Allahabad High Court
Manoj Mehto vs State Of U.P. And Another on 5 March, 2020
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- APPLICATION U/S 482 No. - 17455 of 2012 Applicant :- Manoj Mehto Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sameer Jain Counsel for Opposite Party :- Govt.Advocate Hon'ble Ram Krishna Gautam,J.
This application under Section 482 of Cr.P.C. has been filed by Manoj Mehto, with a prayer for setting aside proceeding of Case No. 914 of 2012, State Vs. Bihari and others, under sections 3/7 of Essential Commodities Act, in respect of applicant pending in the Court of Ist A.C.J.M., Varanasi.
Learned counsel for the applicant argued that First Information Report of was got lodged at Police Station Shivpur, District Varanasi, for offence punishable under sections 3/7 of Essential Commodities Act, as Case Crime No. 62 of 2012. It was investigated, resulting in submission of charge sheet against four accused persons. Cognizance over it was taken and accused persons were summoned. Applicant was neither named in FIR nor he was arrested on spot nor there was any recovery from him. His name was brought during investigation, on the basis of statement of Banwari- landlord of above premises, where from the cylinder were recovered, that applicant is tenant of that premises, whereas, applicant was not tenant of Banwari rather he was having his own house at Bharlai Shivpur. He has been implicated just for saving Banwari. As per Section 11 of Essential Commodities Act, by State Amendment of U.P., no court shall take cognizance of any offence without sanction of District Magistrate or such other actions, as may be empowered by State government. In present case, cognizance was taken without sanction and it was admitted that sanction was obtained, subsequently, but name of accused is not there in above sanction order. Hence, cognizance taken by Magistrate, vide order dated 12.4.2012, was bad in the eyes of law, vitiating entire proceeding. Hence, this application with above prayer.
Learned AGA has vehemently opposed with this contention that applicant was tenant of Banwari and since registration of FIR, he was made accused for above offence. This registration of case crime number was upon the report of informant Ajay Pratap Singh, District Supply Officer, Varanasi, and it was specifically said by him that this authorization from District Magistrate was there. The submission of report by District Supply Officer was under authority of District Magistrate. Hence, very provision of Section 11 of Act, was complied with. Though sanction was not there till filing of charge sheet and taking of cognizance by Magistrate but it was applied for and was subsequently granted by District Magistrate. It was mere irregularity that was cured. The very contention of application is against the fact on record. Hence, this application be rejected.
From the very perusal of F.I.R., it is apparent that District Supply Officer, was not aware of this occurrence, which was being said to be at the premises of Banwari. Rather, he had received an information about refilling of Domestic Liquid Petroleum Gas at the premises adjacent to Abhishek Hair Cutting Saloon and he had obtained permission for it, for making a raid. While making raid, huge number of gas cylinders with instruments for refilling as well as commercial cylinder of L.P.G. were recovered from above premises. Three persons were apprehended on spot working thereat. They were Hari, Dinesh Pandey and Jatinder. Recovery memo was prepared. While making this recovery memo, some informer informed that such type of act was being taken in another premises in that lane adjacent to house of Banwari son of Ramraj and when this team rushed on above spot, door of two rooms were got break opened, wherein, 59 number of domestic cylinders with one commercial cylinder and two instruments of refilling were recovered. None was there. This premise was held to be of Banwari, who narrated that present applicant was tenant of those two rooms and on the basis of this, this investigation was launched. Meaning thereby, neither applicant was apprehended on spot nor was there any recovery from him nor this premise was owned by him rather the owner of premise Banwari disclosed that present applicant was tenant of those two rooms. This was got break opened and from it, there was recovery. This has been vehemently opposed by applicant that he was of no concern with those two rooms nor he was tenant of above two rooms. Investigation resulted submission of charge-sheet. Even sanction subsequently drawn, was with no mention of name of applicant. Rather it was given for accused, who were apprehended in first premises and present applicant while mentioning tenant of Banwari i.e. till application for grant of sanction under Section 11 of E.C. Act as well as grant of sanction by District Magistrate, identity of this tenant was not substantiated, who is that person, who was accused No. 4 what is his identity, what is his parentage was not known to Investigating Officer or to District Magistrate. But cognizance was taken.
Section 11 of E.C. Act (State Amendment of U.P. 1955), provides:-
"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) 1[or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not]. 1[Explanation.?For the purposes of this section and section 12AA, ?recognised consumer association? means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force.] state amendment Uttar Pradesh.?In section 11, for the wrods ?by a person who is a public servant as defined in section 21 of the Indian Penal Code,? substitute the words ?by order of, or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf.? [Vide Uttar Pradesh Act 9 of 1974, sec. 7 (w.e.f. 24-4-1974).]"
Case in hand, comes under category 6 of cases innumerated by Apex Court. The cognizance of offence under the Essential Commodities Act, 1955, is to be taken in the manner laid down under Section 11 of E.C. Act, as amended by U.P. Act No. 9 of 1974. There is a specific provision under the Essential Commodities Act for taking cognizance of the offences under the Act. The provision of Cr.P.C. cannot be resorted to. In view of facts, it is apparent that compliance of Section 11 was not there.
Division Bench of Lucknow Bench in Writ Petition No. 2278 of 1988 (Ganesh Ganj Consumers Cooperative Store Ltd. Lucknow Vs. State of U.P. and others), while interpreting Section 11 of E.C. Act, in Paragraph No. 17 has observed:-
"17. Section 11 of the Act, as amended in its application to the State of U.P. does lay down that no Court shall take cognizance of any offence punishable under the Act "except on a report in writing of the facts constituting such offence made by order of, or, under the authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf." Order of the District Magistrate or authorization by him is essential for taking cognizance. This is a statutory requirement. If this is breached the conviction may be set aside. But report to police is different from report to Court contemplated in Section 11."
Hence, compliance of Section 11 of the Act has not been made in the present case. This vitiates cognizance taking in the offence by Magistrate concerned. It is under abuse of process of law. Accordingly, this application is to be allowed.
Application is being allowed.
Impugned cognizance taking order in Case No. 914 of 2012, State Vs. Bihari and others, under sections 3/7 of Essential Commodities Act, in respect of applicant- Manoj Mehto, only, pending in the Court of Ist A.C.J.M., Varanasi, is being quashed.
However, it is made clear that this order will not apply for rest of the three accused persons. The criminal proceeding against rest of the three accused persons is not being commented and the same has not been stayed.
Order Date :- 5.3.2020 Kamarjahan