Jharkhand High Court
Md. Shamim Akhtar @ Shamu Khan vs The State Of Jharkhand. ......Opposite ... on 1 May, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 678 of 2006
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Md. Shamim Akhtar @ Shamu Khan. ....Petitioner
Versus
The State of Jharkhand. ......Opposite Party.
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. P.D. Agrawal, Advocate
For the State : Mr. Rajesh Kumar Mishra, APP.
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03/1.5.2018 Heard the parties.
In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Sitaramdera P.S. Case No. 70 of 1999 including the order dated 2.3.2004, passed by the learned Sub Divisional Judicial Magistrate at Jamshedpur, by which charge has been framed for the offence under sections 407 and 408 of the Indian Penal Code and Section 7 of the Essential Commodities Act.
It has been submitted by the learned counsel for the petitioner that the date of seizure is 28.8.1999 and there was no stock limit as the same was removed vide Notification dated 17.5.1995. It has further been submitted that the learned Chief Judicial Magistrate was not empowered by the State Government but he had taken cognizance merely on the basis of notification issued by the Jharkhand High Court. It has also been submitted that in absence of any authorization by the learned Chief Judicial Magistrate in taking cognizance for the offence under section 7 of the Essential Commodities Act coupled with the fact that no case under section 7 of the Essential Commodities Act is made out against the petitioner, entire criminal proceedings against the petitioner deserves to be quashed and set aside.
Learned A.P.P. on the other hand has opposed the prayer made by the learned counsel for the petitioner and has stated that no documents were produced for the wheat, which was being transported and neither inside nor outside the godown display of price and stock was displayed and therefore there was violation of the provisions of Bihar Trade Articles (Licences Unification) Order, 1984 as also Bihar Essential Articles (Price and Display) Order, 1977.
The allegation made in the FIR reveals that a raid was conducted in the godown of the petitioner on 28.8.1999 and 26 bags wheat were found stocked. No one produced any licence nor any document with respect to the purchase of wheat. Allegation has been levelled that on 27.8.1999, Food Corporation of India, Jamshedpur had supplied wheat to Nimdih block by truck no. HR-38-7364, which was seized by Sitaramdera Police but the Khalasi of the truck had disclosed that the wheat found in the godown of the petitioner were the wheat -2- meant for Nimdih block. It was alleged that there was no display of price and stock either inside the godown or outside the godown. Based on the aforesaid allegations, Sitaramdera P.S. Case No. 70 of 1999 was instituted for the offence under section 7 of the Essential Commodities Act and Sections 407 and 408 of the Indian Penal Code. Investigation resulted in submission of chargesheet, pursuant to which, cognizance was taken by the learned Chief Judicial Magistrate on 2.3.2004 under sections 407 and 408 of the Indian Penal Code and Section 7 of the Essential Commodities Act. Subsequently charge was framed against the petitioner on 25.1.2006 by the learned Sub Divisional Judicial Magistrate, Jamshedpur. No counter affidavit has been filed by the State to counter the assertions made by the learned counsel for the petitioner nor the learned A.P.P. has been able to controvert the legal position with respect to the learned Chief Judicial Magistrate, Jamshedpur not being empowered by the State Government to take cognizance for the offence under section 7 of the Essential Commodities Act.
Learned counsel in support of his contention has referred to an order passed by this Court on 3.2.2015 in Cr.M.P. No. 1519 of 2003 based on the Division Bench judgement in the case of Raj Kishore Prasad and Another Vs. State of Bihar (reported in 1999(2) East Cr. C. 273(Pat), it was held as follows:-
"In the case of Raj Kishore Prasad and another v. State of Bihar reported in 1999(2) East Cr. C. 273(Pat), the Hon'ble Division Bench was considering the question of reference by the learned Single Judge as to whether a Judicial Magistrate, 1st class who has not been "specially empowered by the State Government , but has been authorized by the High Court by an administrative order can try a case if the offence is covered by Section 12A(2)(b) of the E.C. Act, 1955. While answering the reference the Hon'ble Division Bench had held that the Judicial Magistrate , 1st class who was not 'specially empowered' by the State Government cannot try an offence falling u/s 12(2)(b) of the E.C. Act. The Notification dated 11.5.2001 issued by the Hon'ble Jharkhand High Court, Ranchi was in respect to conferments of powers upon all the C.J.M, A.C.J.M and S.D.M. to take cognizance of the offence and try cases under the E.C. Act, 1955 in a summary way. This notification was in exercise of the powers conferred by sub sections (1)(c)(i) of Section 260 of the Code of Criminal Procedure. The order taking cognizance by the learned Chief Judicial Magistrate, Hazaribagh dated 11.6.2001 was in terms of the aforesaid Notification dated 11.5.2001 and therefore, in terms of the decision rendered by this Court and in terms of the provisions of Section 12A of the E.C. Act, 1955, the C.J.M, was not competent to take cognizance for the offence punishable u/s 7 of the E.C. Act as being not 'specially empowered" in terms of the said provisions".
In absence of there being any opposition with respect to the attack made by the learned counsel for the petitioner regarding empowerment of learned Chief Judicial Magistrate, Jamshedpur to take cognizance by order dated 2.3.2004, therefore the said court cannot be said to be specially empowered in terms of section 12 of the Essential Commodities Act to take cognizance under section 7 of the Essential Commodities Act.
-3-Apart from the above, it is also to be an admitted fact that there was no storage limit as the same is barred by the Notification dated 17.5.1995 and in such circumstances also there was no requirement of licence of storage limit.
So far as section 407 of the Indian Penal Code is concerned, same relates to criminal breach of trust by carrier etc. and section 408 reveals criminal breach of trust by clerk or servant in any manner entrusted with the property or with any dominion over property to commit criminal breach of trust in respect of that property. Section 407 of IPC would not apply in this case as petitioner is said to be the owner of the Godown in which he had stacked 27 bags of wheat which was the subject matter of the criminal prosecution. Nothing has been disclosed by the State as to how section 408 of IPC is applicable to the case of the petitioner in absence of there being any storage limit with respect to the wheat as on the date of occurrence. The circumstances, enumerated above, lead to conclusion that no case under section 7 of the Essential Commodities Act and Section 407 of IPC is made out against the petitioner and if the criminal prosecution against the petitioner is allowed to continue, same would lead to abuse of the process of court.
Accordingly, this application is allowed and the entire criminal proceedings in connection with Sitaramdera P.S. Case No. 70 of 1999 including the order dated 2.3.2004, passed by the learned Sub Divisional Judicial Magistrate at Jamshedpur, by which cognizance has been taken for the offence under sections 407 and 408 of the Indian Penal Code and Section 7 of the Essential Commodities Act are hereby quashed and set aside.
(Rongon Mukhopadhyay,J) Rakesh/