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1982 DIGILAW 53 (PAT)

Sitaram Kedia v. State of Bihar

1982-04-26

R.P.SINHA

body1982
JUDGMENT : Ramchandra Pd. Sinha, J. This application under section 482 of the Code of Criminal Procedure has been filed by the accused petitioner for quashing the prosecution of the petitioner for quashing the prosecution of the petitioner pending in the court of sub-Divisional Magistrate, Sitamarhi, East in G.R. case no. 120 of 1980 for the offence under section 7 of the Essential Commodities Act (hereinafter to be referred as the 'Act') 2. The prosecution case is that on 14th of March 1980, the godown of the petitioner was raided. Since the house was locked and nobody appeared before the authorities conducting the raid, the same was sealed. On the 15th of March 1980, the seal was broken and it was found that 70 qtls. of medium class of rice in 70 bags were kept there. The allegation against the petitioner was that the storage was without any licence and that no declaration as required under the Bihar Foodgrains (Declaration of Stock by Cultivators) ORDER :, 1967, was made. 3. A written report incorporating the aforesaid facts was made by the Supply Inspector, Pupur Bazar, P.S Pupur, District Sitamarhi, to the Officer-in-charge of the said Police Station on which a first information was drawn and a case was registered for the offence under section 7 of the Act. 4. On completing investigation, the charge sheet was submitted. The petitioner had also filed a petition on 19.9.1980 before the Sub-divisional Judicial Magistrate, Sitamarhi East to the effect that no cognizance should be taken in the case as no offence is made out against the petitioner. The learned Sub-divisional Judicial Magistrate after hearing the parties took cognizance or the offence under section 7 of the Act for violating the provision, of the Bihar Foodgrains Dealer's Licensing ORDER :, 1967 (hereinafter to be referred as to 'ORDER :') and rejected the petitioner by the petition filed by his ORDER :dated 20th of February, 1931. 5. By filing thing application under section 432 of the Code of Criminal Procedure, the petitioner has challenged the ORDER :of taking cognizance and his prosecution. It has been contended by Mr. Nawal Kishore Agrawal, learned counsel appearing on behalf of the petitioner that the petitioner has not violated any provisions of the ORDER :. There is no allegation or materials to hold that the petitioner was dealer in foodgrains. It has been contended by Mr. Nawal Kishore Agrawal, learned counsel appearing on behalf of the petitioner that the petitioner has not violated any provisions of the ORDER :. There is no allegation or materials to hold that the petitioner was dealer in foodgrains. The only allegation is that 70 qtls of rice were found in the house of the petitioner. On the aforesaid allegation and the materials found during investigation, it cannot be said that the petitioner was dealer in foodgrains and as such there is no question of violating the provisions of the ORDER :in this case. Clause 3 of the ORDER :prohibits to carryon business as a wholesale dealer or retail dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. Sub-clause (2) of clause 3 of the ORDER :further says that if any body other than a bonafide consumer or an agriculturist is found to have stored one or more foodgrains in any quantity exceeding ten quintals or more at any time it will be deemed that the storage was for the purpose of sale. It can be said in this case as the petitioner was found to have 70 qtls, it would be deemed that he stored the same for the purpose of sale. The said sub-clause does not say that if any body is found to have stored foodgrains exceeding ten quintals, it would be deemed that he was carrying on business in foodgrains. The said sub-clause merely that such storage would be deemed to have been stored for the purpose of sale. Mere storage of foodgrains exceeding ten quintals does not make a person to be a dealer as defined in sub-clause (b) and (d) of clause 2 of the said ORDER :. 6. For this purpose, the learned counsel appearing on behalf of the petitioner has relied upon a case of Dhamru Sah Vs. The State of Bihar in Criminal Misc. No. 3546 of 1978 decided on 6th of July, 1981. He has also relied upon the case of Ramphal Nayak in Cr. W.J.C. No. 56 of 1977. The contentions of the petitioner are supported by the aforesaid decisions. 7. The State of Bihar in Criminal Misc. No. 3546 of 1978 decided on 6th of July, 1981. He has also relied upon the case of Ramphal Nayak in Cr. W.J.C. No. 56 of 1977. The contentions of the petitioner are supported by the aforesaid decisions. 7. During the course of hearing of this case, the learned counsel appearing for the State was directed to obtain the case diary in ORDER :to ascertain as to whether there is any material in the case diary to show that the petitioner was dealing in foodgrains. The learned counsel appearing for State stated that the, petitioner was carrying on a business in foodgrains within the meaning of the ORDER :. A supplementary affidavit has also been filed on behalf of the petitioner stating therein that there is no material in the case diary to show that the petitioner was or is dealing in foodgrains. The contention of the petitioner are well founded. 8. In the circumstance, I am of the opinion that the continuance of the prosecution of the petitioner would be an abuse of the process of the court. In the result, the application is allowed and the impugned ORDER :dated 20th February, 1981 taking cognizance as well as prosecution of the petitioner is quashed.