Allahabad High Court
Mohd. Kaleem vs State Of U.P. Thru. Prin. Secy. Home And ... on 19 July, 2019
Bench: Shabihul Hasnain, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- MISC. BENCH No. - 5359 of 2018 Petitioner :- Mohd. Kaleem Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others Counsel for Petitioner :- Siddhartha Sinha Counsel for Respondent :- Govt. Advocate Hon'ble Shabihul Hasnain,J.
Hon'ble Rajeev Singh,J.
(Delivered by Rajeev Singh, J.) Heard Shri Siddhartha Sinha, learned counsel for the petitioner and the learned A.G.A. for the State.
This petition has been filed seeking a writ of certiorari quashing the F.I.R. bearing Case Crime No. 646 of 2017 under Section 3/7 E.C. Act, P.S. Nanpara, District Bahraich.
Factual matrix of the case is that on the written complaint of Shri Vimal Kumar Gupta, Supply Inspector, the impugned F.I.R. has been registered. It is alleged in the F.I.R. that on the basis of information received, Sub Divisional Magistrate, Nanpara along with one Dinesh Kumar, Mandi Assistant and others reached at the go-down of M/s. Shikhar Deep Trading Company, Nanpara on 15th April, 2017 and during the course of inspection of the go-down, it was found that the boundaries of the go-down were not approved by the Mandi Samiti, Nanpara. Finding that a large number of sacks of rice having been kept in the go-down and at the time of inspection, no document relating to the foodgrains could be produced by the proprieter, hence, on the suspicion, the said go-down was sealed. It is further alleged in the F.I.R. that on the basis of letter of S.D.M., Nanpara dated 16th April, 2017, a team was constituted under the supervision of Abhay Singh, Assistant Commissioner, Commerce Tax and was directed to prepare a detail report of the matter within three days. In the report of the said team dated 21st April, 2017, following irregularities were found:
On inspection of the first go-down situated at Rupaideeha road near Railway crossing, which is situated in the house of one Ramzan Khan, 13,414 sacks of rice (Upkar Brand), 5,241 sacks of rice (Bajrangi Brand), 25 kg. each, total weight of which would come to 4663.75 quintals were found. The Secretary of Mandi Committee informed the team that Committee does not have any information about the boundaries of the go-down. It is further alleged that when the second go-down was inspected, which was situated in the house of Smt. Roshan Jahan Mihipurwa road near sabzi mandi, Nanpara, 11529 sacks of non-basmati rice (Bajrangi Brand), 25 kg. each, total weight of which would come to 2882.25 quintals were found. Upon inspection of the third go-down, which was the office of M/s. Shikhardeep Trading Company situated in the house of Naushad Ali, Mihipurwa road, Bhaggapurwa, Nanpara, 18,742 sacks of non-basmati rice (Bajrangi Brand), 25 kg. each, total weight of which would come to 4685.50 quintals, 888 sacks of chana dal (Swad Brand), 30 kg. each, total weight of which would come to 226.40 quintals were found in the said go-down. It is further alleged that 16,700 empty sacks of 25 kg. of Upkar Brand and 3000 empty bags of S.D. Natural Sonam Steam rice brand have been found, whereupon it was mentioned to be packaged and marked by M/s. Krishna Traders, Pandey Bazar, Basi road, Basti. Further, 325 kg. of polythene bag along with one sewing machine and electric weighing machine were also recovered from there. It is also alleged therein that the abovementioned Brand, namely, Bajrangi and Upkar Brand belonged to Nepal. During the raid, the proprietor submitted that the order memo in regard to the said sacks will be provided to the inspection team. In the F.I.R., it is also alleged that during the inspection, certain sale invoices of purchase of from Bismillah Rice Mill were shown by the proprietor of the firm, in which, 680 sacks of 50 kg. each were shown to be purchased. It is further alleged that on inspection, the sacks found at the place of inspection were of 25 kg. each, meaning thereby, the petitioner was illegally repackaging the rice.
In view of aforesaid facts, on the allegations that the petitioner has contravened the provisions of para 4 of Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1982 (hereinafter referred to as ''Order, 1982') and also para 3 of U.P. Foodgrains (Restrictions on Border Movement) Order, 1971 (hereinafter referred to as ''Order, 1971'), the impugned F.I.R. dated 22.04.2017 was lodged under Section 3/7 of E.C. Act.
Contention of the learned counsel for the petitioner is that no offence under Section 3/7 of Essential Commodities Act is made out. He further submitted that the specific reply was asked by this Court vide order dated 6th March, 2018 on the issues raised by him, but the same was not replied in the counter affidavits. Learned counsel for the petitioner further submitted that the petitioner has falsely been implicated in the impugned F.I.R. and the petitioner is innocent as he has the requisite permits, licences etc. to export the rice. He is also having the Importer Exporter Code Number Certificate (for short ''IEC') issued by the Joint Director General of Foreign Trade, Kakadeo, Kanpur dated 3rd June, 2016 (Annexure 3 to the petition), by way of which the Government gives the authority to the petitioner to export. He further submitted that the petitioner entered into a sale contract dated 15.03.2017 with the firm of Nepal by the name of M/s. Shikhardeep Multipurpose Co-operative Ltd. Kausaltal, Bhaktpur, Nepal and according to the said contract, the petitioner had to export 1564 Metric Tons of rice to the said firm in Nepal. The purchase order is appended as Annexure 4 to the petition.
Further submission of the learned counsel for the petitioner is that a perusal of the said sale contract reveals that the rice exported to the aforesaid firm in Nepal will be packaged and marked in the name of brands of Nepal firm, namely, Bajrangi Brand (70%) and Upkar brand (30%). He also submitted that in Clause F of the said contract drawn between the firm of the petitioner and the purchaser firm of Nepal, it is provided that if the petitioner failed to deliver the goods timely then a penalty of 10% of total consignment value will be levied on the petitioner. On the basis of abovementioned sale contract dated 15.03.2017 as also the IEC, the Foreign Trade Office, Calcutta gave permit to the petitioner to export 1564 Metric Tons of rice on 4th April, 2017, which was valid for a period of 30 days. Copy of the said permit issued by the Ministry of Commerce & Industry, Department of Commerce, Office of Zonal Director General of Foreign Trade, Calcutta (West Bengal) is appended as Annexure 5 to the petition. Learned counsel for the petitioner also submitted that on the basis of sale contract drawn with the firm of Nepal and also the abovementioned permit given by the Government, petitioner made purchase orders with the rice millers, namely, M/s. Om Prakash Agro Overseas Pvt. Ltd., Bahraich, M/s. Rajgarhia Food Products Pvt. Ltd., Bahraich, M/s. Arohul Foods Pvt. Ltd., Bahraich and M/s. SDG Logistics Park Ltd., Lucknow. The copies of purchase order are collectively appended as Annexure 6 to the petition.
Next submission made by the learned counsel for the petitioner is that since the firm in Nepal wanted some rice urgently, the petitioner directly exported the rice purchased from M/s. SDG Logistics Park Ltd. (miller) to Nepal directly in two consignments of 15 Metric Tons each on 7th April, 2017. The remaining rice purchased from the rice millers, namely, Om Prakash Agro Overseas Pvt. Ltd., Rajgarhia Food Products Pvt. Ltd. and Arohul Foods Pvt. Ltd. was to be exported to the firm in Nepal. A copy of the detail of the purchases made by the petitioner from the said three rice millers is appended as Annexure 8 to the petition. Learned counsel for the petitioner also drew the attention of this Court towards the details of the purchases, which reveal that the petitioner purchased 238 Metric Tons of rice from M/s. Om Prakash Agro Overseas Pvt. Ltd. for a sum of Rs.66,64,000/-, 578 Metric Tons of rice from Rajgarhia Food Products Pvt. Ltd., Lucknow for a sum of Rs.1,61,84,000/- and 340 Metric Tons of rice from Arohul Food Products Pvt. Ltd. for a sum of Rs.96,56,000/-. As a matter of fact, the abovementioned purchased rice was kept by the petitioner in the aforesaid three go-downs. He further submitted that the petitioner holds a valid mandi licence issued by the Krishi Utpadan Mandi Samiti, U.P. (Annexure 9 to the petition). The petitioner also holds Sales Tax Licence, which is appended as Annexure 10 to the petition. It is submitted that the foodgrains are worth of more than Rs.3 crores and the petitioner had taken huge loan to run his business.
It is next submitted that the petitioner has already informed the Mandi Samiti about all the three go-downs which the petitioner was using to store the rice. As per the provisions of Rules and Bye-laws of the Mandi Samiti, licensee had to inform to the Mandi Samiti about the location of the new go-down within one month and, in case, he fails to inform the location of the new go-down to the Mandi Samiti, then only fine could be levied on the licensee. Submission of the learned counsel for the petitioner is that in the present case, the time of 30 days had not passed, as the purchases made by the petitioner are between 17th March, 2017 to 2nd April, 2017 and the alleged raid on the premises of the petitioner was conducted on 15.04.2017. As a matter of fact, as soon as any goods are arrived, the truck is first sent to the Mandi Samiti, which issues a entry slip to each and the same is also recorded in the Entry Register of the Mandi Samiti after examining the vehicle and the goods, and only then the petitioner was allowed to store the rice. The true copies of all the entry slip are appended as Annexure 14 to the petition. Learned counsel for the petitioner further submitted that despite the Sales Tax Department gave a notice dated 20th April, 2017 to the petitioner to verify the location of two go-downs by appearing before the officer concerned by 24th April, 2017, the impugned F.I.R. was registered on 22nd April, 2017 against the petitioner and his licence has also illegally been cancelled on the same day before any clarification could be given by the petitioner. It is submitted that the entire exercise of accusations was made by the local Government officials at the behest of the business rivals.
When the matter was taken up on 6th March, 2018, after hearing the learned counsel for the parties, this Court was of the view that the short counter affidavit (which was filed by the learned A.G.A. on 28th February, 2018) does not reflect any reply to the submissions made by the learned counsel for the petitioner, therefore, time was granted to file detail counter affidavit, in pursuance to which, learned A.G.A. filed two short counter affidavits dated 20th March, 2018.
Order dated 06.03.2018 reads as under:
"1. Heard learned counsel for the petitioner and the learned Additional Government Advocate representing the State Authorities.
2. Learned counsel appearing for the petitioner has contended that the recitals made in the impugned first information report do not make out any offence under Section 3/7 Essential Commodities Act (hereinafter referred to as 'E.C. Act') for the reason that under Section 7 E.C. Act contravention of an order made under Section 3 E.C. Act is punishable and in this case, so far as the allegations relating to contravention of U.P. FOODGRAINS (RESTRICTIONS ON BORDER MOVEMENT) ORDER, 1971 is concerned, the said Restrictions Order has not been made under Section 3 E.C. Act, rather it has been made in exercise of powers conferred under Rule 114 of the Defence of India Rules, 1971. Learned counsel has further contended that in respect of alleged contravention of THE UTTAR PRADESH FOODGRAINS (PROCUREMENT AND REGULATION OF TRADE) ORDER, 1982 the limit of stock for licensed dealers provided in Clause 4 thereof stood deleted by enforcement of the REMOVAL OF (LICENSING REQUIREMENTS, STOCK LIMITS AND MOVEMENT RESTRICTIONS) ON SPECIFIED FOODSTUFFS ORDER, 2002 made by the Central Government under Section 3 E.C. Act, Clause 4 whereof clearly provides that The provisions of this Order shall take effect notwithstanding anything to the contrary in any other Order made by a State Government before the commencement of the said order.
3. Based on the aforesaid grounds, learned counsel for the petitioner has, thus, contended that a bare perusal of the impugned first information report does not disclose commission of offence under Section 3/7 E.C. Act.
4. Short counter affidavit has been filed by the learned Additional Government Advocate which does not reflect any reply to the aforesaid submissions made by the learned counsel for the petitioner; it only contains the sanction order granted by the District Magistrate, Bahraich for prosecution on 24th February, 2018,
5. Let a detail counter affidavit be filed by the learned Additional Government Advocate within one week, giving therein specific reply to the averments made in the writ petition as also the reply to the issues formulated hereinabove by the Court in the earlier part of this order.
6. One week's time thereafter shall be available to the learned counsel for the petitioner to file rejoinder affidavit.
7. List this case on 20th March, 2018.
8. We specifically direct learned Additional Government Advocate to file counter affidavit after seeking instructions on the aforesaid legal issues from the District Supply Officer or any other higher officer in the Department of Food and Civil Supplies."
Drawing attention of the Court towards the avements made in the counter affidavit, learned counsel for the petitioner submitted that there is no pleading for violation of any order passed under Section 3 of the E.C. Act. In the counter affidavit dated 20th March, 2018 filed by Umesh Kumar Singh, Sub Inspector, P.S. Kotwali, Nanpara, it is mentioned that the charge sheet dated 27th February, 2018 has been filed after investigation, but despite specific direction of this Court dated 6th March, 2018 no averment has been made towards the issues raised, which were observed in the aforesaid order.
It is lastly submitted by the learned counsel for the petitioner that if a charge sheet is filed during the pendency of the petition, the same can also be quashed. This submission has been made on the strength of the judgment passed by the Hon'ble Supreme Court in the case of Anand Kumar Mohatta & Anr. Vs. State (Government of NCT of Delhi) & Anr. reported in 2018 SCC OnLine SC 2447.
Rebutting the contentions raised by the learned counsel for the petitioner, learned A.G.A. submitted that the new location of the go-down was not informed by the petitioner. He submitted that there was clear violation of the provisions of Control Order, 1982 as well as Control Order, 1971. It is also contended by the learned A.G.A. that after filing of the charge sheet dated 27.02.2018, which has been filed only after the sanction from the District Magistrate and the court below has also taken cognizance on the same, this petition for quashing of the F.I.R. has lost its efficacy, inasmuch as the investigation has already been concluded.
We have considered the arguments advanced by learned counsel for the parties as well as perused the record.
It is not the case of the respondent authorities that the petitioner was black marketting or was purchasing the foodgrains illegally, rather the impugned F.I.R. under Section 3/7 of E.C. Act has been lodged against the petitioner on the basis of contravention of para 4 of Control Order, 1982 as well as para 3 of the Control Order, 1971.
Insofar as the contravention of Para 4 of the Control Order, 1982 is concerned, it is a State Control Order and the said Para has already been revoked by enforcement of Removal of (Licensing Requirements, Stock Limits and Movement Restrictions) on Specified FoodStuffs Order, 2002 on 9th January, 2014. Vide G.S.R.929(E) dated 29th September, 2016, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs) in exercise of powers conferred by Section 3 of E.C. Act has removed the licensing requirements, stock limits and movement restrictions on certain foodstuffs and permit or licence is not required after 29th September, 2016. In the licence issued by Mandi Samiti also, there is no limit on stock holdings. Relevant part of para 3 of aforesaid G.S.R. is reproduced hereunder:
"3. Removal of licensing requirements, stock limits and movement restrictions on certain foodstuffs.-
(1) Any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume, any quantity of wheat, wheat products (namely maida, rava, suji, atta, resultant atta and bran) paddy, rice, coarsegrains, sugar gur, edible oilseeds, edible oils, pulses, hydrogenated vegetable oils or vanaspati, onions and potato and shall not require a permit or license therefor, under any order issued under the Act, save as otherwise provided under this clause.
(2) The provisions of sub-clause (1) shall, in respect of the purchase, movement, sale, supply, distribution or storage for sale of these commodities, not apply to-
(i) pulses, for a period up to 30th September, 2017;
(ii) sugar, for a period up to 21st November, 2016 in respect of the States of Assam, West Bengal, Tamil Nadu, Kerala and the Union territory of Puducherry; and for a period up to 28th October, 2016 in respect of other States and Union territories;
(iii) edible oils and edible oilseeds, for a period up to 30th September, 2017 except for the purposes of calculation fo stock limits under the Act, in the following cases, namely:-
(a) an exporter, being a wholesaler or retailer or dealer, having Importer-Exporter Code Number issued by the Directorate General of Foreign Trade, if such exporter is able to demonstrate that the whole or part of his stock in respect of edible oils and edible oilseeds are meant for exports, to the extent of the stock meant for export;
(b) a retailer having multiple outlets or large departmental retailers;
(c) stock essential to be used as raw materials by licensed food processort for manufacture of food products;
(d) an importer, being a wholesaler or retailer or dealer, if such importer is able to demonstrate that part of his stock in respect of edible oils and edible oilseeds are sourced from imports;
Provided that the Central Government or the State Government may direct the importers to declare the receipts of stocks of edible oils and edible oilseeds and stocks retained by them.
(3) Nothing contained in sub-clause (2) shall affect the transport, distribution or disposal of sugar, edible oils and edible oilseeds to places outside the State."
Insofar as Control Order, 1971 is concerned, it was passed by the Government while exercising the powers conferred under Section 3 of the E.C. Act, rather it has been passed under Sub-Rule 2 of Rule 114 of Defence of India Rules, 1971. This Control Order has been passed under the Defence of India Act, 1971 and this Act was enforceable only at the time of proclamation of emergency, for a period of six months. In such circumstances, contravention of Para 3 of the Control Order, 1971 also cannot be said to be made out.
State has not denied either during the argument or in the counter affidavits that the petitioner was having valid licnece of sales tax, valid licence of Mandi Samiti for doing business in the foodstuff, and he was also having IEC issued by the Ministry of Commerce and Industries, Department of Commerce. Thus, the specific averments made about having licence and supply of order to the firm in Nepal are unrebutted. It is also not denied by the State that as to how the provisions of aforesaid Control Orders have been violated and under what circumstances, the provisions of Section 3/7 of E.C. Act have been invoked. It is also evident from the record that the accusations have been made in most mechanical manner and the Investigating Officer has wrongly submitted the charge sheet and despite a clear direction issued by this Court vide order dated 6th March, 2018, vague reply has been filed by the Investigating Agency. Further, penal provisions of E.C. Act will only be applicable against such person, who has contravened any order passed under Section 3 of E.C. Act, but it is not the case of the respondent. The authorities have arbitrarily cancelled the licence of the petitioner issued by Mandi Samiti as well as Sales Tax Licence.
In the case of Anand Kumar Mohatta (supra), initially the appellants had challenged the F.I.R., but since during the pendency of the appeal, charge sheet was filed, by way of amendment, appellants had also prayed for quashing of the said charge sheet. While negating the contention advanced by learned counsel for the respondent that once the charge sheet is filed, petition for quashing of F.I.R. is untenable, Hon'ble Supreme Court, in para 16 of the judgment held as under:
"16. First, we would like to deal with the submission of the learned Senior Counsel for the Respondent No. 2 that once the charge sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat. In the case of Joseph Salvaraj A. (supra), this Court while deciding the question whether the High Court could entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed:--
"16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not."
In the case of State of Karnataka Vs. L. Muniswamy, (1977) 2 SCC 699, Hon'ble Supreme Court held that proceedings could be quashed if the Court comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. Relevant para 7 of the judgment is quoted hereunder:
"7. .....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice....."
Considering the totality of facts and circumstances of the case, we are of the view that no offence under Section 3/7 E.C. Act can be said to be made out.
For all the reasons given above, this writ petition is allowed.
First Information Report bearing Case Crime No. 646 of 2017 under Section 3/7 E.C. Act, P.S. Nanpara, District Bahraich as well as charge sheet dated 27.02.2018 along with all consequential proceedings are hereby quashed.
July 19, 2019 VKS