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2007 DIGILAW 940 (JHR)

Arvind Kumar Agarwal v. State of Jharkhand

2007-12-18

D.K.SINHA

body2007
JUDGMENT D.K. Sinha, J.- This Criminal Revision is directed against the order impugned dated 5.6.2007 passed by the learned Chief Judicial Magistrate, Lohardagga whereby and whereunder the petition filed under Section 239 Code of Criminal Procedure for the discharge of the petitioner was rejected in Lohardagga PS. Case No.187 of 2005 corresponding to G.R.No.442 of 2005. 2. The prosecution story in short was that the informant Block Supply Officer, Lohardagga, pursuant to the direction received from the S.D.O., Lohardagga on telephone raided M/s Arvind Automobile, i.e. petrol pump with the witnesses and collected the samples of petrol and diesel in two separate glasses each on 21.9.2005 on the allegation of adulteration in the oil and seizure list was prepared. On the written report of the informant Block Supply Officer, a police case was instituted for the alleged offence under Section 420 LPC as also under Section 7(3) of the Essential Commodities Act against the petitioner Proprietor, Manager and the sales man of the petrol pump M/s Arvind Automobile. It was further alleged that on physical verification major variation in the stock was found contrary to the entry in the Stock Register in the lesser quantity. It was further alleged that the details regarding explosives and trade articles were not displayed at the Notice Board and that the Stock Register was not certified by any competent officer, a copy of the seizure list was given to the Manager. 3. Mr. Ajit Kumar learned Counsel submitted that the prosecution against the petitioner and others was not maintainable for the alleged offence under Section 420 I.P.C. and under Section 7 of the Essential Commodities Act. Admittedly, the police case was instituted for the offence under Section 7 (3) of the Essential Commodities Act but the police submitted charge-sheet without disclosing as to which provision of Control Order or Unification Order has been violated as framed under Section 3(i) of the Essential Commodities Act so as to call for punishment under Section 7 of the Essential Commodities Act, 1955. He relied upon the view taken by this Court in Asharful Haque Ors. vs. State of Jharkhand & Ors., reported in 2006(3) JCR 225 (Jhr.) [: 2007(2) JLJR 424 ]. 4. He relied upon the view taken by this Court in Asharful Haque Ors. vs. State of Jharkhand & Ors., reported in 2006(3) JCR 225 (Jhr.) [: 2007(2) JLJR 424 ]. 4. Learned Counsel pointed out that the criminal prosecution of the petitioner for the alleged offence under Section 7(3) of the Essential Commodities Act is hit by Section 468 Code of Criminal Procedure since the offence alleged to have been committed by the petitioner was punishable with the imprisonment only for one year whereas the cognizance of the offence was taken on 24.2.2007 as against the alleged date of occurrence on 21.9.2005 beyond the prescribed period of limitation of one year. In view of that matter, the cognizance of the offence was bad in law, therefore, not sustainable. 5. Learned Counsel exhorted that Block Supply Officer i.e. the informant of the case was neither a gazetted officer nor a competent officer under Clause 4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention •of Malpractices) Order, 1998. Admittedly, the entire exercise was done by officer of the rank of Block Supply Officer who had undertaken search and seizure alongwith an officer of the rank of Inspector of Police and therefore, the initiation of the prosecution against the petitioner and others was itself bad in law. Similarly, the provisions of Clause 4(c) of the said Order read with the provisions of Section 100 of the Code of Criminal Procedure relating to search and seizure were not followed. Even there was no authorization in writing except an explanation that the informant had received direction from the S.D.O., Lohardagga who was a competent officer. Advancing his argument learned Counsel assailed the prosecution of the petitioner on the ground that the report of the Forensic Science Laboratory, Ranchi was not clear in the examination of the separate glasses containing petrol and diesel respectively marked as A & B that it were adulterated and the technician observed, "The physicochemical properties of the above seized petrol and diesel oil samples marked A and B were found markedly different from the specifications prescribed for standard petrol and diesel oil respectively. It is, therefore, concluded that the above described petrol and diesel oil samples were adulterated. However, the exact nature of adulterant could not be ascertained." 6. It is, therefore, concluded that the above described petrol and diesel oil samples were adulterated. However, the exact nature of adulterant could not be ascertained." 6. The above report was silent about the nature or kind of adulterant except suspicion raised by the Forensic Science Laboratory without any positive finding of the chemical examination of both the material exhibits. 7. Learned A.P.P. Mr. Khan opposed the contention. 8. Having regard to the facts and circumstances of the case, I find substance in the argument advanced on behalf of the petitioner that his criminal prosecution is time barred under Section 468 Code of Criminal Procedure as the cognizance of the offence was taken beyond the period of' limitation. l further (find substance in the argument of the learned Counsel that Block Supply Officer as well as the Inspector of Police were not a competent person under Clause 4 of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 and the other provisions of the said Clause were not followed including sampling of the product which required six samples of one litre each of the Motor Spirit and one litre each of the High Speed Diesel as per requirement of Clause 5(i) (ii) (iv) & (v) of the said Order for its chemical test. I further find that the report of the Forensic Science Laboratory, Ranchi is also not speaking as the nature of adulterant alleged to be mixed with petrol and diesel was not disclosed. 9. In the facts and circumstances, the criminal prosecution of the petitioner cannot sustain and the impugned order passed by the learned C.J.M., Lohardagga in G.R. No.442 of 2005 on 5.6.2007 is set aside by discharging the petitioner herein. 10. This Cr. Revision is allowed.