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2021 DIGILAW 747 (JHR)

Shyam Prasad v. State of Jharkhand

2021-09-13

SANJAY KUMAR DWIVEDI

body2021
JUDGMENT : Heard Mr. Sheo Kumar Singh, the learned counsel for the petitioner and Mr. P. D. Agarwal, the learned counsel for the State. 2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has filed this petition for quashing of the order dated 20.07.2020 passed by the learned court of Chief Judicial Magistrate, Palamau in connection with Satbarwa P.S. Case No.43/2020 corresponding to G.R. No.1146/2020 registered under sections 188 IPC and under Section 7 of Essential Commodities Act whereby cognizance of offence under sections 188 IPC and under section 7 of the Essential Commodities Act has been taken against the petitioner, pending before the learned court of S.D.J.M., Palamau. 4. An F.I.R has been lodged on 28.03.2020 against the petitioner by the informant Block Supply Officer stating therein that on a tip of the petitioner, proprietor of Pankaj Agency, Satbarwa used to sale grocery items on high prices keeps close his shop and used sale the same from his house and to verify the informant reached at the shop of the petitioner at about 11:30 AM where petitioner appeared and rate of the grocery items were not displayed by the petitioner at his shop and the petitioner was asked about his godowns to which he disclosed about his five godowns and in all five godowns grocery items were found, which was seized by preparation of separate seizure list and was handed over to the petitioner itself on Zimmanama and on inquiry it was found that the petitioner was selling the grocery items on high price on this fact this FIR was lodged against the petitioner. 5. Mr. Sheo Kumar Singh, the learned counsel for the petitioner submits that there is no allegation and no ingredient of section 188 and section 7 of the E.C. Act is made out and inspite of that the cognizance has been taken against the petitioner which is not permissible in the eye of law. 5. Mr. Sheo Kumar Singh, the learned counsel for the petitioner submits that there is no allegation and no ingredient of section 188 and section 7 of the E.C. Act is made out and inspite of that the cognizance has been taken against the petitioner which is not permissible in the eye of law. He draws the attention of the Court to Section 3 of the E.C. Act and submits that power to control, supply and distribution rest with the Central Government and the Central Government has also authorized to delegate the same to other. He submits that there is no delegation and inspite of that cognizance has been taken. 6. Mr. P.D. Agarwal, the learned State counsel submits that sub section 2 of section 3 of Essential Commodities Act, 1955 (10 of 1955) read with the order of the Government of India in the Ministry of Agriculture published under G.S.R.316(E), dated 20.06.1972 and the order of the Government of India in the Ministry of Industry and Civil Supplies published under S.O.681(E) and S.O.682 both dated 30.11.1974 and with prior concurrence of the Government of India, Ministry of Civil Supplies and Co-operation received under the letter No.F-20(10)/77.E.C.R., dated the 20.09.1977, the Governor of Bihar was pleased to make Order clearly speaks of general power. The order may provide for regulating by license. He submits that all three of the said order speaks about display of stock and prices and clause 4 speaks about sale of articles. 7. The order may provide for regulating by license. He submits that all three of the said order speaks about display of stock and prices and clause 4 speaks about sale of articles. 7. In view of the above fact the Court has gone through the section 3 of the E.C.Act and also perused the Bihar Essential Articles (Display of prices and Stock) Order, 1977, clause-3 speaks of display of stocks and prices and clause-4 speaks of sale of article which is quoted hereinbelow: “3.(a) A list of prices and stocks of all those articles mentioned in Schedule I in which he deals: [Provided that retailers, except the shops established under Public Distribution System will have to display the price of each article mentioned in Schedule I of the Bihar Essential Articles (Price and Stock) Display Order, 1977 and they shall have to display the availability of stock on the Display Board writing the work “Yes” or “No” in place of writing quantity of availability of stocks.] (b) The price of every such article mentioned in Schedule II in which he deals in by affixing a price label or a price tag to each article, or by putting a price placard where the article is stored or kept for sale, unless the price of the article is already printed on the article itself, or its container, or packet or wrapper. (c) List of prices of any article mentioned in Schedule II as may be specified from time to time by the Commissioners or the District Magistrates as the case may be. 4. Sale of articles-No dealer shall- (a) sell to any person any article mentioned in Schedules I and II at a price higher than that displayed in accordance with clause 3; (b) refuse to sell such articles to any person at a price so specified or marked; (c) It shall not be necessary for a retail dealer to issue any such cash memo or bill or to keep any trade article costing not more than Rs.25 or the trade articles costing not more than Rs.50 together unless demanded by the purchaser.” 8. Thus, it appears that so far the prices are concerned that is being controlled in terms of those orders and the allegation against the petitioner is that on the higher prices he is selling the articles and display was also not there and prima facie the case against the petitioner is made out. 9. Section 188 IPC is also the subject matter of the cognizance. Section 188 IPC speaks of disobedience to order duly promulgated by the public servant. In order to attract section 188 IPC the following ingredients have to be proved, namely, (1) that there must be an order promulgated by the public servant;(2) that such public servant is lawfully empowered to promulgate it;(3) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management has disobeyed; and (4) that such disobedience causes or tends to cause (a) obstruction, annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety; or (c) a riot or affray. 10. This Court has not indulged in the finding on the ingredients of section 188 IPC as it is the subject matter of the trial so far as cognizance is concerned, the Supreme Court has recently considered section 190 read with section 203 and 204 of Cr.P.C in the case of “State of Gujarat v. Afroz Mohammed Hasanfatta”, reported in 2019 (2) JLJR (SC) 165. At the time of taking cognizance, the Court is required to apply its mind in the allegation and the charge sheet and satisfied that there is sufficient ground for proceeding against the accused and not to examine merit and demerit of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defence-the possible defence need not be taken into consideration at the time of issuing process unless there is an ex facie defence such as a legal bar or if in law the accused is not liable, whether the accused had mens rea or not is not to be established at the stage of issuance of summons. 11. 11. In view of the above discussions and the law discussed above, the Court comes to the conclusion that there is no illegality in the order of cognizance and, accordingly, the petition [Cr.M.P. No.1679 of 2021] is dismissed.