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2007 DIGILAW 946 (ORI)

AKSHAYA KUMAR NAYAK v. STATE OF ORISSA

2007-12-19

A.K.SAMANTARAY

body2007
JUDGMENT : A.K. Samantaray, J. - Heard Learned Counsel for the Petitioners and the learned. 2. This CRLMC is being disposed of at the stage of admission of the consent of Learned Counsel for both parties. 3. Both the Petitioner have come with a prayer for quashing the order of cognizance dated 31.08.2006 passed by the learned JMFC, Pattamundai in 2(c) CC No. 2 of 2006. 4. The brief fact of the case is that the Petitioner No. 2 was the Kerosene Sub-wholesaler of Patrapur under Aul block in the district of Kendrapara and Petitioner No. 1 is her husband and it is alleged that Petitioner No. 1 was in-charge of Kerosene Sub-wholesale point. A raid was conducted in the business premises of the Petitioners and a number of irregularities were detected. It was further found that there was black marketing of kerosene to the tune of 2400 liters after making false entries in the sale account, issuance of excess or less quantity of kerosene to PDS dealers than the actual quantity allotted in their favour, tampering with cash memo, discrepancy of 1200 liters of kerosene in the tally register vis-a-vis the sale register of retailer Niranjan Panda. On the basis of these materials detected prosecution report (Annexure-2) was filed and the Collector, Kendrapara was pleased to confiseate the sale proceeds of the seized stocks of kerosene to the tune of Rs. 11,184/- and deposite the same in the Government treasury. The said Collector vide his order dated 14.11.2005 observed that the show cause reply which was filed by the Petitioner No. 2 in the confiscation proceeding was loghcal as well as cogent and that she was exonerated of all the charges u/s 6-A of the Essential Commodities Act 1955 proceeding and the State Enforcement squad report. The Collector further ordered issuing direction to the Civil Supply Officer, Kendrapara to refund the books of account of Petitioner No. 2 and also that cost of 1217 liters of kerosene oil vide Annexure-3. The Collector further ordered issuing direction to the Civil Supply Officer, Kendrapara to refund the books of account of Petitioner No. 2 and also that cost of 1217 liters of kerosene oil vide Annexure-3. The succeeding Collector after taking over the charge again cancelled the sub-wholesale licence of Petitioner No. 2 vide his order dated 22.03.200 and the Petitioner preferred an Appeal before the Commissioner-cum-Secretary, Food Supplies and consumer Welfare Department, Government of Orissa vide Appeal No. 52 of 2006 and vide order dated 19.05.2007 the order of the Collector, Kendrapara was set aside and it was observed that the renewal of licence of Petitioner No. 2 shall be considered in accordance with OPDS (Control) Order, 2002 vide Annexures 4 & 5 respectively. 5. As it appear from the prosecution report, which is under challenge so also the order of cognizance of the allegation of showing false issue of 2400 liters of Kerosene oil to five dealers, namely, Srikanta Nayak, Niranjan Panda, Kalpataru Dey, Indramani Sahu and Basanta Kumar Pradhan which are actually not issued and shown in the account book to have been issued falsely was sold in the black market. It is submitted by the Learned Counsel for the Petitioners that the fact is absolutely baseless as in the meantime out of the five dealers Basanta Kumar Pradhan, Kalpataru Dey, Srikanta Nayak and Indramani Sahu have sworn in and filed affidavits-entering appearance through Learned Counsel, Mr. Milan Kanungao and associates and in their affidavits they have stated that they had received the said kerosene oil and distributed the same to PDS card holders as per Government rate and Government order. They have also given the date of issue and receipt of the kerosene oil in their favour. The dealer/retailer-Niranjan Panda having expired in the meantime has not filed any affidavit. 6. The crux of the case against the Petitioners being the sale of kerosene oil in the black market maintaining false accounts having fallen to the ground by the sworn in affidavits of these Petitioners, the prosecution case lodged against the Petitioners u/s 7 of the Essential Commodities Act can hardly be sustained, as those four persons who have sworn affidavits would not depose against these Petitioners before the learned Magistrate in the said 2(c) C Case. 7. 7. In such view of the matter, the pendency of the prosecution case and allowing its proceeding to continue would be a futile exercise for no useful reason and as I find from the materials on record, this is a fit case where the jurisdiction of this Court u/s 482, Code of Criminal Procedure can be exercised and by exercising the said powers direct qushment of the order of cognizance dated 31.08.2006 passed by JMFC, Pattamundai in 2(c)CC No. 2/2006 so also the entire proceeding. 8. The CRLMC is allowed. 9. Issue urgent certified copy of the order as per rule. Final Result : Allowed