Judgment:
Cr. M. P. No. 1519 of 2003 An Application under Section 482 of the Code of Criminal Procedure, 1973 Sitaram Prasad Keshri, son of late Motor Sao, resident of Hazaribagh Road, Barhi, P.O. & P.S. Barhi, District Hazaribagh .......... Petitioner Versus The State of Jharkhand ………. Opposite Party PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner : Mr. Shankar Lal Agarwal, Advocate For the State : Mr. V. S. Sahay, A.P.P. ___ 4. 3 .02.2015: Heard Mr. Shankar Lal Agarwal, learned counsel appearing on behalf of the petitioner and Mr. V. S. Sahay, learned counsel for the State. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Barhi P.S. Case No. 211 of 2000 corresponding to G.R. No. 2142 of 2000 (T.R. No. 273 of 2003) including the order dated 10.06.2003 passed by the learned Chief Judicial Magistrate, Hazaribagh, in which the substance of accusation for violation of the provisions of the Bihar Trade Articles (Licences Unification) Order, 1984, punishable u/s 7 of the Essential Commodities Act (E.C. Act.) has been explained. The prosecution story, which is on the basis of a First Information Report (F.I.R.) instituted by the Block Supply Officer, Barhi is to the effect that on 23.9.2000, the informant along with Sub Divisional Officer and police force conducted a raid on the godown of the petitioner. It was alleged that the petitioner and his son had been granted retail licence to deal in food grain edible oils and free sale sugar, but the godown in which the articles were found was not mentioned in the licence nor indicated at the time of granting of licence. It has been alleged that from the godown several articles were recovered and it was said that the petitioner had stored food stuffs, edible oil unauthorizedly in the godown in violation of Bihar Trade 2. Articles (Licences Unification) Order, 1984 which is punishable u/s 7 of the E.C. Act. After investigation charge-sheet was submitted by the police against one Dilip Kumar Keshri and the petitioner and pursuant thereto vide order dated 11.6.2001 cognizance was taken by the learned Chief Judicial Magistrate for the offence punishable u/s 7 of the E.C. Act. Thereafter the police papers were supplied to the petitioner on 10.6.2003 and on the same date itself, the petitioner was explained substance of acquisition with respect to the fact that during the raid the trade articles were found in excess of the limit for a retailer and for that no bills/ invoices were produced before the raiding party with respect to the purchases made. The learned counsel for the petitioner has submitted that the learned Chief Judicial Magistrate (C.J.M.) has not been empowered by the State Government to try the alleged offence in terms of Section 12A (2)(b) of the Essential Commodities Act, 1955. He has further submitted that Section 12A of the E.C. Act provides for empowering of the Magistrate by the State Government to try the cases summarily, but in respect of the same the Hon’ble High Court has empowered the C.J.M, Additional Chief Judicial Magistrate (A.C.J.M.), Sub Divisional Magistrate (S.D.M.) to try cases under the E.C. Act vide notification dated 11.5.2001 which was contrary to the provisions of Section 12A (2) (b) of the E.C. Act and in such view of the matter the entire criminal proceeding being void ab initio is liable to be quashed. He has further submitted that with respect to food stuffs u/s 5 of the E.C. Act, the Central Govt. has delegated the powers to the State Govt. to issue notification abolishing the stock limit vide letter dated 27.1.1995 and with respect to edible oil and oil seeds, the Central Govt. in 1997 had taken a decision to remove all the licencing applications. It has therefore been submitted that in absence of any storage limit, the petitioner cannot be prosecuted for such offence. The learned counsel for the State has supported the impugned order by submitting that excess quantity of trade articles were found and the same could not be explained by the petitioner to the raiding party by providing the necessary bills/ invoices and cashmemos and as such it is apparent that the petitioner was involved in black marketing 3. and therefore he was liable to be prosecuted for the offence punishable u/s 7 of the E.C. Act. After hearing the learned counsel for the parties and after going through the records, I find that the allegations against the petitioner for which substance of acquisition was explained to him was with respect to the fact that- (i) During raid the trade articles were found in excess of the limit for a retailer (ii) No bills/invoices were produced before the raiding party in respect of the purchase of the commodities. It appears that the learned C.J.M., Hazaribagh took cognizance vide order dated 11.6.2001 and thereafter on 10.6.2003 the substance of accusation was explained to the petitioner. In the case of Raj Kishore Prasad and another v. State of Bihar reported in 1999(2) East Cr C273(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 of 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 C.J.M., 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 the case of Ashok Kumar Barnwal v. State of Bihar and 4. others reported in 2002(2) JCR303(Jhr) it was held that rice, wheat, edible oil cannot be confiscated on the ground of excess stock because stock limits of such goods had been abolished. The allegations against the petitioner is of having excess stock limit and non-production of bills/ invoices with respect to the purchase of the commodities and in absence of fixation of any stock limits prevalent on the date when the raid was conducted, the petitioner cannot be prosecuted for having exceeded the storage limit. Therefore, on this score also the criminal proceeding deserves to be quashed. In view of what has been discussed, I do find merit in this application. This application is accordingly allowed and the entire criminal proceeding in connection with Barhi P.S. Case No. 211 of 2000 corresponding to G.R. No. 2142 of 2000 (T.R. No. 273 of 2003) including the order dated 10.06.2003 passed by the learned Chief Judicial Magistrate, Hazaribagh is hereby quashed. (Rongon Mukhopadhyay, J) Dated the 3rd, February, 2015 Jharkhand High Court, Ranchi MK/N.A.F.R