Research › Browse › Judgment

Patna High Court · body

1991 DIGILAW 339 (PAT)

Kanhaiya Sah v. State Of Bihar

1991-09-02

B.N.SINHA, OM PRAKASH

body1991
Judgment B.N.Sinha, J. 1. This application is directed against the order dated 10th April 1989 passed by the Special Judge, (E.C. Act), Samastipur in G.R. Case No.1 of 1989 arising out of Samastipur Town P.S. Case No. 522 of 1988 by which he has taken cognizance of the offence under Sec. 7 of the Essential Commodities. Act 1955 (hereinafter to be referred to as the Act) against the petitioner and directed him to stand the trial. 2. The facts relevant for the disposal of the case may be briefly stated. The petitioner happens to be the sole Proprietor of a firm known as M/s. Manoj Coal Company, Bahadurpur, Samastipur and is a licensee as such under the Bihar Trade Articles (Licenses Unification) Order 1984 (hereinafter to be referred to as the Order). On 31.12.1988, Sri Shyam Kishore Thakur- Opposite party No. 2 entered into the business premises of the petitioner and held inspection and seized the total quantum of cooking coal and flake coal found in the business premises and two volumes of cash memo of the firm. The opposite party No. 2 submitted a written report to the Officer Incharge, Samastipur Town Police Station for the prosecution of the petitioner under Sec. 7 of the Act alleging therein that there was contravention of terms and conditions contained in Clause. 5(ii) and Clause 7 of the Licence granted to the petitioner under the Order. The said written report was treated as the F.I.R. and the case was instituted on the basis thereof under Sec. 7 of the Act against the petitioner. The F.I.R. alongwith report is Annexure-l to this petition. 3. The Police, after usual investigation, submitted charge sheet (Annexure-4) against the petitioner-on the basis of which the cognizance of the case has been taken against the petitioner which is the impugned order in the present case. 4. The petitioner filed a petition under Sec. 482 of the Code of Criminal Procedure 1973 (hereinafter to be referred to as the Code) before this Court for quashing the impugned order and the prosecution of the petitioner which was admitted. Thereafter, it was listed for hearing before Hon ble B.N. Agrawal, J and it was taken up on 22nd February 1990. Thereafter, it was listed for hearing before Hon ble B.N. Agrawal, J and it was taken up on 22nd February 1990. The Hon ble Judge found that the point being raised in the present case is covered by a decision of a Bench of this Court in Ram Chandra Pansari V/s. The State of Bihar but the correctness of that decision has been doubted by a Bench in Criminal Misc. No. 19 of 1984 and the Bench has referred the case for hearing by a larger Bench. It was accordingly ordered that the present case may be put up for further hearing on 7th May 1990 awaiting the decision of the Full Bench. Thereafter, it was found by the Hon ble Judge that before Criminal Misc. No. 19 of 1984 could be heard by a larger Bench, the same was withdrawn. Under the circumstances, on 28.6.1990, the Hon ble Judge ordered for placing this case before a Division Bench. Thus, this case has been placed before us. 5. Learned counsel for the petitioner placing reliance on the case of Ram Chandra Pansari (Supra) has submitted that the present case has been initiated on the basis of search and seizure made by opposite party No. 2 who was Deputy Collector cum-Additional Land Acquisition Officer, Samastipur on the alleged date of occurrence and he was not an Officer authorised under Clause 30 of the Order to search and seizure nor there is anything on the record to indicate that he has been empowered by the Government to do so and hence, the search and seizure made by him is illegal and the petitioner cannot be prosecuted on the basis of that illegal search and seizure. In Criminal Miscellaneous No. 19 of 1984, it was observed by a Bench of this Court as follows: "A learned single Judge, hearing this case, expressed doubt with regard to the law laid down in Ram Chandra Pansari V/s. The State of Bihar (1988 PLJR 623) arid ordered it to be listed before a Division Bench. Learned counsel for the State has brought to our notice the case of Narendra Kumar V/s. The State of Bihar & Ors. (1977 B.B.C.J. 570), in which somehow a contrary view has been taken by a Division Bench of this Court. So, we consider it desirable that this case should be heard by a larger Bench." 6. Learned counsel for the State has brought to our notice the case of Narendra Kumar V/s. The State of Bihar & Ors. (1977 B.B.C.J. 570), in which somehow a contrary view has been taken by a Division Bench of this Court. So, we consider it desirable that this case should be heard by a larger Bench." 6. Of course, the case of Ram Chandra Pansari (Supra) was with regard to the contravention of Clause 12 of the Bihar Motor Spirit and High Speed Diesel Oil Licensing Order 1966. But in that case also, search and seizure was made by an Officer not authorised under Clause 12 of that Order and on that basis it was held that the search and seizure was illegal and on the basis of illegal search and seizure, the proceeding cannot be initiated under Sec. 7 of the Act and hence the trial was quashed in that case. 7. But as mentioned above, before Criminal Miscellaneous No. 19 of 1984 could be heard by a larger Bench, the same was withdrawn. 8. The facts of the case of Narendra Kumar V/s. The State of Bihar (Supra) were quite different and the search and seizure in that case were challenged on the ground that the Officer conducting the search and making the seizure has not recorded that he had reasons to believe that there was contravention of the provisions of the terms of Bihar Food Grain Dealers Licensing Order; and it was held that the search and seizure cannot be held to be illegal on that ground. But it was not challenged in that case that the Officer conducting the search and making the seizure had no power to do so. In the case of Ram Chandra Pansari (Supra) the power of the Officer who had conducted the search and made the seizure was challenged on the ground that he was not an Officer empowered or authorised to do so it has been challenged so in the present case. Hence it cannot be said that a contrary view has been taken by a Bench of this Court in the case of Narendra Kumar (Supra). 9. In the present case, the search conducted and the seizure made by opposite party No. 2 was absolutely illegal and without jurisdiction and. Hence it cannot be said that a contrary view has been taken by a Bench of this Court in the case of Narendra Kumar (Supra). 9. In the present case, the search conducted and the seizure made by opposite party No. 2 was absolutely illegal and without jurisdiction and. hence, it cannot form the basis of initiation of the prosecution against the petitioner as he was not one of the Officers mentioned in Clause 30 of the Order nor there is anything on the record to indicate that he has been empowered by the Government to conduct search and make seizure. Hence, on this ground, the impugned order taking cognizance of the case against the petitioner on the basis of that illegal search and seizure cannot be sustained, 10. The impugned order has been also assailed on the ground that the learned court below took cognizance of the case solely on the basis of the charge sheet submitted in the case but the facts mentioned in the charge sheet do not disclose any offence. Hence, the impugned order cannot be sustained. The relevant part of the impugned order reads as follows:- Matter in other language Thus it is evident from the impugned order that the cognizance of the case has been taken by the Special Judge (E.C. Act), Samastipur on the perusal of the charge sheet alone and no other document was perused by him at the time of taking cognizance of the case. The Charge sheet which is Annexure- 4 to this application, discloses the following facts: Matter in other language But it is apparent from the perusal of the charge sheet quoted above that it does not contain the facts disclosing any offence. Under the circumstances, taking cognizance of the offence on the basis of such a charge sheet is bad in law in view of the provisions of Sec. 11 of the Act which mentions that no court shall take cognizance of an offence punishable under the Act except on a-report in writing of the facts constituting such offence made by a person who is a public servant denned u/s. 21 of the Indian Penal Code. I am fortified in my view by a Bench decision of this Court in Googan Lal Marwari and another V/s. The State of Bihar. For this reason also the impugned order cannot be sustained. 11. I am fortified in my view by a Bench decision of this Court in Googan Lal Marwari and another V/s. The State of Bihar. For this reason also the impugned order cannot be sustained. 11. For these reasons, the application is allowed and the order dated 10.4. 1989 of the Special Judge (E.C. Act), Samastipur in G.R. Case No. 1 of 1989 taking cognizance u/s. 7 of the Act against the petitioner on the basis of the charge sheet dated 31.3.1989 is quashed and consequently, the prosecution of the petitioner in that case is also quashed.