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2006 DIGILAW 392 (JHR)

PAWAN KUMAR BURNWAL v. STATE OF JHARKHAND

2006-04-18

D.K.SINHA

body2006
Judgment : ( 1 ) THE petitioner Pawan Kumar burnwal has preferred this petition for quashing the cognizance order impugned dated 10/3/2004 passed by Sub-divisional judicial Magistrate, Bermo at Tenughat whereby and whereunder cognizance of the offence was taken under Section 7 of the essential Commodities Act against the peti tioner in Nawadih Police Station Case No. 133 of 2003, corresponding to G. R. No. 964 of 2003. ( 2 ) THE prosecution story is that the in formant Sanjay Vidyarthi Officer-in-Charge, nawadih Police Station with the police party intercepted a Tata 407 truck in the night on 26-12-2003 on chase and one Anil Marandi was arrested being the driver of the said Tata 407 truck, vide registration No. BR-13g-7292. He confessed that he had loaded 75 bags of wheat from the fair price shop of amrit Mahto, Indradeo Mahto and Mukund sao of village Hariadih at the instance of truck owner Rajendra Prasad to be sold in the black market. The truck with the 75 bags of wheat loaded thereon was seized in presence of the witnesses. It was further gath ered by the informant that the bags of wheat was loaded from the licensee shop of the petitioner Pawan Kumar Burnwal, son of the accused Balmukund Sao. The petitioner was also arrested in course of investigation of the case after some time, though the occur rence took place on 26-12-2003. ( 3 ) LEARNED counsel for the petitioner sub mitted that the petitioner is a licensee of fair price shop, vide licence No. 3 of 2003. The shop of the petitioner was regularly checked by the supply authorities. During checking on 2-1 -2004 subsequent to the alleged occurrence it was found that 16. 08 quintals of wheat allotted to the petitioners shop had been properly distributed to which a certifi cate was issued, vide Annexure 2 and 2/a of the petition. The prosecution failed to establish that the seized bags of wheat were the part of the stock of the petitioner and the petitioner had no concern at all either with the truck or bags of wheat loaded thereon. The prosecution failed to establish that the seized bags of wheat were the part of the stock of the petitioner and the petitioner had no concern at all either with the truck or bags of wheat loaded thereon. As a matter of fact, the wheat bags in question were being carried from Sasaram and the Sales Tax Officer of Sasaram Anchal had, on being asked by the Court, sent his report to the Sub-divisional Judicial Magistrate, berma at Tenughat, Annexure 3 and it was reported therein, vide letter No. 623 dated 16-1-2004 that the truck No. BR-13g-7292 was carrying 81 bags of wheat from sasaram to Goniyati against valid permit and that it was purchased by one Rajendra prasad from M/s. Ram Rahim Bhandar, shivsagar, Rohtas. In this manner annex ure 3 is clear that the petitioner is not at all concerned either with the 81 bags of wheat or the Tata truck aforesaid. ( 4 ) ADVANCING his argument learned counsel for the petitioner submitted that First information Report is silent as to which control order under Section 3 of the Essential commodities Act was violated by the petitioner to attract the offence under Section 7 of the Essential Commodities Act. ( 5 ) FINALLY it has been submitted that in terms of notification No. G. S. R104 (E) issued by Ministry of Consumer Affairs, Food And public Distribution, Department of Con sumer affairs, New Delhi dated 15-2-2002 it was ordered in the following manner. "whereas the Central Government is of the opinion that it is necessary and expedient to do so for securing the availability of commodities specified in the Order at fair prices through the country. Now, therefore, in exercise of the powers conferred by Section 3 of the Essential commodities. Act, 1955 (10 of 1955), the central Government hereby makes the following order. ""with the coming into effect of this Order any dealer may freely buy stock, sell, transport, distribute, dispose, acquire, use or con sume any quantity of wheat, paddy/rice, coarse grains, sugar, edible oilseeds and edible oils and shall not require a permit or license therefor under any order issued un der the Essential Commodities Act, 1955. "the order published in extraordinary is sue of the Gazette of India is Annexure 4 of the petition and this order has not been repealed as submitted. "the order published in extraordinary is sue of the Gazette of India is Annexure 4 of the petition and this order has not been repealed as submitted. Therefore, it is crystal clear that there was no bar in trade or movement of wheat and in that view of the matter also the present prosecution against the petitioner is barred in law. Admittedly, the pe titioner is having his business premises at village Narayanpur and that neither at harladih nor at Sasaram and, therefore, the confessional statement of the co-accused driver, though is not relevant under the Evidence act, is equally far from truth. ( 6 ) THE fact of the case as well as argu ment advanced on behalf of the petitioner indicates that First Information Report of nawadih P. S. Case No. 133 of 2003 dated 26-12-2003 as well as charge-sheet filed under Section 173 of the Code of Criminal procedure is silent as to which of the control order either of the Central Government or the State Government has been violated by the petitioner as formulated under Section 3 of the Essential Commodities Act which is punishable under Section 7 of the essential Commodities Act. This Court finds that the First Information Report as well as charge-sheet suffers from fundamental legal defect. Annexure 3 indicates that 75 bags of wheat loaded on Tata truck (BR-13g-7292)were being carried from Sasaram to goniyati against valid permit and the petitioner, therefore, appears in no manner concerned with such transportation, though admittedly, he is having a fair price shop at hariadih under Public Distribution System. The Court further finds that Ministry of consumer Affairs, Food And Public Distribution (Department of Consumer Affairs) vide notification no. G. S. R 104 (E) dated 15-2-2002 has withdrawn the restriction from the purchase, sell, transport, stocking of wheat be sides other foodgrains, oil seeds etc. and the same has been made licence free and no permit was required for such dealing, transporting, stocking, selling of wheat etc. ( 7 ) IN the result, this Court finds error in the cognizance order dated 10/3/2004 passed by the Sub-divisional Judicial Magistrate, bermo at Tenughat for the offence under Section 7 of the Essential commodi ties Act against the petitioner and another indradeo Mahto, in Nawadih P. S. Case No. 133 of 2003, corresponding to G. R. No. 964 of 2003 and hence, it is quashed. This peti tion is allowed. Petition allowed. --- *** --- .