Patna High Court - Orders
Pramod Paswan & Anr. vs The State Of Bihar on 9 May, 2014
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.20503 of 2013
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1. Pramod Paswan S/O Sahni Paswan Resident Of Village Arariya Nagar
Palika Ward No. 18, P.S. Arariya, District Arariya.
2. Md. Abid S/O Md. Liyakat Resident Of Maulvi Tola, P.S. Arariya,
District Arariya.
.... .... Petitioners
Versus
The State of Bihar
.... .... Opposite Party
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
2 09-05-2014Heard learned counsel for the petitioners and learned counsel for the State.
2. The present application under Section 482 of the Code of Criminal Procedure has been filed for quashing of the order dated 15th of January, 2013 passed by the learned Chief Judicial Magistrate, Araria in Palasi P.S. Case No. 36 of 2012 by which he has taken cognizance of the offence under Section 7 of the E.C. Act against the petitioners and one another namely, Md. Alam.
3. The prosecution case, in short, is that on 14th of April, 2012, on the basis of secret information, a truck bearing Registration Number BR-38C/1219 coming from Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 2/9 Araria was intercepted near Denga Chowk. The truck was then taken to Palasi Police Station where in presence of the driver and khalasi of the truck, a search was made. It was found that the truck was loaded with 90 bags filled with 45 quintals of sugar, 20 cartons filled with 300 litres of mustard oil, 175 tins filled with 2625 litres of mustard oil, 3 cartons filled with 30 kg of Dalda, 25 bags filled with 12.50 quintals of Chana and 10 bags filled with 5 quintals of Maida. The petitioner no. 1, Pramod Paswan who is said to be driver of the truck in question disclosed that the aforesaid articles belonged to co-accused Md. Alam of Kaliaganj and were being carried on the truck to his place at Kaliaganj. Since Md. Alam did not come forward to claim the aforesaid articles, it was suspected that the goods were being carried for black marketing. Since documents were not shown it was also suspected that the aforesaid articles were being carried in order to evade tax.
4. On the basis of the above allegations, a written report submitted by the Block Supply Officer, Palasi, Palasi P.S. Case No. 36 of 2012 dated 14th of April, 2012 was registered for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act") against the petitioners who were driver and khalasi respectively of said truck. The aforesaid articles and the truck were seized by the police. Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 3/9
5. The case was investigated by the police and on conclusion of investigation a report under Section 173 of the Code of Criminal Procedure was submitted in the Court pursuant to which the Chief Judicial Magistrate, Araria took cognizance of the offence punishable under Section 7 of the Act against the accused persons named in the F.I.R. vide order dated 15th of January, 2013.
6. Learned counsel for the petitioners has submitted that even if, the entire prosecution case is accepted on its face value, no offence under Section 7 of the Act would be made out against the petitioners. He contended that the articles in question such as sugar, mustard oil, Dalda, Chana, Pulse, Maida etc. are not controlled items. The Central Government as well as the State Government have already deleted all the above items from the schedule of the Bihar Trade Articles (License Unification) Order, 1984 as well as Bihar Essential Articles (display of numbers and stocks) Order, 1977. It has been further contended that on and from 15th of February, 2002, there is no licensing order workable and enforceable in the eye of law on the above commodities and no license is required for carrying on business of the above commodities. Learned counsel has further contended that there is no storage limit; there is no price control; and there is no Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 4/9 requirement to maintain the stock register, cash memo etc. for sale and purchase of the above commodities.
7. In support of his contention, learned counsel for the petitioners has placed reliance on the notification issued by the Central Government bearing Notification No. GSR-104(E) dated 15.2.2002 which reads as under : -
"MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION (Department of Consumer Affairs) ORDER New Delhi, the 15th February, 2002 G.S.R. 104(E) - Whereas the Central Government is of the opinion that it is necessary and expedient to do so for securing the availability of commodities specified in the Order at fair prices throughout the counter.
Now, therefore, in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government hereby makes the following Order :-
1. Short Title, Extent and Commencement
(a) This Order may be called the Removal of (Licensing requirements, stock limits and Movement Restrictions) on Specified Foodstuffs Order, 2002.
(b) It extends to all the States and Union
Territories of India.
(c) It shall come into force after thirty days from the date of publication in the Official Gazette. Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 5/9
2. Definitions
(i) "Dealer" means any person engaged in the business of purchase, movement, sale, supply, distribution or storage for sale of any of the commodities specified in clause 3 of this Order, directly or otherwise, whether as a wholesaler or retailer and whether or not in conjunction with any other business and his representative or agent.
(ii) "State Government" includes Administration of a Union territory.
3. With the coming into effect of this Order any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarsegrains, sugar, edible oilseeds and edible oils and shall not require a permit or license therefor under any order issue under the Essential Commodities Act, 1955.
4. The provisions of this Order shall take effect notwithstanding anything to the contrary in any Order made by a State Government before the commencement of this Order except as respects anything done, or omitted to be done, thereunder before such commencement.
5. Issue of any order by the State Governments under powers delegated in GSR 452(E) dated the 25th October, 1972 issued by the Government of India in the then Ministry of Agriculture (Department of Food) and GSR 800 dated the 9th June, 1978 issued by the Government of India in Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 6/9 the then Ministry of Agriculture and Irrigation (Department of Food) for regulating by licenses, permit or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any of the commodities specified in clause 3 shall require the prior concurrence of the Central Government.
6. Nothing contained in this Order shall affect the operation of the Public Distribution System (Control) Order, 2001 issued by the Central Government and orders of the State Government issued in pursuance thereof." (Underlining mine for emphasis)
8. He contended that the State Government has also issued a notification vide Memo No. 2354 dated 17.7.2003 in consonance with the notification issued by the Central Government which reads as under:-
"Food Supply & Commerce Department, Memo No. 2354 vk- ok- dated 17.07.2003:- In exercise of the powers conferred by Section-3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with order dated 15.02.2002. G.S.R. 104 (E) of Ministry of Consumer Affairs, Food and Public Distribution Government of India, and with the prior concurrence of Central Government, the Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 7/9 Governor of Bihar is pleased to make the following amendment in the Bihar Trade Articles (Licences Unification) Order 1984, namely :-
Amendment The word and baraket "(Sugar, edible oil seeds and edible oils)" used in Schedule I of Bihar Trade Articles (Licences Unification) Order, 1984, are hereby deleted. Nothing contained in this Notification will effect the operation of subsidized edible oil and Sugar meant for BPL families and purchase, sale as well as storage through Government A/c.
2. With the coming into effect of this Order, any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of Sugar, edible oil seeds and edible oils and shall not require a permit or licence therefore under any order issued under the Essential Commodities Act 1955. Wheat, paddy/rice & coarse grains will be effective in accordance with Notification G.S.R. 5 dated 26.10.02 of Food, Supply & Commerce Department and related previous Notifications shall not effect.
3. Nothing contained in this Notification shall effect the Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 8/9 operation of the Public Distribution System (Control) Order 2001 issued by the Central Government and order/notification of Bihar Government issued in pursuance thereof."
9. It has been further contended that the only allegation against the petitioners is that they were carrying the trade articles for sale in the black market. According to the petitioners, there was no fixation of price of the articles in question and there is no other evidence to support that they were being carried in violation of any law.
10 Learned counsel for the State concedes to the submissions, advanced on behalf of the petitioners. He has submitted that in view of the above notifications issued by the Central and State Government though the ingredients of the offence punishable under Section 7 of the E.C. Act may not be attracted on the facts of the present case, but the petitioners can be held liable for the offence punishable under the Value Added Tax Act, 2005.
11. I have heard the rival submissions made by the learned counsel for the parties.
12. I find sufficient merit in the contention raised by the learned counsel for the petitioners. Merely because some trade Patna High Court Cr.Misc. No.20503 of 2013 (2) dt.09-05-2014 9/9 articles were being carried on a truck, it cannot be inferred that they were being carried for sale in the black market. Further, if on the date of search and seizure no licensing order for carrying on business of the above trade articles was required; no storage limit was fixed; no movement restrictions were applicable; and no fixation of price was applicable, the very initiation of criminal proceeding cannot be justified. It is not the case of the prosecution that the trade articles being carried on the truck were subsidized trade articles of any scheme of the Government or were covered by Public Distribution System (Control) Order, 2001 issued by the Central Government and Orders/Notifications of Bihar Government issued in pursuance thereof.
13. In that view of the matter, allowing the prosecution of the petitioners to continue would be an abuse of the process of Court. Accordingly, the impugned order dated 15th of January, 2013 passed by the learned Chief Judicial Magistrate, Araria in Palasi P.S. Case No. 36 of 2012, so far as the petitioners are concerned, is set aside. The petitioners are ordered to be discharged from the aforesaid case.
(Ashwani Kumar Singh, J) Jagdish/-