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2004 DIGILAW 236 (PAT)

Braj Kishore Prasad Sinha v. State Of Bihar

2004-02-26

MRIDULA MISHRA

body2004
Judgment 1. By the Court.Heard learned counsel for the petitioner and the State. 2. The petitioner has filed this application under Section 482 of the Criminal Procedure Code (hereinafter referred to as the Cr PC) for quashing the entire criminal proceeding including the order dated 26.6.1992, passed by the Special Judge, E.C. Act, Nawada in Special Case No. 2 of 2002 by which the cognizance has been taken under Section 7 of the Essential Commodities Act (hereinafter referred to as the E.C. Act). It appears that on 20.3.2002, on the basis of written report of Anuj Kumar, the Executive Magistrate-cum Assistant District Supply Officer, Nawada Warsaliganj PS. Case No. 28 of 2002 was registered under Section 7 of the E.C. Act against the petitioner who was posted as Assistant Godown Manager, Nawada and 14 others, named accused persons. 3. The allegation was that on 20.3.2002 on the direction of the District Magistrate, Nawada the informant reached at the residence of Sunil Sultania @ Pappu Kumar and he found two tyre cart loaded with wheat and rice were being unloaded and stored in the godown of Sunil Kumar Sultania. It also came to the knowledge of the informant that Braj Kishore Prasad, the Deputy Manager, S.F.C. has released all the articles in absence of the Block Supply Officer. The informant interrogated the petitioner, who gave in writing that he has delivered wheat to different dealers, whose name have been mentioned in the FIR. The specific allegation against the petitioner as stated in the FIR that he has delivered food grains to the dealers in absence of the Block Supply Officer, as such the petitioner in conspiracy with other accused have committed an offence punishable under Section 7 of the E.C. Act. 4. On the basis of this FIR the investigation was made and after submission of the chargehseet cognizance was taken under Section 7 of the E.C. Act. 5. The petitioner has challenged the order taking cognizance on following grounds : 1. The life of the special provision under the Act lapsed in the month of July, 1998 and there is no storage limit with respect to rice and wheat. Storage of any particular quantity does not constitute any offence. 2. Under Clause 31(2) of the Unification Order provision of Unification Order shall not apply to employees of the State Food Corporation. 3. Storage of any particular quantity does not constitute any offence. 2. Under Clause 31(2) of the Unification Order provision of Unification Order shall not apply to employees of the State Food Corporation. 3. The State Government vide its letter No. 2467 dated 29.5.1998 directed that before launching prosecution against employee of S.F.C. prior sanction of Food Commissioner is necessary which has not been obtained in the present case. There is no circular issued by the Government to gave delivery in presence of the Block Supply Officer. 4. Unless there is violation of any order under Section 3 of the E.C. Act, one cannot be punished under Section 7 of the E.C. Act. 6. A counter affidavit has been filed on behalf of the State wherein it has been stated that quashing application is not maintainable in law as well as on facts. The criminal proceeding including the order taking cognizance by the Special Judge, Nawada against the petitioner is sustainable as there is allegation of black marketing of the Antyodaya Food grains supplied to the citizens below the poverty line. In reply to the first ground on which the petitioner has assailed his prosecution, it has been stated by the counsel appearing for the State that the cognizance has been taken against the petitioner by Special Judge, Nawada as per Notification No. 227- A dated 7.5.2000 of Patna High Court and in exercise of power conferred by Section 12 A of the E.C. Act, 1955. The Government of Bihar has vested with the power to all Sub-divisional Judicial Magistrate of the district headquarter as well as the subdivision under Section 261(i)(c) of the Code of Criminal Procedure for the summary trial of the offence in contravention of any order made under Section 7 of the E.C. Act, 1955. 7. The counsel for the petitioner has drawn my attention towards Annexure-4 which is the direction of the Managing Director, Bihar State Food & Civil Supply Corporation by which a direction has been issued that if any irregularity is found in relation to delivery and distribution of the food articles by the authorities of the S.F.C. in such a case a before proceeding with the prosecution against the employees of the S.F.C. the sanction from the Food Commissioner is necessary and must be taken. In the present case no such sanction has been taken. In the present case no such sanction has been taken. As such the prosecution of the petitioner is bad. The petitioner has also stated that under Clause 31(2) of the Unification Order the provision of Unification Order will not apply to the employees of the S.F.C. and as such prosecution of the petitioner as well as the order taking cognizance under Section 7 of the E.C. Act is illegal. A decision of this Court has also been annexed as Annexure-3 wherein in similar circumstances the entire criminal proceeding has been quashed. 8. The counsel appearing for the State has not been able to produce any notification to this effect that the employees of the S.F.C. can make delivery of food grants to the dealers only in presence of the Block Supply Officer. It has been stated by the counsel appearing for the petitioner that deliver was made in a bona fide manner. Simply because the delivery was made by the petitioner in absence of Block Supply Officer, it will not amount to violation of any order under Section 3 of the E.C. Act punishable under Section 7 of the E.C. Act. 9. From the facts stated in the FIR and the submissions made by the petitioner no offence under Section 7 of the E.C. Act is made out against the petitioner. It has been decided by this Court in catena of decision that if bare perusal of the FIR the facts stated in the FIR do not disclose commission of any offence. The continuation of criminal proceeding in such case will amount to an abuse of the process of the Court. The present case comes in the category of such cases in which the FIR could not disclose any offence under Section 7 of the E.C. Act. 10. In the facts and circumstances of the case the entire criminal proceeding as well as the order taking cognizance is quashed. 11. In the result this application is . allowed.