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2000 DIGILAW 306 (PAT)

Surendra Kumar v. State Of Bihar

2000-02-23

P.K.DEB

body2000
Judgment 1. This writ petition under Articles 226/227 of the Constitution of India has been preferred by the above-named petitioner for quashing the entire proceedings arising out of Balia PS Case No. 26/96 under Section 7 of the Essential Commodities Act pending in the Court of Special Judge, EC Act, Begusarai. 2. The petitioner holds a licence for carrying on business in wholesale Fertilizer under the provisions of the Fertilizer Control Order, 1985 as there was complain throughout the State regarding anomalies of distribution of fertilizers. Several Committees were constituted by the State Government for making necessary inspection of the business premises of the fertilizer dealers and retailers in the State and to report about illegalities or irregularities found in the course of enquiry. According to the petitioner one of such Committee was constituted for Begusarai consisting of four members, namely, Shri C.S. Mishra, Executive Magistrate, Sri Shyama Prasad, Sub-Divisional Agriculture Officer, Begusarai, Shri Ashok Maharaj, Assistant Agriculture Officer, Begusarai headed by Shri Ganesh Rajak, Joint Director, Agriculture (Planning), Bihar. The Committee came for inspection in the petitioners shop on 5th of February, 1996 but the shop was closed on that day as a marriage was being solemnised on that day in the petitioners family. Accordingly, inspection was made on the next date i.e., on 6th February, 1996. The Committee had verified the licence, stock register, etc., of the petitioners firm and also made physical verification of the godown. Besides inspecting the petitioners premises the business premises of four retail dealers dealing in Fertilizer, namely, Ashirbad Enterprises, Komal Unnat Krishi Kendra, Kissan Seva Kendra and Rajnish Khad Bhandar were also inspected. These retailers admitted of purchase of fertilizer/Urea from the petitioner but those retailers failed to produce sale register, cash-memo, etc., and accordingly the Committee send a report to the Joint Secretary, Department of Agriculture, Patna on 7th February, 1996 seeking instructions for taking necessary action against the retail dealers and in the report nothing anomaly could be found against the petitioner wholesale dealing in business of Fertilizer. The copy of the report has been annexed with this writ petition as Annexure-1. 3. The copy of the report has been annexed with this writ petition as Annexure-1. 3. On 9.2.1996, the respondent No. 2 Shri Shyam Prasad, Sub-Divisional Agriculture Officer, Begusarai, who was a member of the Committee filed a case on 9.2.1996 against the petitioner alleging that on 5th February, 1996 he made inspection of the petitioners firm and during the said inspection he found the following irregularities (i) no sign-board was outside the business premises in the house of the petitioner, (ii) there was no facility for storing Fertilizer, (iii) on the cash-memos there were no signature of the purchasers and in one such cash-memo of Devi Prasad Poddar, Proprietor, Kissan Seva Kendra, Balia informed that he had never purchased stock from the petitioners firm, (iv) several agriculturists of the locality informed the informant that the petitioners shop was closed for last 2-3 months but the petitioner went on lifting Urea from the Government go-down. The copy of the FIR has been annexed as Annexure-2 to this petition. 4. The contention of the petitioner is that the criminal case filed by the respondent No. 2 is totally misconceived and filed with an ulterior motive only to harass the petitioner. It was mala fide on the face of it. It is the contention of the petitioner that the informant i.e., the respondent No. 2 was a member of the Committee, who had inspected the premises of the petitioner on 6th February, 1996 when on 5th February, 1996, the shop was closed. The same thing has been mentioned in the report itself as contained in Annexure-1. In that view of the matter, the whole contentions of the respondent No. 2 that he inspected the shop of the petitioner on 5.2.1996 is totally a false and myth one. So the very foundation of the criminal case against the petitioner is based on no inspection at all on 5.2.1996 as per admission made by the respondent No. 2 being a member of the Committee in the report as contained in Annexure-1. Regarding the allegations being made it is contended that as per law no display of sign-board outside the shop is necessary. Regarding lack of space for storing of Fertilizer, it is the contention of the petitioner that he has got a go-down of about 3,000 sq. ft. Regarding the allegations being made it is contended that as per law no display of sign-board outside the shop is necessary. Regarding lack of space for storing of Fertilizer, it is the contention of the petitioner that he has got a go-down of about 3,000 sq. ft. in the ground floor itself and the same had been inspected and visited by the members of the Committee including the informant-respondent No. 2 on 6th February, 1996 and also by the officials during the previous month. Regarding the other allegations that in the cash-memos there were no signatures of the purchasers of the same is totally in contradiction of the report of the Committee as contained in Annexure-1. The cash-memos were found intact with the signature of the purchasers and as such, the retail purchasers premises were inspected by the Committee and recommendation was made to take action against them as they did not keep proper records of such purchasers. In respect of the retailer Kissan Seva Kendra, Balia Road it is the contention of the petitioner that there are two Kissan Seva Kendra one situated at Balia Bazar, another at Station Road, Chowk Balia. Devi Prasad is proprietor of Balia Bazar, whereas Ramji Yadav is the proprietor of Kissan Seva Kendra, Station Road, Chowk, Balia to whom the petitioner had sold the fertilizer and this fact was admitted by Ramji Yadav before the Committee. Regarding the last allegation that the shop premises of the petitioner was closed for last two or three months are belied from the record itself when it could be found that the stock register of the petitioner had been verified in the shop premises itself by the officials in the month of November, December, 1995 and January, 1996. Copies of such verification had been annexed as Annexure-3 to the writ petition. 5. Copies of such verification had been annexed as Annexure-3 to the writ petition. 5. When mala fide has been pleaded against the informant-respondent No. 2 and when proper explanation had been given regarding the allegation being given from the side of the petitioner and that no inspection was made on 5.2.1996 as per records itself then notice was sent to the respondent No. 2 by order of this Court and one copy of the writ petition alongwith notices had been served hand to hand on the respondent No. 2 as per order of this Court at the admission stage itself but still the respondent No. 2 did not appear or file any counter-affidavit. Then the writ petition was admitted and again notices were served on the respondent No. 2 but he did not appear, to refute the charges of mala fide brought against him and the veracity of the allegations brought in the criminal case as contained in Annexure-2, thus, the contention of the petitioner remained unchallenged. 6. The very foundation of the allegation in the criminal case is found to be false from the very fact that on 5.2.1996 there could not be any inspection in the shop premises of the petitioner as the shop was closed on that day and the same fact gets support from Annexure-1 the report of the Committee itself of which respondent No. 2 was also a member. When the very foundation of the criminal case is shaken by falsity then such allegations against the petitioner should be construed as a mala fide one and, as such, abuse of the process of the law. The respondent No. 2 had been given chances again and again to refute the allegations of mala fide against him but he did not dare to come to this Court to refute the charges. Being a member of the Committee he cannot blow hot and cold at the same time. Annexure-2 is totally in contradiction to Annexure-1. Thus, it is a fit case where this Court should interfere although in such sort of cases. Courts are very slow in interfering with the investigation of the case but when mala fide could be proved by records itself and when it could be found that the whole case has been filed with an ulterior motive then this Court must interfere to check the abuse of the process of law. 7. Courts are very slow in interfering with the investigation of the case but when mala fide could be proved by records itself and when it could be found that the whole case has been filed with an ulterior motive then this Court must interfere to check the abuse of the process of law. 7. In the result, the writ petition is hereby allowed and the whole criminal proceedings in Balia PS Case No. 25/1996 now pending before the Special Judge, EC Act, Begusarai under Section 7 of the Essential Commodities Act is hereby quashed. No order as to costs. Writ petition allowed.