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2006 DIGILAW 424 (JHR)

Asharful Haque v. State Of Jharkhand

2006-04-21

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure for quashing the order impugned dated 3.3.2003 of the cognizance of the offence under Section 420/34 of the Indian Penal Code as also under Section 7 of the Essential Commodities Act against the petitioner in Gumla P.S. Case No. 102 of 2000. 2. The brief fact of the case as contained in the written report of the informant Peter Barwa is that on 12.6.2000 he intended to take L.P.G. connection from M/s. Ujala Gas Agency, Gumla and when he enquired, the owner of the said Gas Agency conveyed the estimated cost of Rs. 4000/- for new gas connection. He immediately made over Rs. 4000/- to Md. Mustafa Alam assuming that he was the owner of Ujala Gas Agency. The informant was asked to come after an hour so that domestic Consumer Gas Card could be made available to him. Pursuant to such direction when the informant again came to the Ujala Gas Agency one of the petitioners Mustafa Alam offered that he would give the receipt of the account of Rs. 1900/- only for the gas connection. The offer was opposed and the informant demanded back his money. The informant further stated that he had delivered 40 notes of the denomination of Rs. 100/- each with the serial number and that the owner used to obtain excessive rate to the tune of Rs. 4000/- for each connection as against the Government rate of Rs. 1900/- and in this manner he had been cheating the public for illegal gains. 3. The learned Counsel submitted that the accused Mustafa Alam was taken into custody and while pressing his bail petition a break up of Rs. 4000/- was given which included the cost of two gas refills, security deposit, cost of gas oven and other petty charges and considering the above, he was admitted to ball by the Special Judge on 23.6.2000 as per Annexure 2 of the petition. 4. The learned Counsel further submitted that the police without jurisdiction under the special Act illegally entered into the establishment Ujala Gas Agency seized Rs. 4000/- from the shop. 4. The learned Counsel further submitted that the police without jurisdiction under the special Act illegally entered into the establishment Ujala Gas Agency seized Rs. 4000/- from the shop. Similarly, it is settled law that special Act shall prevail upon the general law but in the present case when there is special and specific provision of independent law, cognizance of the offence under Section 420/34 of the Indian Penal Code as against the petitioners is not maintainable. 5. The learned Counsel relied upon Annexure 3 wherein it was accepted in principle by the State Government (Department of Food, Supply and Commerce) vide letter No. PRA-6-Gas-01 of 2000 that Bihar Trade Articles (Licencing Unification) Order, 1984 would not be considered to be maintainable with respect to the storage of LPG and, therefore, no licence was required for the LPG distributor under Bihar Trade Articles (Licencing Unification) Order, but upon perusal of Annexure 3 as aforesaid it is evident that the said letter purported to be issued by the Food Supply and Commerce Department of Bihar Government is unabated. 6. On the other hand, the informant opposite party No. 2 appeared through Vakalatnama and filed Interlocutory Application No. 733 of 2005 stating, inter alia, that he has entered into compromise with the petitioners and has settled the matter outside the Court and that the police case was instituted against the petitioners due to misunderstanding that he had charged excess amount for new gas connection, but later on, he realized that he misconstrued. 7. Having regard to the facts and circumstances of the case, it is admitted that criminal prosecution against the petitioners was launched on the written report before the police by a private informant and pursuant to that case was registered under Section 420/34 of the Indian Penal Code as well as under Section 7 of the Essential Commodities Act. There is substance in the argument of the defence that Section 420/34 of the Indian Penal Code is not maintainable in view of special provision of law under Essential Commodities Act. 8. The next point which requires conscious consideration is that the prosecution failed to point out before the court below as to which provision of control order or unification order as framed under Section 3(1) of the Essential Commodities was violated by the petitioners so as to attract an offence punishable under Section 7 of the Essential Commodities Act, 1955. 8. The next point which requires conscious consideration is that the prosecution failed to point out before the court below as to which provision of control order or unification order as framed under Section 3(1) of the Essential Commodities was violated by the petitioners so as to attract an offence punishable under Section 7 of the Essential Commodities Act, 1955. Therefore, the cognizance of the offence taken under Section 7 of the Essential commodities Act, 1955 (hereinafter referred to as an Act) against the petitioners is not maintainable and hence not sustainable in the eyes of law. 9. There being merit in the present petition, the order of taking cognizance as well as entire criminal prosecution against the petitioners is quashed. This petition is allowed.