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2024 DIGILAW 669 (JHR)

Mukesh Kumar v. State of Jharkhand

2024-07-03

ANIL KUMAR CHOUDHARY

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JUDGMENT : Anil Kumar Choudhary, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 07.08.2023 by which cognizance has been taken for the offences punishable under Section 379/414 of the Indian Penal Code and under Section 7 of the Essential Commodities Act, in connection with Bishungarh P.S. Case No. 185 of 2022, pending in the court of learned Sub Divisional Judicial Magistrate, Hazaribagh. 3. The brief facts of the case is that the Supply Inspector, Bishungarh, on getting information from Supply Inspector, Hazaribagh that the truck bearing Registration No. JH02-AN 8540 loaded with illegal rice has been caught, found that the rice loaded in the said truck was to be used in Public Distribution System but the same was illegally transported for the purpose of black-marketing. The petitioner no.3 was the driver of the said vehicle and he informed that the rice belonged to the petitioner no.1. No valid documents could be shown by the petitioners. The rice weighed 232.20 quintals. Upon submission of the written report, Bishungarh P.S. Case No. 185 of 2022 was registered. Police took up investigation of the case and submitted charge sheet finding the offences punishable under Section 379/414 of the Indian Penal Code and under Section 7 of the Essential Commodities Act having been committed. The learned Magistrate has taken cognizance of the offences punishable under Section 379/414 of the Indian Penal Code and under Section 7 of the Essential Commodities Act. 4. The learned counsel for the petitioner submits that relying upon the Judgment of this Court in the case of Nimai Chandra Dey Vs. State of Jharkhand, reported in (2024) SCC Online Jhar 338 that Section 7 of the Essential Commodities Act envisages the punishment for violation of control order promulgated under Section 3 of the Essential Commodities Act but neither the petitioner has violated any control order nor there is mention of any control order of being violated by the petitioner, hence, the offence punishable under Section 7 of the Essential Commodities Act is not made out against the petitioner. It is lastly submitted that the portion of the order so far as it relates to the cognizance for the offence punishable under Section 7 of the Essential Commodities Act be quashed and set aside. 5. In support of her contention, the learned counsel for the petitioner also relies upon the Judgment of Hon’ble Supreme Court of India in the case of Kailesh Prasad Yadav & Another Vs. State of Jharkhand & Another, reported in (2007) 5 SCC 769 wherein the Hon’ble Supreme Court of India has observed that a valid seizure is a sine-qua-non for passing an order of confiscation of a property. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 6. Learned Special P.P, fairly submits that there is no allegation of any control order having been violated by the petitioner and learned Spl. P.P also does not know as to which control order has been violated and fairly submits that in absence of any violation of control order, the offence punishable under Section 7 of the Essential Commodities Act, is not made out but the learned Spl. P.P. further submits that so far as the offence punishable under Section 379/414 of the Indian Penal Code is concerned, the same is very much made out as all the essential ingredients of the said offences are present in the allegations made in the FIR, the case diary, and the charge-sheet, hence, there is no illegality in the order passed by learned S.D.J.M., Hazaribagh for having taken cognizance of the offence punishable under Section 379/414 of the Indian Penal Code. Hence it is submitted that the cognizance order so far as it relates to Section 379/414 of the Indian Penal Code ought not be interfered with. It is lastly submitted that this criminal miscellaneous petition, being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the essential ingredients for the offence punishable under Section 414 of the Indian Penal Code are:- (i) the subject matter of the of the offence was stolen property; (ii) the accused assisted in concealing or disposing or making away with such property. 8. 8. It is a settled principle of law, that it is not necessary for a person, to be convicted under Section 414 of the Indian Penal Code, some other person must be traced out for being convicted for the offence of committing theft. The prosecution is simply to prove that the property recovered is stolen property and that the accused extended help in concealment and disposal of the same, as has been held by the Hon’ble Supreme Court of India in the case of Ajendra Nath vs. State Of Madhya Pradesh reported in AIR 1964 SC 170 . It is also pertinent to refer to Section 410 of the IPC which reads as under : 410. Stolen property.—Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which 411[* * *] 412[* * *] criminal breach of trust has been committed, is designated as “stolen property”, 413[whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without 414[India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. (Emphasis supplied) The plain reading of the section 410 of the IPC makes it abundantly clear that the property which has been criminally misappropriated is also a stolen property. 9. So far as the offence punishable under Section 379 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are:- (i) the accused removed the movable property. (ii) he removed it out of the possession of another person without his consent; and (iii) he did so with dishonest intention. 10. Now coming to the facts of the case, in view of the specific allegation that the petitioners have committed theft of the rice which was illegally transported, so this Court do not find any justification to interfere with the order of cognizance in respect of the offence punishable under Section 379 of the Indian Penal Code. 11. Now coming to the facts of the case, there is direct and specific allegation against the petitioner, of assisting in concealment and disposal of the food grains, which had to be distributed under the Food Safety Act, which has been obtained by criminal misappropriation and theft. 11. Now coming to the facts of the case, there is direct and specific allegation against the petitioner, of assisting in concealment and disposal of the food grains, which had to be distributed under the Food Safety Act, which has been obtained by criminal misappropriation and theft. Under such circumstance, this Court do not finds any justifiable reason to interfere with the portion of the order by which, the cognizance in respect of the offences punishable 379/414 of the Indian Penal Code has been taken by the learned S.D.J.M., Hazaribagh but so far as the offence punishable under Section 7 of the Essential Commodities Act, 1955 is concerned, certainly, in the absence of any allegation of violation of any control order, the offence punishable under Section 7 of the Essential Commodities Act, is not made out. 12. Accordingly, the order dated 07.08.2023 passed by learned S.D.J.M., Hazaribagh in connection with Bishungarh P.S. Case No. 185 of 2022 is quashed in part, so far as the it relates to the cognizance taken in respect of the offence punishable under Section 7 of the Essential Commodities Act, 1955 but the said order, in respect of the offence punishable under Section379/414 of the Indian Penal Code is maintained. 13. This criminal miscellaneous petition is allowed to the aforesaid extent only. 14. Accordingly, this criminal miscellaneous petition is disposed of.