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2016 DIGILAW 522 (JHR)

Bittu Kumar Saw @ Bittu Saw v. State of Jharkhand

2016-03-28

RONGON MUKHOPADHYAY

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ORDER : Rongon Mukhopadhyay, J. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Giridih (M) P.S. Case No. 25 of 2014, including the order dated 30.8.2014, passed by the learned S.D.J.M, Giridih, by which cognizance was taken for the offence punishable under section 7 of the Essential Commodities Act. 2. An FIR was instituted, in which it was alleged that a vehicle was intercepted, which was going from Jamua to Giridih and 17 bags of rice loaded in the said vehicle were seized. It has further been alleged that the driver had disclosed that the rice was being transported to the house of the petitioner for the purposes of black marketing. 3. Based on the aforesaid allegations, Giridih (M) P.S. Case no. 25 of 2014 was instituted. Investigation revealed the allegation to be true and pursuant to submission of charge sheet, cognizance was taken by the learned S.D.J.M, Giridih on 30.08.2014 for the offence punishable under section 7 of the Essential Commodities Act. 4. Heard Mr. Yogesh Modi, learned counsel for the petitioner and Mr. Ashok Kumar, learned counsel for the State. 5. It has been submitted by the learned counsel for the petitioner that the petitioner has falsely been implicated in the present case although neither the petitioner is a fair price shop dealer nor he is in any way concerned with the rice, which was seized from the vehicle. It has further been submitted that neither in the FIR nor in the charge sheet, it has been mentioned as to which control order has been violated by the petitioner so as to prosecute him under section 7 of the Essential Commodities Act and in absence of the same, the entire criminal proceeding as against the petitioner deserves to be quashed and set aside. Further argument has been made that any attempt to commit an offence cannot be said to come within the purview of section 7 of the Essential Commodities Act. In support of his argument, learned counsel for the petitioner has referred to the case of Amit Kumar v. State of Jharkhand & Anr., reported in 2005 (1) East Cr. C 65 (Jhr) and Pawan Kumar Burnwal v. State of Jharkhand & Anr., reported in 2006 (3) JCR 137 (Jhr) as well as Cr. M.P. No. 2042 of 2012 (Satya Narayan v. State of Jharkhand). 6. Mr. C 65 (Jhr) and Pawan Kumar Burnwal v. State of Jharkhand & Anr., reported in 2006 (3) JCR 137 (Jhr) as well as Cr. M.P. No. 2042 of 2012 (Satya Narayan v. State of Jharkhand). 6. Mr. Ashok Kumar, learned APP, has submitted that it is not necessary to state the violation of the control order. Learned counsel submits that since the petitioner has committed an offence punishable under section 7 of the Essential Commodities Act, it can only be seen at the time of trial as to which order has been violated by the petitioner so as to prosecute him under section 7 of the Essential Commodities Act. Learned counsel has relied upon the judgment rendered in the case of Baleshwar Pandey v. State of Jharkhand, reported in (2008) 4 JCR 125 (Jhr). 7. The primary question, which arises in this application is whether in absence of any control order, which has been promulgated under section 3 of the Essential Commodities Act, the petitioner is liable to be prosecuted under section 7 of the Essential Commodities Act. It is an admitted fact that neither in the FIR nor in the charge sheet or in the order taking cognizance mention has been made about the order, which has been violated by the petitioner. In the case of Amit Kumar (supra) the entire criminal proceedings were quashed since the charge sheet did not specifically mention as to what provision of law was violated by the petitioner. In the case of Pawan Kumar Burnwal(supra), it was held that in absence of any control order either of the Central Government or the State Government, the FIR as well as the charge sheet suffers from fundamental legal defects and based on the said proposition of law, the entire criminal proceedings were quashed. Learned counsel for the petitioner has also referred to an order passed by this Court in Cr.M.P. No. 2042 of 2012, in which it was held that no offence under section 7 of the Essential Commodities Act is said to have been committed if there is only an attempt or preparation of committing such offence. 8. Learned counsel for the petitioner has also referred to an order passed by this Court in Cr.M.P. No. 2042 of 2012, in which it was held that no offence under section 7 of the Essential Commodities Act is said to have been committed if there is only an attempt or preparation of committing such offence. 8. The order of Baleshwar Pandey (supra) relied upon by learned APP in the facts and circumstances of the present case is not applicable as the petitioner in that case was running a fair price shop, which admittedly is governed under the Public Distribution System (Control Order), 2001. It, therefore, appears that when admittedly nothing has been stated either in the FIR or in the charge sheet as to which control order has been violated so as to prosecute the petitioner for the offence under section 7 of the Essential Commodities Act, the entire criminal proceedings as against the petitioner if allowed to continue, shall result in a miscarriage of justice. More so, when the facts are considered in view of proposition of law enunciated above. 9. Having regard to the factual as well as legal aspects, as enumerated above, this application is allowed and the entire criminal proceedings in connection with Giridih (M) P.S. Case No. 25 of 2014, including the order dated 30.8.2014, passed by the learned S.D.J.M, Giridih, by which cognizance has been taken for the offence punishable under section 7 of the Essential Commodities Act, is hereby quashed.