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2023 DIGILAW 534 (JHR)

Shiv Kumar v. State of Jharkhand

2023-04-19

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Nilesh Kumar, learned counsel appearing for the petitioner and Mr. Shailesh Kumar Sinha, learned A.P.P. for the State. 2. This petition has been filed for quashing of the entire criminal proceeding/prosecution including the First Information Report, in connection with Barhi P.S. Case No. 319 of 2015, corresponding to G.R. No. 4499 of 2015, lodged for the offences under Section 7 of the Essential Commodities Act, pending in the court of learned S.D.J.M., Hazaribagh. 3. On the written report of one Chandra Shekhar Singh, Supply Inspector dated 24.10.2015, in which it has been alleged that on 24.10.2015 at about 4 PM the business premises of the petitioner was searched and from his premises Mustard Oil and Refined Oil total 787.76 quintals recovered. It has been alleged that the said quantity is more than the storage limit fixed by the authority dated 19.10.2015 and accordingly, he has lodged this case against the petitioner and prepared a seizure list and the letter dated 19.10.2015 issued vide letter No. 4985/2015. 4. Mr. Nilesh Kumar, learned counsel appearing for the petitioner submits that the Secretary, Food Civil Supplies and Consumer Department, Government of Jharkhand had issued a letter on 19.10.2015, on the basis of which, a raid was conducted in the shop of the petitioner and 787.76 quintals of different brands of edible oil were seized with the allegation that the storage limit for the edible oil is 300 quintals for category town. He further submits that the letter dated 19.10.2015, issued by the Secretary, Food Supplies, does not disclose that prior concurrence of the Central Government was obtained in terms of Section 18 of Bihar Trade Articles (Licensing and Unification) order, 1984 neither was there any gazette notification by the State Government. He further submits that the required time limit of 45 days was not provided for disposing of the articles in terms of Section 12 of the Unification Order, 1984. He further submits that at the time of purchase of the articles, there was no storage limit fixed by the government and it is only after the issuance of the said letter that the storage limit was fixed. On these grounds, learned counsel appearing for the petitioner submits that the entire criminal proceeding is bad in law. 5. On the other hand, Mr. On these grounds, learned counsel appearing for the petitioner submits that the entire criminal proceeding is bad in law. 5. On the other hand, Mr. S.K. Sinha, learned A.P.P. appearing for the State submits that the Government of Jharkhand issued notification on 09.03.2015 fixing the storage limit of edible oil and the maximum storage limit was enhanced to 500 quintals and the period of operation of the notification was extended from time to time. He further submits that on the date when the raid was conducted the notification of the State Government was in operation and, therefore, having found the edible oil over and above the storage limit fixed by the notification dated 09.03.2015, the articles were rightly seized and criminal prosecutions were instituted under Section 7 of the Essential Commodities Act and in such circumstances, therefore, there is no cause for interference in these criminal proceedings. 6. 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 the State Government has straightway in the purported exercise of its powers under Section 3 of the Essential Commodities Act had issued the notification fixing 500 quintal as the storage limit. 7. Neither the notification nor the counter affidavits filed by the State disclose about the compliance of the statutory requirement as envisaged under Clause 18 of the Unification Order. Such non-compliance would automatically lead to the conclusion that on the date when the inspection was made and seizure of the edible oil were 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. 8. 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.” 9. 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 edible oil. 10. The State of Jharkhand has filed counter affidavit and in course of the arguments, learned counsel for the State has not been able to controvert the contention of the learned counsel for the petitioner that the prosecution becomes invalid also in view of the fact that no licence fee has been prescribed in dealing in edible oil. 11. In light of the above facts, reasons and analysis, entire criminal proceeding instituted against the petitioner is 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 proceeding as against the petitioner will amount to abuse of process of law. In that view of the matter, entire criminal proceeding as against the petitioner deserves to be quashed. In that view of the matter, entire criminal proceeding as against the petitioner deserves to be quashed. Accordingly, the entire criminal proceeding/prosecution including the First Information Report, in connection with Barhi P.S. Case No. 319 of 2015, corresponding to G.R. No. 4499 of 2015, lodged for the offences under Section 7 of the Essential Commodities Act, pending in the court of learned S.D.J.M., Hazaribagh, as against the petitioner is, hereby, quashed. 12. Resultantly, this petition stands allowed and disposed of.