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2023 DIGILAW 435 (JHR)

Vijay Saw @ Bijay Saw v. State of Jharkhand

2023-03-28

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Harsh Chandra, learned counsel appearing for the petitioner and Mr. Gaurang Jajodia, learned A.C. to G.P.-II, appearing for the State. 2. This petition has been filed for quashing of the entire criminal prosecution including the First Information Report, in connection with Adityapur P.S. Case No. 156 of 2015 (G.R. No. 453 of 2015), registered for the offence punishable under Section 7 of the Essential Commodities Act read with Sections 420/468/471 of the Indian Penal Code, pending in the court of learned Chief Judicial Magistrate, Seraikella. 3. The prosecution case was lodged by one Yogendra Prasad Sharma, Block Supply Officer, Gamharia against the petitioner with the following allegations:- On 16.4.15 at 6 A.M. he along with police patrolling party caught a tempo bearing registration No. JH 05AC/8038 while unloading rice (Usna) at the godown of Vijay Saw at Dindli Basti. The tempo was loaded with 20 packets of rice out of which three packets were already unloaded. Regarding 17 bags no evidence could be produced regarding the said rice and the same was brought to the Police Station and their measurement was done on the basis of weight mentioned on the bags. The weight of the bags was found that different bags of different weight. It is alleged that Vinay Saw came at 10 A.M. at the police station and he submitted cash memo and receipt. He produced the cash memo mentioning each bag containing 50 Kg of rice which is different from the weighment taken on the basis of Dukpatti. It is further stated that Vinay Saw disclosed that he had purchased this rise from Vijay @ Rs.1600/-per quintal and cash memo has been issued by Vijay Saw. It is stated that stock register is not maintained. It is stated that on 14.4.15 the stock register shows the purchase of 10 quintals of rice and on 16.4.15 after showing the sale the balance has been shown as Nil. He did not produced document regarding purchase on 14.4.15 and no payment of market fees has been produced. It shows that he is engaged in sale and purchase of PDS articles. The stock register, cash memo and challan and Bazar Samittee produced by Bijay Saw appears to be forge and are manufactured. The rice was seized and a case under Section 7 of the Essential Commodities Act read with Sections 420/468/471 of the Indian Penal Code was lodged. It shows that he is engaged in sale and purchase of PDS articles. The stock register, cash memo and challan and Bazar Samittee produced by Bijay Saw appears to be forge and are manufactured. The rice was seized and a case under Section 7 of the Essential Commodities Act read with Sections 420/468/471 of the Indian Penal Code was lodged. 4. Mr. Harsh Chandra, learned counsel appearing for the petitioners submits that the report does not show as to which order made under Section 3 of the Essential Commodities Act has been violated. He further submits that Section 3 of the Essential Commodities Act empowers the Central Government for issuing any Control Order for regulating by license, permits or otherwise, the production or manufacture of any essential commodity. He further elaborates his argument by submitting that Section 5 of the Essential Commodities Act delegates power by the Central Government to the State Government to such officers or authorities for issuing any order. He also refers to Sections 3 and 5 of the Essential Commodities Act, the State of Bihar/ Jharkhand issued Bihar Trade Articles (License Unification) Order, 1984 vide GSR 9 of the 19th April, 1984. He further submits that in view of clause-3 of the Unification Order, no dealer was entitled to carry on business of purchase, sale or storage for sale of any trade article without any license. He further elaborates his argument by way of submitting that the Central Government which is the ultimate authority under the Essential Commodities Act was pleased to remove the rice and wheat from the purview of the license, permits and their transportation by a notification dated 15.02.2002. He submits that by the said notification, the provisions of Bihar Trade Articles (Licenses Unification) Order, 1984 is not applicable in respect of rice and wheat and there is no control order in respect of the business, particularly for rice. He further submits that the rice has been purchased from the agriculture produce market. On these grounds, he submits that entire proceeding may kindly be quashed. 5. Learned counsel appearing for the State submits that he is not aware of the fact whether any notification is there or not. He submits that the contention of learned counsel appearing for the petitioners is unwarranted and only the FIR is under challenge, as such, at this stage, this court may not interfere in the matter. 6. 5. Learned counsel appearing for the State submits that he is not aware of the fact whether any notification is there or not. He submits that the contention of learned counsel appearing for the petitioners is unwarranted and only the FIR is under challenge, as such, at this stage, this court may not interfere in the matter. 6. In view of the above submissions of the learned counsel appearing for the parties, it is necessary to interpret Clause 18 of the Bihar Trade Articles (Licenses Unification) Order, 1984, which is reproduced herein below:- “18. Restriction on possession of trade articles. -No person shall, either by himself or by any person on his behalf, store or have in his possession at any time any trade article mentioned in Schedule I and Schedule II in quantity exceeding the limits fixed: (i) under an order issued by the Central Government, or (ii) by the Sate Government with prior concurrence of the Central Government by issuing a notification in official Gazette from time to time.” 7. Clause 18 specifies fixation of storage limit by the State Government with the prior concurrence of the Central Government by issuing a notification in the official Gazette. The primary requirement of complying Clause 18 of the Unification Order is of prior concurrence of the Central Government and publication of the notification in the official Gazette. None of the requirement seems to have been fulfilled as there is no notification so far as the storage of rice is concerned. 8. Neither the notification nor the counter affidavit has been filed by the State disclosing about the compliance of the statutory requirement as envisaged under Clause 18 of the Unification Order. Such noncompliance would automatically lead to the conclusion that on the date when the inspection was made and seizure of rice was effected, there was no storage limit in vogue and such situation would undoubtedly lead to a conclusion that the criminal proceedings instituted against the petitioners are bad in law. 9. In the case of Gauri Shankar Saboo v. State of Jharkhand & Anr., reported in 2010 (1) East Cr C 187 (Jhr), this Court while considering the provisions of Clause 18 held as under:- “13. Admittedly, the aforesaid notification has neither been published in the official Gazette nor anything is on record to show that said notification has been issued with prior concurrence of the Central Government. Admittedly, the aforesaid notification has neither been published in the official Gazette nor anything is on record to show that said notification has been issued with prior concurrence of the Central Government. Moreover, the said notification as required under the aforesaid clause has never been issued by the State Government, rather it has been issued by the Secretary of the department. 14. The intendment of the notification being published in the Official Gazette is that in case of fixation of stock limit the public must come to know the same. Therefore, it would not be operative unless published in the Official Gazette and mere printing of such notice in the newspaper, as has been done by the authority cannot be equated with the publication in the Official Gazette. 15. Thus, issuance of the notification prescribing stock limit of the food grains including pulses never seems to have been one in accordance with the provisions of the Unification Order and on that account, any prosecution on the ground of having excess food grains/pulses than the stock limit fixed would certainly be quit illegal.” 10. In the case of Satya Narain Prasad v. The State of Bihar, reported in 1998 PLJR 502 , it was held that the prosecution gets vitiated if the confiscation or prosecution becomes invalid on account of the fact that no licence fee has been prescribed for licenses for dealing in pulses. 11. It is well settled that if there is special law, Sections of IPC are not attracted. 11. In light of the above facts, reasons and analysis, entire criminal proceedings instituted against the petitioners are vitiated and in view of non-compliance of the statutory provisions in terms of Clause 18 of the Unification Order and to allow to continue the criminal proceedings as against the petitioners will amount to abuse of process of law. In that view of the matter, entire criminal proceedings as against the petitioners deserve to be quashed. Accordingly, the entire criminal prosecution including the First Information Report, in connection with Adityapur P.S. Case No. 156 of 2015 (G.R. No. 453 of 2015), registered for the offence punishable under Section 7 of the Essential Commodities Act read with Sections 420/468/471 of the Indian Penal Code, pending in the court of learned Chief Judicial Magistrate, Seraikella, are hereby, quashed. 12. Resultantly, this petition stands allowed and disposed of.