Allahabad High Court
H.P.Rai vs Station Officer on 13 March, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:45123 Court No. - 74 Case :- APPLICATION U/S 482 No. - 12249 of 1993 Applicant :- H.P.Rai Opposite Party :- Station Officer Counsel for Applicant :- Prem Prakash,A.K.Singh,Jyoti Kumar Singh Counsel for Opposite Party :- A.G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Rakesh Pandey, learned Senior Advocate assisted by Sri Jyoti Kumar Singh, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the records.
3. The present application under Section 482 Cr.P.C., has been filed by the applicant-H.P.Rai with the prayer to allow the application and quash the proceeding of Crl. Case No.12 of 1989 (State Vs. Hari Prasad) pending in the court of Special Judge, Azamgarh and may also quash the order dated 15.4.1993 and further that the further proceedings of Crl. Case No.12 of 1989 (State Vs. Hari Prasad) u/s 3/7 E.C. Act pending in the court of Special Judge, Azamgarh may be stayed.
4. On 16.8.1993 following order was passed:-
"Heard.
The learned A.G.A. prays for and is granted three weeks time to file a counter affidavit.
Further proceedings in Case No.12 of 1992 (State Vs. Hari Prasad) under Section 3/7 E.C. Act pending in the court of Special Judge, Azamgarh shall remain stayed till 23.9.1993."
5. Subsequently on 24.9.1993, following order was passed:-
"The case was on the list but could not be taken up due to fresh work. Counter affidavit has not yet been filed.
The interim order dated 16.8.1993 is extended till 22.12.1993 unless modified or vacated earlier."
6. The petition was dismissed for want of prosecution vide order dated 21.7.2010 but on an application for restoration dated 3.3.2022 along with a delay condonation application the delay condonation application was allowed and even restoration application was allowed vide order dated 31.8.2022 and the matter was restored to its original number. Subsequently on 25.9.2023 again learned counsel for the State prayed for three weeks' time to file counter affidavit which was allowed but till date no counter affidavit has been filed by learned counsel for the State despite the fact that initially time was prayed for and granted to the State on 23.9.1993 which is about 31 years back. The Court thus proceeds to hear the matter on merits.
7. The issue in the present matter is short and crisp. A FIR was lodged on 31.5.1989 by the Supply Inspector, Sadar, Azamgarh for offence under Section 3/7 Essential Commodities Act, 1955 for violation of U.P. Coal (Control) Order, 1977 (Rule 4) which was punishable under the Essential Commodities Act, 1955 with the allegation that without license slack coal was used in the brick kiln by the applicant.
8. Learned counsel for the applicant has placed before the Court para 5 of the affidavit filed in support of Application U/S 482 Cr.P.C. and has argued that in view of the law laid down in the case of M/s Soni Brick Company Vs. State of U.P. and others : AIR 1984, AWC V-IX page 267, the applicant was not required to obtain the license from the District Supply Officer/Supply Inspector/ S.D.M/ Collector for purchase and storage of such coal. It is submitted that since Rule 4 of the Coal Control Order, 1977 has been held to be ultra-vires, no offence whatsoever is made out against the applicant. Para 13 of the said judgement is being placed for the purpose of showing that U.P. Coal (Control) Order, 1977 has been quashed to the extent it applies to persons manufacturing bricks with the aid of slack coal and to the brick-kilns being run for the manufacture of bricks. The said para reads as under:-
"13. In the result, WP No. 532 of 1983, and the connected petitions Nos. 533 of 1983, 821 of 1983, 928 of 1983, 1524 of 1983, 1553 of 1983, 1610 of 1983, 1625 of 1983, 1651 of 1983, 1721 of 1983, 1839 of 1983, 1847 of 1983, 1849 of 1983, 2044 of 1983, 2047 of 1983, 2074 of 1983, 2197 of 1983 and 3479 of 1983 are allowed and the U.P. Coal (Control) Order, 1977 is quashed to the extent it applies to persons manufacturing bricks with the aid of slack coal and to the brick-kilns being run by them for the manufacture of bricks in the aforesaid manner. The opposite parties are directed not to enforce the provisions of the U.P. Coal Control Order, 1977 against the petitioners as regards their business of manufacturing bricks with slack coal."
9. Learned counsel for the applicant has further placed the judgement in the case of Vijay Narain Dube Vs. State of U.P. : 1981 (10) Allahabad Criminal Rulings page 67 and has argued that in identical circumstances, the FIR was quashed by the High Court.
10. Learned counsel for the State although argued the matter at quite length but could not dispute the legal position as was placed by placing in the said two judgements.
11. After having heard learned counsel for the parties and perusing the records, it is evident that the prosecution against the applicant is for violation of Rule 4 of the U.P. Coal (Control) Order, 1977 which is punishable under Section 3/7 of the Essential Commodities Act, 1955. The Rule 4 of the Order of 1977 has been held to be ultra-vires with regards to the use of such coal in brick kilns. The prosecution thus cannot proceed.
12. In view of the same, the present application U/S 482 Cr.P.C. is allowed. The entire proceedings of the aforesaid case and impugned order are hereby quashed.
(Samit Gopal, J.) Order Date :- 13.3.2024 Gaurav Kuls