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2013 DIGILAW 240 (ORI)

Kamalakanta Sahoo v. State of Orissa

2013-07-26

B.R.SARANGI

body2013
JUDGMENT Dr. B.R.Sarangi, J. The petitioners in this application under Section 482 of the Code of Criminal Procedure seek to quash the criminal proceeding initiated in Crl. Trl. (G.R.) Case No.289 of 2004 arising out of Simulia P.S. Case No.96 of 2004 pending in the court of learned J.M.F.C., Soro for the offence under Section 6-A of the Essential Commodities Act. 2. The case of the petitioners in nut-shell is that they are permanent residents of Chhatrapur under Simulia P.S. in the district of Balasore. They are two brothers. They have purchased 27 bags of rice amounting to 11.5 quintals for their family consumption from different cultivators. While they were carrying rice in their own Mini Truck bearing Registration No.OR-OIC 4843 ownership of which stands in the name of petitioner no.1, on the way Simulia Police seized the said vehicle as well as rice only on the ground that it was BPL rice meant for P.D.S. (Public Distribution System) and accordingly lodged F.I.R. which has been registered as Simulia P.S. Case No.96 of 2004 under Section 7 of the Essential Commodities Act, 1955, hereinafter to be called as “the Act” in short, against unknown persons. 3. The prosecution story as reveals from the F.I.R. lodged by OIC Simulia P.S. is that on 31.07.2004 at 10.40 P.M. on getting information from reliable source at 9 P.M. that one Mini Truck (407) is coming from Balikhanda towards Ranital loaded with BPL rice which is meant for only poor people as provided by the Government for the purpose of illegal selling in black market. Accordingly, he made Station Diary Entry No.5/97 and then proceeded to Balikhanda with police force. On the way at Gourgadi Chhak he found one Mini Truck bearing No. OR-OIC 4843 coming from Balikhanda and instructed the driver of the said vehicle to stop. The driver immediately stopped the vehicle and ran away towards paddy field and concealed himself in the darkness of the night and could not be apprehended in spite of thorough search. Thereafter, the O.I.C. made weighment of rice by calling weighman from nearby village with his weighing instrument which amounted to 11.50 quintals. From the activities of the absconding driver and from his confidential enquiry, he suspected the said rice to be meant for PDS and which the accused driver was being taken by for black marketing. Thereafter, the O.I.C. made weighment of rice by calling weighman from nearby village with his weighing instrument which amounted to 11.50 quintals. From the activities of the absconding driver and from his confidential enquiry, he suspected the said rice to be meant for PDS and which the accused driver was being taken by for black marketing. Such act comes within the purview of Section 7 of the Act and accordingly, he seized the same, prepared seizure list and started investigation. 4. On the basis of the report furnished by the I.O. the case was instituted under Section 6-A(1) of the Act which was registered as Misc. Case 14 of 2004 and on the basis of the notice issued, petitioner no.1-Kamalakanta Sahu, claiming to be the owner of the seized rice appeared and moved for release of the vehicle and the rice seized. Pursuant to interlocutory order passed on 28.04.04, vehicle as well as rice was released on deposit of Rs.25,000/-and Rs.5,000/-respectively subject to principal condition mentioned amongst others to produce the seized items as and when directed. After hearing the Collector, Balasore on 3.12.2004 passed an order stating as follows: “7. So it is established that the rice so seized/carried are free sale rice. Though rice is an essential commodity as per provision of the Essential Commodity Act 1955 there is no limit for purchase/sale, storage/transportation of free sale rice within the country. 8. Hence the instant proceeding under Section 6-A is dropped. Nizarat Officer, Collectorate Balasore to refund deposited Rs.25,000/-(Rupees twenty-five thousand) to the owner of the vehicle/depositor on proper identification. Similarly, Inspector of Supplies Simulia Block to refund Rs.5,000/-(Rupees five thousand) to claimant of the rice seized”. 5. On the aforesaid backdrop of the situation, Mr. S.K. Das, learned counsel for the petitioner vehemently urged that in a proceeding under Section 6-A(1) of the Act, when the competent authority has come to a definite finding that the rice so seized/carried out are for free sale and though the rice is an essential commodity as per the provision of the Act, and there is no limit for purchase/ sale, storage/ transportation of free sale rice within the country and the proceeding so initiated under Section 6-A(1) of the Act has been dropped, no case is made out against the petitioners pursuant to the F.I.R. lodged in Annexure-2. He further submitted that the F.I.R. lodged on the presumption of the informant I.O. that the rice so seized was meant for PDS and the accused driver was taking it for black marketing and such act comes under the purview of Section 7 of the Essential Commodities Act, is thoroughly misconceived one. In support of the aforesaid contention, he has relied upon a judgment of this Court in the case of Ramesh Chandra Garabadu Vrs. State, 1986(I) OLR-187 and submitted that the petitioners are neither dealers nor retailers and therefore, the proceeding so initiated under Section 7 of the Act cannot be sustainable and liable to be quashed. 6. Learned counsel for the State urges that this is not the proper stage where this Court can interfere and quash the proceeding and as such prays for dismissal of the CRLMC. 7. Examining the rival contentions of the parties and considering the fact that the petitioners are neither dealers nor retailers of the PDS commodity, the question for consideration is whether the proceeding under Section 7 of the Act initiated against them are sustainable or not. Similar question came up for consideration before this Court in Puspa Ranjan Patel Vrs. State of Orissa 1994 (II) OLR 301, (1994) 7 OCR-538 where due to conflict of two single Judge judgments reported in (1992) 5 OCR 158 (Pravash V. State) & (1993) 6 OCR 309 (Radhesyam V. State), 1993 (II) OLR 21, the matter was referred to the Division Bench on the question “whether the Orissa Kerosene Control Order 1962 applies to a consumer or not ?” After due adjudication, the Division Bench in Puspa Ranjan Patel (supra) held as follows: ”we, therefore, answer the question by stating that the Orissa Kerosene Control Order, 1962 does not apply to a consumer. We, however, make it clear that a person who poses to be a consumer but is really found to be doing business in kerosene would be covered by the Control Order, and that would depend upon the facts of each case. We, however, make it clear that a person who poses to be a consumer but is really found to be doing business in kerosene would be covered by the Control Order, and that would depend upon the facts of each case. The matter will now go back to the learned single Judge for disposal of the revision application on its own merits” In the aforesaid decision, it was made clear that the Orissa Kerosene Control Order, 1962 does not apply to a consumer but this Court has clarified that a person who poses to be a consumer but is really found to be doing business in kerosene would be covered by the Control Order. 8. Applying the same analogy, in the present case the petitioners being neither ‘dealers’ nor ‘retailers’ and the seized rice was carried by them through a Mini Truck for their personal consumption by collecting the same from different cultivators, it cannot be construed that they were carrying the rice for black marketing. Apart from the same, in the proceeding under Section 6-A(1) of the Act under Annexure-1, the Collector, Balasore, who is the competent authority, has come to a definite finding vide order dated 03.12.2004 that the rice so seized were carried for free sale. Though rice is an essential commodity as provided under the Act, there is no limit to purchase/sale, storage/ transportation of free sale rice within the country and accordingly proceeding having been dropped, direction was given for refund of Rs.25,000/-to the owner of the vehicle/depositor towards the seizure of the vehicle as well as Rs.5,000/-towards seizure of rice. This clearly makes out a case that the rice seized by the informant is not PDS rice rather there is an inevitable conclusion that the rice seized was purely private one and was taken for personal consumption of the petitioners. 9. On perusal of the F.I.R. it is made clear that without any basic foundation on the presumption of the informant that rice so seized is meant for PDS and the driver was taking the same for black marketing is absolutely misconstrued one and as such, no case is made out against the petitioners under Section 7 of the Act. Under similar circumstances, this Court in Surendranath Swain Vrs. Under similar circumstances, this Court in Surendranath Swain Vrs. State of Orissa 2005 (Supp.) OLR362 having held that since there was no material whatsoever to show that the petitioner was carrying the kerosene seized, for business purpose, quashed the criminal proceeding initiated under Section 7 of the Act. 10. In the case in hand, no material is available on record to show that the petitioners were carrying rice seized for business purpose. They are neither ‘dealers’ nor ‘retailers’ and they are ‘consumers’ of the seized rice, which had been purchased for their own family consumption. Therefore, initiation of proceeding pursuant to the F.I.R. lodged under Section 7 of the Act cannot be sustainable. 11. In catena of decisions of the Hon’ble apex Court, it has been held time and again that if the complaint or F.I.R. does not make out a case, this Court can quash the proceeding in exercise of power conferred under Section 482 of the Cr.P.C (See: 1992 (Supp.1) SCC 335= AIR 1992 SC 604 State of Haryana Vrs. Bhajan Lal and others. 12. To give more emphasis, in case of M/s. Pepsi Foods Ltd. And others V. Special Judicial Magistrate and others, AIR 1992 SC 128, the Supreme Court has held as follows: “… No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. xxxx” 13. Considering the facts and circumstances of the case and the law laid down by this Court as well as the apex Court, I am of the opinion that on perusal of the F.I.R. prima facie no case under Section 7 of the Act has been made out against the petitioners as there is neither any violation of control order nor any provision of the Essential commodities Act. Consequently, I hold that ends of justice would be better served if the proceeding under the Act is quashed in exercise of the inherent power of this Court under Section 482 Cr.P.C. in order to prevent the abuse of the process of the Court. Consequently, I hold that ends of justice would be better served if the proceeding under the Act is quashed in exercise of the inherent power of this Court under Section 482 Cr.P.C. in order to prevent the abuse of the process of the Court. Accordingly, the proceeding initiated against the petitioners in Crl. Trl. (G.R.) Case No.289 of 2004 pending in the court of learned J.M.F.C., Soro is quashed and CRLMC is allowed. CRLMC allowed.