clauses 15, 16, 17, 18 of the Order. It will, however, be open to the Chief Judicial Magistrate to consider as to whether on the basis of the charge-sheet and the papers filed along with the charge-sheet, the said petitioner can be said to have contravened the provisions of clauses 3, 19 and 21 or any other provisions of the Order. The petitions will stand disposed of accordingly.Applications partly allowed with directions. *******