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2010 DIGILAW 1612 (PAT)

Vinod Kumar Sinha @ Vinod Kumar v. State Of Bihar

2010-07-21

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of, an order dated 29.4.1997 passed by Special Judge, Essential Commodities Act, Begusarai in Bakhri PS Case No. 102 of 1995. By the said order, the learned Special Judge had taken cognizance of offence under Section 7 of the Essential Commodities Act. 2. Short fact of the case is that on 3.11.1995, a truck loaded with rice was intercepted by the Block Supply Officer, Bakhri and thereafter, on an allegation of violation of provisions contained in Bihar Trade Articles (Licenses Unification) Order, a first information report was lodged vide Bakhri PS Case No. 102 of 1995 against six accused persons including the petitioner. Petitioner was alleged as one of the conduit in the occurrence. It was alleged that he was acting as middle man. After registering FIR, the case was investigated and finally ctarge- sheet was submitted by the police on an, allegation of commission of offence under Section 414 of the Indian Penal Code and Section 7 of the Essential Commodities Act. After filing of the charge- sheet, by the impugned order i.e. order dated 29.4.1997, the learned Special Judge took cognizance of aforesaid offences and directed for summoning the accused persons. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. In this case, on 3. 10.2001. this Court granted time to the learned State counsel for taking instruction in the matter. Thereafter, on 8.10.2001, since the counter-affidavit was filed on behalf of the State, the case was admitted for hearing and Lower Court Record was also called for. While admitting, this Court directed that till any order is passed, further proceeding in Bakhri PS Case No. 102 of 1995, pending in the Court of Special Judge, Essential Commodities Act, Begusarai shall remain stayed and order of stay is still continuing. 4. Shri B.D.Sanjay, learned counsel appearing on behalf of the petitioner, has submitted that the rice in question was being carried from Delhi to Silliguri. The consigner of the rice was one Manohar Lal Mahendra Kumar, who has been made accused No. 1 in the FIR and it was to be delivered to,M/s. Ajay Kumar Anil Kumar. Naya Bazar, Silliguri. 4. Shri B.D.Sanjay, learned counsel appearing on behalf of the petitioner, has submitted that the rice in question was being carried from Delhi to Silliguri. The consigner of the rice was one Manohar Lal Mahendra Kumar, who has been made accused No. 1 in the FIR and it was to be delivered to,M/s. Ajay Kumar Anil Kumar. Naya Bazar, Silliguri. It was submitted that while the rice was in transit, the driver of the truck in question due to jaam on the High Way, wanted to go to Silliguri through different route and thereafter, the driver wanted to ascertain the actual root. On the basis of materials available in case diary, Shri S.D. Sanjay submits that during investigation also, several witnesses had stated that the driver of the vehicle was enquiring about the route for Silliguri and in the meanwhile, the truck in question was intercepted by the Block Supply Officer. Learned counsel for the petitioner, referring to paragraph-20 of the case diary, submits that even during the investigation, the Investigating Officer had perused the transport receipt and chalan issued by consigner which corroborates the fact that the rice was intercepted by the Block Supply Officer in its transit to Silliguri. It was further submitted that after the seizure of the rice, the cosigner approached this Court by invoking its writ jurisdiction by filing Cr. WJC No. 800 of 1995. Learned counsel has produced a photo copy of certified copy of the order dated 22.12.1995 passed in Cr. WJC No. 800 of 1995, which is kept on the Lower Court Record. 5. In view of order dated 22.12.1995, the seized goods were directed to be released in favour of the consigner. It was submitted that Mahendra Kumar was one of the partner of the Manohar Lal Mahendra Kumar Firm, who was.accused No. 1 in the FIR. It was argued that without any material, though the petitioner was neither consigner nor consignee, he was made accused without any basis. The said order was passed subject to the final result of the confiscation proceeding and criminal case also. Learned counsel for the petitioner has also referred to Annexure-3 to the petition, which is a communication issued by Government of. India, whereby restriction on the movement of food grains was abolished for the time being. The said order was passed subject to the final result of the confiscation proceeding and criminal case also. Learned counsel for the petitioner has also referred to Annexure-3 to the petition, which is a communication issued by Government of. India, whereby restriction on the movement of food grains was abolished for the time being. It was argued that since there were no limit or restriction on the movement of the rice, there was no reason for the informant to seize the said rice or to institute FIR. It was submitted that in absence of any limit or restriction, it cannot be said that any provision of Unification Order was violated. 6. Accordingly, it was submitted that the order of cognizance as well as entire proceeding, so far as petitioner is concerned is liable to be set aside. 7. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, after perusal of the case diary, has also not disputed that witnesses had stated regarding the enquiry made by the driver for ascertaining the route for Silliguri. However, she has opposed the prayer of the petitioner on the ground that order of cognizance may not be interfered with by this Court, while exercising power under Section 482 of the Code of Criminal Procedure. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is true that while hearing a petition under Section 482 of the Code of Criminal Procedure, it is not required for this Court to examine the case diary and other materials at the initial stage of a criminal proceeding, but in view of the fact that the very order of cognizance was stayed by this Court long back in the year 2001, it was not proper to refuse the prayer of the petitioner to examine the materials including the case diary. The materials indicates that the rice in question was being transported to its consignee to Silliguri from Delhi by the consigner M/s. Manohar Lal and Mahendra Kumar. The Court is unable to find as to which provision of the Unification Order was violated particularly on the strength of Annexure-3 to the petition, whereby restriction of movement and storage of rice and wheat was abolished by the Government of India for the time being. 9. The Court is unable to find as to which provision of the Unification Order was violated particularly on the strength of Annexure-3 to the petition, whereby restriction of movement and storage of rice and wheat was abolished by the Government of India for the time being. 9. In view of the facts and circumstances s indicated above particularly on the ground that matter remained pending for such a long time without any progress, it is desirable to exercise inherent power in favour of the petitioner and as such order of cognizance dated 29.4.1997 passed by the Special Judge, Essential Commodities Act, Begusarai, in Bakhri PS Case No. 102 of 1995 is hereby set aside and petition stands allowed.