Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 816 (JHR)

Awadh Kishore Sahay v. State of Bihar

2002-08-02

VISHNUDEO NARAYAN

body2002
JUDGMENT : Vishnudeo Narayan, J.- This application has been filed by accused petitioner under section 482 of the Cr.P.C. to quash the entire criminal proceeding of Putki P.S. Case No. 86 of 1991 corresponding to G.R. No. 1502 of 1991 including the order dated 4.12.1995 taking cognizance under section 7 of the Essential Commodities Act in this case now pending in the court of Special Judge, Dhanbad. 2. The facts giving rise to this application are as follows:- Informant J.D. Upadhyay, Project Officer, Moonidih Coal Washery, P.S. Putki,, District-Dhanbad of M/s B.C.C.L. lodged a written report before the O/C, Putki Police Station stating, inter alia, therein that more than 20 persons were engaged by the accused petitioner on 24.5.1991 at about 11.30 A.M. to commit theft of slurry from plot nos. 247, 248, 249 and 291 in village Gopinathdih and the aforesaid plots have already been acquired under the provisions of the L.A. Act, the possession of which was delivered to B.C.C.L by the L.A. Authorities on 29.6.1988. It has also been alleged that in terms of the judgment dated 17.8.1990 of the Apex Court slurry has been held to be coal and is a mineral and its regulation is within the exclusive jurisdiction of the Central Government and it belongs to the B.C.C.L. and it comes out from the washery belonging to the B.C.C.L. and only the B.C.C.L. is entitled to remove slurry from any land whatsoever. It has also been alleged that some interested persons are now lifting slurry illegally and without any authority from B.C.C.L. from the land nearby where slurry in accumulated and discharged from Moonidih Washery. On the basis of the written report a case under section 379 I.P.C. was initially instituted against the petitioner on 1.6.1991 at 12.00 hours but subsequently offence under section 7 of E.C. Act was added in the formal F.I.R. After investigation the charge sheet has been submitted under section 379 I.P.C. and under section 7 of E.C. Act. The learned Special Judge vide order dated 4.12.1995 took cognizance in this case under section 7 of E.C. Act for violation of the clause 3 and 10 of Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as 'the Order') and ordered for issuance of summons against the petitioners. 3. The learned Special Judge vide order dated 4.12.1995 took cognizance in this case under section 7 of E.C. Act for violation of the clause 3 and 10 of Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as 'the Order') and ordered for issuance of summons against the petitioners. 3. It has been submitted by tile learned counsel for the petitioner that for the purposes of constituting an offence under section 7 of the Essential Commodities Act (hereinafter referred to as 'the Act') there must be a violation of some order made under section 3 of the Act and prosecution of the petitioner under section 7 of the said Act for violation of clauses 3 and 10 of the Order is not only illegal rather is an abuse of the process of law. Elucidating his argument further it has been submitted that clause 3 of the Order is in respect of licensing of dealers from carrying on business of purchase, sale or storage for sale of any trade articles and clause 10 of the Order prohibits a licensee from contravening the terms and conditions of the licence issued under the said Order and there is no allegation against the petitioner that he being a dealer was carrying on business of purchase, sale or storage for sale of any trade article and thereby he has contravened any terms and conditions of the licence rather the allegation against the petitioner is of mere lifting of slurry and in this view of the matter no offence is at all made out under section 7 of the said Act. Placing reliance upon the principles enunciated in the case of Ramashish Prasad vs. State of Bihar (1994 (2) East Cr. C. 291 (Pat)], Mohan Kumar Singh and another vs. State of Bihar [1998 (1) E.F.R. 305], Urmila Pandey vs. State of Bihar [2000 East. Cr. Placing reliance upon the principles enunciated in the case of Ramashish Prasad vs. State of Bihar (1994 (2) East Cr. C. 291 (Pat)], Mohan Kumar Singh and another vs. State of Bihar [1998 (1) E.F.R. 305], Urmila Pandey vs. State of Bihar [2000 East. Cr. C. 800 (Pat) : 2000(4) PLJR 520 ], Ambika Prasad Singh vs. State of Bihar [2000 East Cr.C. 861 (Pat)] and Sidheshwar Pandey & another vs. State of Bihar and Others (C.W.J.C. No. 6231 of 1994-unreported decision of Patna High Court, Patna), it has been submitted that on the alleged date of the occurrence the Order aforesaid was not workable in relation to coal in view of the fact that in the Order storage limit had not been fixed either in relation to wholesale dealer or in relation to retail dealer. If has also been submitted that by notification dated 17.10.1985 storage limit has been fixed relating to different articles of retail dealers and wholesale dealers with respect to each commodity separately but so far coal is concerned, it has been simply stated in clause 13 of the notification that coal dealer means a person who at any time holds stock of coal in a quantity exceeding 10 quintals and it has no where been stated therein that what is the storage limit of wholesale dealer or a retail dealer and unless the storage limit of the wholesale dealer or a retail dealer is fixed, the Order aforesaid is not at all workable. Lastly it has been contended that the investigation in this case has been made by one Sri J.P. Das, who is Assistant Sub Inspector of Police which is in violation of clause 30 of the said Order which authorizes any police officer not below the rank of Sub Inspector to make search and seizure and investigate the case. 4. It has been submitted by the counsel for opposite party no. 3 that slurry is coal as laid down by the Apex Court in the year, 1990 and the petitioner was illegally got the slurry removed from the land in possession of B.C.C.L. and said slury belongs to B.C.C.L. and thereby the petitioner has been rightly prosecuted for the offence under section 379 I.P.C. and section 7 of E.C. Act. 5. 3 that slurry is coal as laid down by the Apex Court in the year, 1990 and the petitioner was illegally got the slurry removed from the land in possession of B.C.C.L. and said slury belongs to B.C.C.L. and thereby the petitioner has been rightly prosecuted for the offence under section 379 I.P.C. and section 7 of E.C. Act. 5. It appears from the perusal of the written report of the informant that there is allegation against the petitioner that he was getting the slurry removed dishonestly by his• hired men numbering twenty from the land of B.C.C.L. and the slurry which is coal as per the Apex Court bf3longs to B.C.C.L. The dishonest removal of the slurry no doubt makes out a case under section 379 I.P.C. but in view of the fact that cognizance for the offence under section 379 I.P.C. having been barred under section 468 of the Cr. P.C. due to the efflux of time, the learned court below has taken cognizance of the offence against the petitioner under section 7 of the Act for his prosecution. There is no material in the case diary that any slurry has been recovered and seized from the possession of the petitioner. There is also no' whisper in the case diary that the petitioner has stored slurry, a trade article, for sale. The petitioner also does not carry a business of purchase or sale of the slurry being a trade article. It has been held in the case laws referred to above that in the Order aforesaid, storage limit of coal/slurry has not been fixed either ill relation to wholesale dealer or in relation to a retail dealer. It is no where mentioned in the notification dated 17.7.1985 as to what is storage limit of the retail dealer or wholesale dealer regarding coal/slurry. Viewed thus, unless storage limit for the wholesale dealer or mtail dealer is fixed, the Order aforesaid will not be a workable one has been settled by this Court as well as the Hon'ble Patna High Court in catena of cases referred to above that where Unification Order is not workable, the accused cannot be prosecuted for violation of its provision. In this view of the matter no case under section 7 of the said Act is at all made out against the petitioner for violation of clause 3 and 10 of the Order aforesaid. In this view of the matter no case under section 7 of the said Act is at all made out against the petitioner for violation of clause 3 and 10 of the Order aforesaid. I see substance in the contention of the learned counsel for the petitioner. Further more, the investigation of this case has been conducted by Sri J.D. Das, Assistant Sub Inspector of Police which is against the provisions of the Order which has materially vitiated the proceeding. Thus, the whole prosecution initiated against the petitioner and the order dated 4.12.1995 taking cognizance are illegal and fit to be quashed. 6. The application is accordingly allowed and the entire criminal proceeding including the order dated 4.12.1995 taking cognizance in Putki P.S. Case No. 86 of 1991 corresponding to G.R. Case No. 1502 of 1991 against the petitioner is hereby quashed.