Judgment P.K.Deb, J. 1. The entire criminal proceeding against the abovenamed two petitioners who were accused in G. R, Case No. 1360/80, T. R. No. 1241 of 1984 arisen out of Giridih (T) PS Case No 22 (9)-80 under Section 7 of the Essential Commodities Act pending before the Subdivision Judicial Magistrate, Giridih have been challenged on the legal grounds, to the effect that criminal prosecution against the petitioners under the said Section of law is not maintainable. 2. According to the petitioners, Bimal Mica Mines, a proprietorship firm dealing in mill business belongs to the petitioner No. 2 and petitioner No. 1 being the brother of petitioner No. 2 has no concern with the business run by the petitioner No. 2. The other accued in the case, namely, M/s.Khetan Distributors and its owner Shri Arjun Lal Khetan is a stockist of Cement within the meaning of Bihar Cement Control Order, 1972 having his proprietorship firm situated at Asharganj Munger. According to the petitioners, M/s. Khetan Distributors received 500 bags of cement from Sone Valley Portland Cement Company Ltd. Japla, Palamau and was transporting the same to Asharganj on 2-9-1980, but on the way near Pachamb town within the district of Giridih, the truck carrying cement had gone out of order and it was necessitated for the repair of the truck to unload the Cement from the same and petitioners being the relation of Shri Arjun Lal Khetan on request, in the godown of petitioner No. 2 those 500 bags were unloaded and kept aiongwith Mica bags belonging to the petitioner No. 2. But, a raid was conducted by the Sub-Inspector, C. I. D. (Food) on 20-9-1980 and 579 bags were seized and filed an F. I. R. on which the prosecution was launched against the petitioners aiongwith M/s. Khetan Distributors and its owner, Arjun Lal Khetan aiongwith others. After investigation, chargesheet was submitted under Section 7 of the Essential Commodities Act read with Section 3 of the Bihar Cement Control Order 1972. 3. The allegation brought against the present petitioners is that they had kept and stored 579 bags of Cement without authority for the purposes of biackmarketing. Against Arjun Lal Khetan and his firm, charge was for storage of 500 bags of Cement at the premises of the petitioners without being Stockist having no proper licence. Charges were also framed accordingly. 3. The allegation brought against the present petitioners is that they had kept and stored 579 bags of Cement without authority for the purposes of biackmarketing. Against Arjun Lal Khetan and his firm, charge was for storage of 500 bags of Cement at the premises of the petitioners without being Stockist having no proper licence. Charges were also framed accordingly. According to the petitioners, only 500 bags of Cement were there as per the seizure list and the others 79 bags were having sica dust and not the cement. 4. On a petition being filed by Arjun Lal Khetan, co-accused restoration of possession of 500 bags of cement were refused by the Chief Judicial Magistrate, Giridih, but on revision, allowed restoration of possession of those bags on proper security by the order of Sessions Judge, Giridih. 5. The petitioners are now challenging that their prosecution in the case is bad in the eye of law even if the 79 bags belonging to the petitioners may be of Cement, taking the allegation in its face value whether 79 bags contained Cement or not cannot be decided by this Court and it is a matter of fact. 6. Mr. P. D. Agrawal, counsel for the petitioners has fairly conceded that his argument would be based taking those 79 bags to be also of cement and not of mica dust as per the allegation brought by the prosecution. 7. Bihar Cement Control Order, 1972 was made issued by the State of Bihar vide Notification No. G. S. R. 62, dated 10-6-1972 in exercise of the power delegated to it by notication No. S. O. 1844, dated 18-6-1966.Section 5 of the Essential Commodities Act, 1955 has, given authority to the Central Government to delegate power to the State Government reagarding controlling of the Essential Commdities. By the above Notification of the Central Government of 18th June, 1966 powers have been conferred under Sub-section (1) of Section 3 of the Essential Commodities Act to all Stats Governments to make Order in the matters specified in Clause (d), (e), (f), (g), (h), (i), (j), and Section 2 in relation to all commodities other than foodstuffs and fertilizers. So the Central Government has given power to the State ot Bihar to make Order in respect of commodities other than the food stuffs and as such Cement comes within that purview. So the Central Government has given power to the State ot Bihar to make Order in respect of commodities other than the food stuffs and as such Cement comes within that purview. In accordance with that Notification of the Central Government, the State of Bihar had issued Notification No. G. S R. 62, dated 10-7-1972 in the name of Bihar Cement Control Order, 1972 under Section 2 (c) of the Essential Commodities Act, the price of essential commodity is to be controlled, but S. O. 1844, dated 18-6-1966, the Central Government has not given any authority or not delegated any power under Section 3 (2-c) of the Essential Commodities Act for the purpose of controlling the price of the Essential Commodities other than the foodstuffs, hence State Government was not having the authority of controlling the price of Cement, in view of the above delegated power and as such price controlling of the Cement was not included within the Bihar Cement Control Order, 1972. 8. The allegations against the petitioners is that they had stored 579 bags of cement for the purpose of sale in black market, but when the price of the cement has not been controlled by the Bihar Cement Control Order, such allegation is not maintainable against the petitioners. 9. Then comes the next point under the said Control Order, by provisions 8 to 10, restrictions were imposed on distribution and sale of cement. By Clause 10, no person requiring the cement for his personal use shall acquire cement except under and in accordance with permit issued by the District Magistrate /Subdivisional Officer/Block Development Officer/Special Officer, incharge, Rationing, Patna. Thus the allegation might be that they have acquired the cement without any permit issued by the District Magistrate in violation ot Clause 10. There is also a saving clause under Section 14, by which the State Government by general or special order with the approval of the Central Government exempt any condition imposed by the Bihar Cement Control Order for the time being. By S. O. 483, dated 3-4-1973 by the powers conferred by Clause-14 of the Bihar Cement Control Order, 1972 , Governor of Bihar had exempted every person requiring the Cement for his personal use from the provisions of Clause-9 and 10 of the said Order. By S. O. 483, dated 3-4-1973 by the powers conferred by Clause-14 of the Bihar Cement Control Order, 1972 , Governor of Bihar had exempted every person requiring the Cement for his personal use from the provisions of Clause-9 and 10 of the said Order. Thus at the relevant time, there was exemption under Clause-14 and as such the petitioners cannot be held liable also for acquiring the Cement in question even if for personal use without permit. So under that Clauses 9 and 10 the Bihar Cement Control Order, the petitioners cannot he held liable legally. The definite case of the prosecution is that petitioners are not the Stockist nor they are distributors or Cement dealers. Those allegations are against M/s. Khaitan Distributors and Proprietors, so the petitioners cannot be held liable under Clause-3 of the Bihar Cement Control Order, 1972. 10. Thus the prosecution of the petitioners is not legally maintainable as per discussions above. 11. Another point has been raised by Mr. P. D. Agrawal, which has also got much force. Clause-13 of the Bihar Cement Control Order, 1972 has enumerated the designated Officers who are authorised for search and seizure. During the relevat period of 1980, in that Clause-13, S. I., C. I. D. (Food) was not inducted and as such at the relevant point of time, seizure was illegal as S. I., C. I. D. (Food) had no authority for search and seizure. Afterwards S. I., C. I. D. (Food) was also included within Clause 13, but at the relevant time, he was not there within Clause-13. So in that sense also the prosecution is bad. 12. In the result, this petition is allowed, and the criminal proceeding against the petitioners No. 1 and 2 in G. R. Case No. 1360 of 1980 arisen out of Giridih (T) PS Case No. 22 (9) 80 is hereby quashed. No order as to costs.