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2014 DIGILAW 1057 (PAT)

Udahran Sah v. State Of Bihar

2014-10-14

ASHUTOSH KUMAR

body2014
JUDGMENT : Ashutosh Kumar, J. Heard learned counsel for the petitioners and the State. 2. The petitioners are aggrieved by the order dated 23/03/2011 passed the learned Chief Judicial Magistrate, Katihar in G.R. Case No.150/2009 arising out of Pranpur P.S. Case No. 13/2009 whereby cognizance has been taken under Section 7 of the Essential Commodities Act. 3. On the self statement of Officer Incharge of Pranpur Police Station in the district of Katihar, the present case was lodged. A tractor was spotted moving in high speed. The vehicle was intercepted and it was found that 27 big drums of K.Oil were loaded on it. The driver of the tractor disclosed that K.Oil belongs to one Sarwan Agrawal and the same was loaded at his instance. On demand by the Officer Incharge of Pranpur Police Station, the driver of the vehicle produced original cash memo issued by Mahesh Trader Indian Oil Dealer in favour of the petitioners. Since 5955 liters of K.Oil were found loaded on a tractor, which was being taken through circuitous route it was presumed by the informant that K.Oil was being taken for selling it in black market. The vehicle as well as K.Oil was seized. The prosecution was launched against the petitioners for offence under Section 7 of the Essential Commodities Act read with Sections 413 and 414 of the Indian Penal Code. 4. Learned counsel for the petitioners submits that all the petitioners are Public Distribution System dealers, who were allotted K.Oil by the Sub-divisional Officer on the basis of allotment orders. Since the petitioners are the residents of the same village, therefore, an arrangement was made by them to have the K.Oil transported on one vehicle. A circuitous route was taken by the vehicle for saving the money and not for any other ulterior purpose. Learned counsel for the petitioners further submits that from the reading of FIR itself it appears that cash memo corresponds to the quantity of K.Oil loaded on the tractor but relying only on presumption, the present prosecution was launched. It has further been submitted by the learned counsel for the petitioners that such seizure of K.Oil could not have been made by the Officer Incharge of Pranpur Police Station, who is not the designated authority under the provisions of Fair Price Shop Order, 2007. It was, therefore, argued that the seizure by the Officer Incharge is illegal. It has further been submitted by the learned counsel for the petitioners that such seizure of K.Oil could not have been made by the Officer Incharge of Pranpur Police Station, who is not the designated authority under the provisions of Fair Price Shop Order, 2007. It was, therefore, argued that the seizure by the Officer Incharge is illegal. Lastly, it was submitted by the learned counsel for the petitioners that though the case was lodged under Section 7 of E.C. Act read with Sections 413 and 414 of the Indian Penal Code but ultimately cognizance has been taken only for the offence under Section 7 of the E.C. Act. 5. Learned counsel for the State, on the other hand, submits that it was not the presumption of the Officer Incharge but genuine apprehension that K.Oil which is an essential controlled commodity, was being taken to different destination only to sell in black market. The vehicle was intercepted in the midway which belonged to the petitioners, who were the PDS dealers and had obtained K.Oil under their respective allotments only for selling in fair price shop. 6. It appears from the record that the cash memo issued by the dealer, which was produced by the driver of the tractor on which K.Oil was loaded, the quantity of K.Oil in all three cash memos added up to the same quantity of K.Oil which was loaded on the tractor. The presumption of the Officer Incharge of such controlled item to have been attempted to be sold in black market does not appear to have any basis. The route map, which has been annexed with the petition, clearly shows that there are two routes leading to the destination; one being shorter than the other. The longer route having been chosen by he tractor driver would not ipso facto lead to the conclusion that it was for selling the K.Oil in black market. The explanation given by the petitioners, namely, choice of better route, though longer in kilometers, is highly probable. That apart, the offence remains in choate. The allegations do not make out any case under Section 7 of E.C. Act. It is not the case of the prosecution that the petitioners are not the PDS dealers or that the cash memos issued in their names by the dealers of K.Oil which were produced by the driver were not genuine. 7. The allegations do not make out any case under Section 7 of E.C. Act. It is not the case of the prosecution that the petitioners are not the PDS dealers or that the cash memos issued in their names by the dealers of K.Oil which were produced by the driver were not genuine. 7. Considering this aspect of the matter, this court is inclined to quash the order dated 23/03/2011 passed by learned C.J.M., Katihar in G.R. Case No. 150/09 arising out of Pranpur P.S. Case No. 13/2009 whereby cognizance for the offence under Section 7 of E.C. Act has been taken against the petitioners. Accordingly, the order dated 23/03/2011 is quashed. 8. The application is allowed. Application allowed.