Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 735 (JHR)

Ram Kishan Agarwal v. State of Jharkhand

2006-06-21

D.K.SINHA

body2006
Order The petitioner has preferred this petition under section 482 of the Code of Criminal Procedure for quashing the order impugned dated 3.7.1993 passed by the Special Judge (E.C. Act) in G.R. Case No. 1661 of 1991 arising out of Ghatsila P.S. Case No. 91 of. 1991. whereby and whereunder the substance of accusation for the offence under Section 7 of the E.C. Act was explained to the petitioner and now the case is pending in the Court of Sub-Divisional Judicial Magistrate, Jamshedpur. 2. The brief fact of the case is that two persons were intercepted carrying 100 liters' of kerosene oil who on interrogation confessed that they had purchased it from the shop of the petitioner. The informant, Officer-in-charge of the said police station, visited the shop of the petitioner under the Public Distribution System and on interrogation it was stated by the petitioner that though he was having a licence no. 81 of 1985 but the same was deposited in the office of the Supply Department for its renewal. On physical verification, according to the stock register, the stock of the Kerosene oil though should have been 530 liters on 27.7.1991 but it was found 550 liters i.e. 20 liters in excess. It was further gathered that a day, before 400 liters of kerosene oil was supplied to the petitioner by the local dealer but only 200 liters was found entered in the stock register of the shop and the sale register was maintained only up to 25.7.1991 and it was not certified. Even there was no display board about the stock position on the prominent place and no cash memo was produced and the petitioner explained that he did not maintain cash memo. A case was instituted against the petitioner for the violation of Bihar Kerosene Dealers (Licencing) Orders 1965, punishable under section 7 of the E.C. Act. The police after investigation submitted charge-sheet against the petitioner for the said offence. Cognizance of the offence was taken' on 3.2.1992 and thereafter the substance of accusation was explained vide impugned order dated 3.7.1993. 3. Learned counsel appearing for the petitioner submitted that the Special Commodities (Special Provisions) Act. 1981 which came into force on 1st day of September. 1982 was only for five years under section 1 (3) of the said Act arid such duration was extended by the further Act viz Essential Commodities (Special Provisions) Continuance Act. 3. Learned counsel appearing for the petitioner submitted that the Special Commodities (Special Provisions) Act. 1981 which came into force on 1st day of September. 1982 was only for five years under section 1 (3) of the said Act arid such duration was extended by the further Act viz Essential Commodities (Special Provisions) Continuance Act. 1987 for further 10 years which lost its force on 31st August. 1996. It is further alleged that even• after expiry of the said provision under the Special Provision Act, 1981 the pending cases were tried by the Special Judge only. Thereafter the Jharkhand. High Court, Ranchi vide notification dated 11.5.2001 was pleased to transfer all the cases from the file of the Special Judge (E.C. Act) either to the C.J.M. or A.C.J.M. or S.D.J.M. to take cognizable of the offence and to try cases under the Essential Commodities Act. 1955. As a matter of fact the S.D.J.M. had no power to try the cases related to E.C. Act prior to 31st August, 1996 under the Special Commodities (Special Provisions) Act. 1981 and so in the case of the Sub-Divisional Judicial Magistrate, Ghatshila was hot empowered by the State Government as required under section 12-A(2b) of the Essential Commodities Act. 1955. Learned counsel pointed out that instead of empowering, the Sub-Divisional Judicial Magistrate, Ghatshila by the State Government. the High Court has empowered him by the aforesaid notification and it was communicated to all concern vide memo no. 1320-59 dated 11.5.2001 (Annexure-5). 4. Learned counsel highlighted that since Sub-Divisional Judicial Magistrate. Ghatsila has not been empowered under section 12-A(2b) of the Essential Commodities Act the entire proceedings of taking cognizance as well as explaining the substance of accusation are void, ab initio and without jurisdiction and the same is liable to be quashed. Advancing his argument, learned counsel submitted that Bihar Kerosene Oil Dealers (Licencing) order. 1965 was repealed by the Bihar Trade Articles (Licences Unification) Order, 1984 as mentioned in the Schedule-3, Clause 32 of the said order and that Bihar Kerosene Oil Dealers (Licencing) Order, 1965 stands at serial no. 3. In view of the above provision of law, the petitioner has not contravened any provisions under the repealed order so as to attract the offence punishable under section 7 of the E.C. Act. Similarly,. 3. In view of the above provision of law, the petitioner has not contravened any provisions under the repealed order so as to attract the offence punishable under section 7 of the E.C. Act. Similarly,. no sanction has been obtained for prosecuting the petitioner under proviso to clause 6 of Bihar Essential Articles (Display of Price and Stock) Order, 1986. Lastly learned counsel submitted that several cases have been admitted by this Court being Cr. M.P. No. 343 of 2003 and Cr. M.P. No. 1519 of 2003 in which the jurisdiction of the Sub-Divisional Judicial Magistrate has been challenged (Annexures 6 and 6/1). 5. Upon careful perusal of the annexure-3 I find the cognizance of the offence under section 7 of the E.C. Act was taken without specifying the violation of the control orders by the petitioner, Ram Kishan Agarwal and two other accused persons. Similarly S.D.J.M. vide order dated 30.1.1996 while explaining substance of accusation has not specified as to which provision of the Control Order/Unification Order was violated and for such violation punishable offence is made out against them, Charge-sheet No. 16234 which was submitted in the instant case against the petitioner and two other accused persons is also silent about the Control Order/ Unification Order alleged to be violated by the petitioner and two other co-accused so as to attract punishable under section 7 of the E.C. Act. 6. Under the facts and circumstances I find that the S.D.J.M., Ghatshila has acted not only beyond his jurisdiction but also failed to specify any violation of the Control Order/Unification Order by the petitioner and other accused persons while explaining substance of accusation to them in summons trial case and in my view in absence of the allegation with regard to the contravention of any specific provision of Control Order/Unification Order the prosecution of the petitioner is not maintainable. There is merit in this petition under section 482 of the Code of Criminal Procedure. The entire criminal prosecution in G.R. No. 1661 of 1991 arising out of Ghatshila P.S. Case No. 91 of 1991 is quashed. This petition is allowed.