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Madhya Pradesh High Court · body

2017 DIGILAW 296 (MP)

Harish Kumar Ojha v. State of M. P.

2017-02-28

N.K.GUPTA

body2017
ORDER 1. The applicant has preferred the present petition under section 482 of the Code of Criminal Procedure (for brevity “the Code”) for quashing of the FIR registered at Crime No.270/2014 at Police Station Gormi, District Bhind (M.P.) for offence under section 3/7 of the Essential Commodities Act, 1955 (in short “the EC Act”). 2. The facts of the, in short, are that on 25.9.2014 at about 10:40 am on getting an information Sub-Inspector Ramkumar Bhagat checked a loading vehicle MP30 G0635 in which 37-38 bags of rice were found loaded. The vehicle was driven by one Shambhudayal s/o Ramavtar Kushwah and when he was asked about the details of transportation of rice then he informed that such rice was loaded in the vehicle at Doniapura lead by applicant Harishkumar Ojha and it was to be unloaded at Mehgaon and a sum of Rs.400/- was to be paid as freight. On various bags of rice, M.P. Corporation Ltd. was printed and the bags were stitched with head stitching. Under these circumstances, sub-inspector Shri Ramkumar Bhagat registered a case under section 3/7 of the EC Act. 3. I have heard the learned counsel for the parties at length. 4. The learned counsel for the applicant has submitted that the lead society under Public Distribution System as constituted by M.P. Public Distribution System (Control) Order, 2009 (for brevity “the Control Order, 2009”) has to work and if any executive of lead society violates any provision of that order then punishment and penalty can be imposed according to Clause 11 of the Control Order, 2009 and the police was not competent to register a case under the EC Act. It is also submitted that it is provided in the Control Order, 2009 itself that on violation of the provisions of the Control Order only the Collector can initiate the proceeding. In this connection, the attention of this Court was invited to Clause 11(5) of the Control Order, 2009. It is also submitted that Sub-Inspector, namely, Shri Ramkumar Bhagat could not register a case of the EC Act on his own and he was not competent to do so. The learned counsel for the applicant has referred the order passed by the Single Bench of this Court in various cases like Umesh Kumar Choubey v. State of M.P. [2000 Criminal L.J. Page No.1760, Hema Bhadoriya v.. The learned counsel for the applicant has referred the order passed by the Single Bench of this Court in various cases like Umesh Kumar Choubey v. State of M.P. [2000 Criminal L.J. Page No.1760, Hema Bhadoriya v.. State of M.P. [2008(1) EFR 198] and order dated 13.3.2015 passed in MCrc No.8836 / 2013 Jodh Singh and another v. State of M.P. and another. In this connection, the order passed in case of Sanjay v. State of Bihar [1990 EFR 23] was also referred. 5. In the present case, if contention of the learned counsel for the applicant is considered in the light of the various provisions of the EC Act and the Control Order, 2009 then it appears that the Control Order is provided in such a fashion that the ordinary violation of various procedural provisions of the Control Order shall be punished according to penal provisions of Clause 11 of the Control Order, 2009 and for that purpose it is mentioned in Clause 11(5) that if condition of the fair price shop is violated then the Collector can initiate an action under section 7 of the EC Act. Clause 11(5) of the Control Order, 2009 is reproduced as under: 11. Punishment and Penalty:- (1) XX XX XX (2) XX XX XX (3) XX XX XX (4) XX XX XX (5) In the event of a fair price shop violating the conditions of the central order or this order, the Collector can initiate action under section 7 of the Essential Commodities Act, 1955. In the present case, it is not a matter of violating the conditions of contract as given to the fair price shopkeeper or such type of other institutions. If any violation has been done of any control order passed under the EC Act then it is for the court to consider as to whether any offence of EC Act is made out or not. 6. In the aforesaid cases of Jodh Singh (supra), and Hema Bhadoriya (supra), the Single Bench of this Court has observed that no crime of EC Act was found to be constituted and violation of various conditions of ration shop etc. were to be governed according to Clause 11 of the Control Order, 2009. In that case, the competency was governed by Clause 11(5) of the Control Order, 2009. 7. were to be governed according to Clause 11 of the Control Order, 2009. In that case, the competency was governed by Clause 11(5) of the Control Order, 2009. 7. According to Clause 11(5) of the Control Order, 2009, if any licencee or shopkeeper violates the condition on which a ration shop was given to him then it is the Collector who has to proceed under section 3/7 of the EC Act to lead a prosecution. But, in the present case, it is apparent that rice which was provided to lead shop for its distribution amongst the various ration shops of that area and instead of distributing that rice to the ration shops of that area, rice was being allegedly transported to Mehgaon, which was away from the territorial area of Doniapura lead shop and hence, it is not a simple violation of various conditions as mentioned in the Control Order, 2009, but it is a case of smuggling of ration provided to lead shop for distribution amongst the consumers through various rations shops and hence the alleged overt act of the applicant falls within the purview of defeating the object of the Control Order, 2009 and thus for such violation, prima facie, offence under section 3/7 of the EC Act shall be made out and therefore, the provisions of Clause 11 including 11(5) of the Control Order, 2009 shall not be applicable in the present case. 8. So far as the competency for prosecution under EC Act is concerned, it is mentioned in section 10A that offence under EC Act is cognizable. The provision contained under section 10A is reproduced as under: 10A. Offences to be cognizable -- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) every offence punishable under this Act shall be cognizable. When any offence is declared to be cognizable in the light of the Code then the Police can register a crime and proceed with the investigation of that crime. Also, section 11 of the EC Act gives a right to the police to prosecute a person for the offence committed under the EC Act. Section 11 of the EC Act is reproduced as under: 11. Also, section 11 of the EC Act gives a right to the police to prosecute a person for the offence committed under the EC Act. Section 11 of the EC Act is reproduced as under: 11. Cognizance of offences -- No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code (45 of 1860) or any person aggrieved or any recognized consumer association, whether such person is a member of that association or not. If provisions of sections 10A and 11 of the EC Act are read simultaneously then the police officer is a public servant as defined under section 21 of IPC and when the offence is cognizable, it is for the police to register the case and to prosecute the culprit of offence under section 3 / 7 of the EC Act and hence on considering the factual position of this case where it is alleged against the applicant that being an authority of lead shop he gave a huge quantity of rice for smuggling and rice was loaded in the loading vehicle of Shanbhudayal Kushwah so that it could be transported to Mehgaon which was not within the jurisdiction of lead shop Doniapura, then the aforesaid orders as referred by the learned counsel for the applicant cannot be applied in the present case due to difference of facts. 9. On the basis of the aforesaid discussion, prima facie, it appears that offence under section 3 / 7 of the EC Act is made out against the applicant and concerned Police Officer was competent to register a case and to investigate it further, hence, it is not a good case in which inherent powers of this Court under section 482 of the Code may be invoked in favour of the applicant. 10. Consequently, the present petition as filed by the applicant under section 482 of the Code is hereby dismissed. 11. In the result, the interim stay dated 4.12.2014 also stands vacated. The arrest of the accused is a part of the investigation and vide order dated 4.12.2014 arrest of the applicant was prohibited and therefore, impliedly, the investigation was stopped. 10. Consequently, the present petition as filed by the applicant under section 482 of the Code is hereby dismissed. 11. In the result, the interim stay dated 4.12.2014 also stands vacated. The arrest of the accused is a part of the investigation and vide order dated 4.12.2014 arrest of the applicant was prohibited and therefore, impliedly, the investigation was stopped. Hence, the investigating officer is directed to complete the investigation and to file final report according to the result of investigation. 12. Since no appreciation of evidence has been done in the present order, however, no prejudice shall be caused to the trial Court, if charge sheet is filed.