Jharkhand High Court
Kailash Chand Jain vs State Of Jharkhand & Anr on 25 August, 2017
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. M. P. No. 378 of 2007
Kailash Chand Jain, S/o Kundan Lal Jain, Resident of Kali Bari Road,
P.O. & P.S.:-Sadar, District :- Hazaribagh, Jharkhand.
..... Petitioner(s)
Versus
1.State of Jharkhand.
2.Jai Prakash Jha, Executive Magistrate, Bermo at Tenughat, P.O. &
P.S.:-Bermo, District :- Bokaro .... Opp. Party(s)
CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
For the Appellant(s) : Mr. Kalyan Roy, Advocate.
For the State : Mr. S. K. Deo, APP
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C.A.V. On 28.07.2017 Pronounced on 25. 08.2017.
1. The petitioner, Kailash Chand Jain has filed the instant
quashing application with a prayer for quashing the F.I.R. and
entire criminal proceeding in connection with Gomia P.S. Case
No.06 of 2006, dated 05.01.2006 (G.R. No.29 of 2006) filed under
Sections 285/286 of the Indian Penal Code, and Section 7/10 of the
Essential Commodities Act and Section 5 of the Explosive
Substances Act, pending in the Court of learned ACJM, Bermo at
Tenughat.
2. On the basis of the prayer made vide order dated
24.04.2009to the extent that the counsel for the petitioner proposed to file amendment application making prayer for quashing of the order taking cognizance also. The matter was adjourned and it further appears that under order dated 21.06.2010, further proceeding in the court below was stayed and further notice was issued to the Opp. Party No.2.
3. It further appears that the order passed by this Court in I.A. No.1574 of 2009, the application was allowed and the petitioner was permitted to make necessary correction and also to challenge the cognizance order.
4. On receipt of the L.C.R., the case was assigned to this Court after taking permission from the Hon'ble Acting Chief Justice and the matter was taken on 21.04.2017.
5. The facts giving rise to instant case is as follows :- One J. P. Jha, Executive Magistrate, Bermo at Tenughat, gave a written report to the Officer in charge of Gomia Police Station, on 30.12.2005, alleging therein, that on the direction of the Sub Divisional Officer, Bermo at Tenughat vide Letter No.1444/go. dated 22.12.2005 under the directions of Deputy Commissioner, Bokaro vide Letter No.466/Aa. Dated 01.12.2005, Godown of Padmawati Gas Agency was inspected and 8 nos. of filled gas cylinders, 17 numbers of empty cylinders and 29 numbers of gas stoves were found and godown was seized in presence of witnesses.
6. Learned counsel for the petitioner during course of arguments submits that the Deputy Chief Controller of Explosives, Hazaribagh, has issued the license to store compressed gas cylinders in favour of the petitioner under the provisions of Indian Explosive Act, 1984. The licence was valid up-to 31.03.2006. The licence under Rule 57 & 58 was granted for the possession of cylinders and for storing the same.
7. He further submits that the H.P.C.L. and the Central Coalfield Limited entered into an agreement for supply and distribution of L.P.G. Cylinders for their employees residing in the remote collieries. He further submits that the C.C.L. Invited tenders and the petitioner was selected for distribution of L.P.G. Cylinders in the collieries within Ramgarh and Argada Police Stations. He further submits that the petitioner was entrusted by the C.C.L. authorities to open an extension counter at Shwang, Kathara area for distribution of L.P.G. Cylinders which was duly approved by the H.P.C.L. He further submits that an agreement to that effect has also been executed by the C.C.L. authorities on 18.10.2004.
8. It is further submitted that LPG cylinders are kept at its Godown situated at Ramgarh. The cylinders are being sent to the Shwang Colliery through the vehicle twice or thrice in a month, as per the requirement.
9. It is further submitted that for the purpose of distribution of Cylinders, an office was also required and a quarter situated in a remote place has been allotted in favour of the petitioner on monthly rent of Rs.815/-. It has further been submitted that as per the demand in the Shwang Colliery, cylinders are being sent to the said Colliery from the godown at Ramgarh in the morning and the cylinders are distributed throughout the day from the local office of the Kathara Colliery and the vehicle came back to Ramgarh Godown with empty cylinders and left out filled cylinders. The working hours in the Extension Counter is 10 a.m. to 3 p.m. and after 3 p.m., the vehicle came back to Ramgarh along with empty cylinders.
10. It has further been submitted that the raid was conducted at 1 p.m., on 30.12.2005 and 8 filled cylinders were found, out of 8 cylinders 5 were already issued to customers and they had requested the Agency to keep the cylinders for some time as they have some work, rest 3 cylinders were kept by the Company for an emergency requirement of the C.C.L. employees.
11. It is further submitted that the office which was allotted by the CCL authorities for distribution of Cylinders is situated in a solitary place. It is further submitted that the petitioner has valid licence for possessing and distributing of cylinders, there is no violation of Section 7 /10 of the Essential Commodities Act. The petitioner has also valid licence under the Indian Explosive Act and no question of committing offence of Section 5 of the Act arises.
12. It is further submitted that Sections 285 and 286 of I.P.C. has no application as the petitioner never utilized the premises for storing the L.P.G. Cylinders.
13. On the other hand, the Deputy S.P. (HQ), Bokaro- Opp. Party (State) filed counter-affidavit on 03.11.2015, in which it has been mentioned that from perusal of the petition and its annexure, it appears that the FIR has been registered by the Executive Magistrate on 30.12.2005 on being instructed by the office of Deputy Commissioner, Bokaro, vide Letter No.466 dated 01.12.2005, and SDO, Bermo at Tenughat vide Letter NO.144 dated 22.12.2005. It further transpires that 8 numbers of filled cylinders containing LPG was recovered along with some 17 numbers of empty cylinders and 29 Gas stoves were also recovered. The said recovery was made in accordance with law as the petitioner was found acting against the provisions of law pertaining to Indian Explosives Act and Essential Commodities Act.
14. It has further been mentioned that the petitioner has filed the Explosive Licence as Annexure-2 to the main application, which confirms that the illegal commercial practices were being carried out beyond the licensed area of operation. It further transpires from the Annexure-5 to the main application that the competent officials of CCL, Kathara, have entered into an agreement with the petitioner for allowing him to operate extension counter, but necessary fulfillment of statutory obligations i.e. obtaining explosives license for the said premises has not been obtained, nor there is any whisper either on the part of CCL/HPCL officials. It is relevant to state here that Annexure-7 series filed by the petitioner, during pendency of the investigation and as such, denied, rather it gives another clue that the investigation was tried to be affected by getting the affidavits executed by the witnesses and not allowing them to be examined by the I.O.
15. It has further been mentioned that in-reply to Para 7 to 13, 15 and 18, it is most humbly submitted that the same are false and as such, denied. The license was issued for the Ramgarh Area only and not for the area where the filled gas cylinders were stored and subsequently seized. It is a clear violation of the acts and rules of Indian Explosives Act not only by the petitioner, but also by the competent officials of CCL/HPCL as well. It is further mentioned that in-reply to Para 20 to 25, it is most humbly submitted that the same are baseless and far from truth in the facts appearing in case diary. Para 20 of the case diary speaks about the place of seizure, which clearly goes to corroborate that the illegal activity was being carried out by the petitioner.
16. It was further submitted on behalf of the petitioner that from the perusal of the written report filed by Jai Prakash Jha, Executive Magistrate, Bermo at Tenughat in which he has mentioned that there is violation of Sections 7/10 of the Essential Commodities Act, but he has not mentioned that under which control order under the Essential Commodities Act has been violated. It is further submitted that cognizance under Section 7/10 of the Essential Commodities Act by the trial court is bad in law.
17. After hearing the parties and going through the lower court records, the following facts are admitted in this case:-
(a) Vide Annexure-4 relied upon by the petitioner which is the Letter dated 8th April, 2005, written by the Regional Manager, Hindustan Petroleum Corporation Limited, Patna to M/s Padmavati H.P. Gas Agency appertaining to release of Gas Connection to the employees of CCL, Kathara and Arganda. The Hindustan Petroleum Corporation Limited vide letter dated 25.10.2004 acknowledged the fact to release Gas Connections to the employees of CCL, Kathara & Arganda, as per your request and it was ordered that Hazaribagh LPG Plant will release the EMRs towards New Connections depending on the availability of equipments.
(b)Further pursuant to the Annexure-5 further reveals that an agreement was arrived at in between CCL, Kathara Area and Sri Kailash Chand Jain (petitioner) whereby it was agreed that the licensee (petitioner) will maintain two extension counters at GM Kathara area, one at Swang and another at Govindpur in the name of said Gas Agency, Bazar Stand, Ramgarh cantt. and the licensee has agreed to bear all the costs of transportation including related to LPG supply.
18. For better appreciation of the facts and questions of law involved in this case, it is Section 3 of the Essential Commodities Act, 1955 which reads as under and which is taken note of :-
"3. Power to control production, supply, distribution, etc. of essential commodities :- (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, (or securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generally of the powers conferred by sub-section (1), an order made thereunder may provide;
(a) for regulating, by licenses, permits or otherwise, the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, or of specified food crops;
(c ) for controlling the price at which any essential commodity may be bought or sold;
(d) for regulating by licenses, permits or otherwise storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity:--
(a) to sell the whole or specified part of the quantity held in stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or an agent of such Government or to a Corporation owned or controlled by such Government or to such other persons or class of persons and in such circumstances, as may be specified in the order."
In terms of Section 3 of the Essential Commodities Act, different control orders have been framed by the Central Government, violation thereof is punishable under Section 7 of the Essential Commodities Act.
Sections 7 & 10 of the Essential Commodities Act, 1955 reads as under :-
"7. Penalties - (1) [if any person contravenes any order made under Section 3 -
(a) he shall be punishable--
(i) in the case of an Order made with reference to clause
(h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine; and
(ii) in the case of other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine;
Provided that the Court may for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.
(b) any property in respect of which the order has been contravened shall be forfeited to the Government.
(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the court so orders, be forfeited to the Government.] [(2) if any person to whom a direction is given under Clause
(b) of sub-section (4) of Section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:
Provided that the Court may, for any adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.
(2-A) if any person convicted of an offence under sub-clause
(ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with, imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine;
Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
(2-B) For the purposes of sub-sections (1), (2) and (2A) the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reasons for a term of less than three months or six months, as the case may be].
[(3) Where, a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub- section for contravention of an order in respect of an essential commodity, the Court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order direct that that person shall not carry on any business in that essential commodity for such period not being less than six month, as may be specified by the Court in the Order.]"
"10. Offences by companies :- (1) if the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, secretary, or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against any punished accordingly."
19. In the impugned order, while order taking cognizance by SDJM, Bermo at Tenughat, it appears that nowhere it is mentioned that which control order has been violated, which is punishable under Sections 7 /10 of the Essential Commodities Act.
20. It appears that learned SDJM without giving serious note, passed the order taking cognizance.
21. Similarly, he has also taken cognizance under Section 5 of the Explosive Substances Act.
Section 5 of the Explosive Substances Act reads as under :-
"5. Punishment for making or possessing explosives under suspicious circumstances- Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished.
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category or explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
22. It further appears from the appraisal of the entire order- sheets of the records of the case the consent of the District Magistrate has not been obtained for the trial under Section 5 of the Explosive Substances Act.
23. Taking all these facts and circumstances and records of the case, the order taking cognizance so far under Sections 7/10 of the Essential Commodities Act suffers from non-appreciation of facts and provisions /law and the order taking cognizance under Sections 7/10 of the E.C. Act, is hereby set aside.
24. The order taking cognizance so far under Sections 285/286 is hereby upheld and also under Section 5 of the Explosive Substances Act, but the trial under Section 5 of the Explosive Substances Act can only proceed when the consent of the D.C. is obtained.
25. The matter is remitted back to the learned trial court and is directed to pass the order afresh so far offence punishable under Sections 7/10 of the E.C. Act is concerned within 8 weeks of the receipt of a copy of the order.
26. In the result, this Cr.M.P. Stands allowed, but in part.
Sandeep/ (Anant Bijay Singh, J.)