B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated August 18, 1988, passed by the Special Judge, Essential Commodities Act, Sri Ganganagar, by which the learned Special Judge framed charges against the petitioners Under Section 3/7 of the Essential Commodities Act and Under-Sections 406 and 120B of the Indian Penal Code.
2. Mr. Ramcharan, Assistant District Supply Officer, lodged a First Information Report on April 2, 1984, Under Section 3/7 of the Essential Commodities Act and Sections 406 and 411 of the Indian Penal Code against Mohan Lal and Krishna Kumar with the allegations that on April 1, 1984, on an information given by some 'MUKHBIR' he with the help of the police party, went to the house of Mohan Lal, situated at 15-P Block, Sri Ganganagar, and found a tractor with a Iroily, bearing No. RSC 8280, standing in front of his house and the trolly of it was loaded with levy cement. On enquiry, he was informed by the petitioner Mohanlal that he got the contract of construction of a water-pond in village 10-S.D.S. by the Public Health and Engineering Department, for which the cement was issued from the godown of the P.H.E.D. and out of which he has taken 30 bags of levy cement for the personal use of his nephew Krishna Kumar and, therefore, this cement has been kept in the house. An enquiry regarding the permit was made, but neither any permit was shown nor was any reason given as to why the levy cement was kept in the house. It was further mentioned that the accused have misused the cement issued to him and, therefore, a prayer was made for taking proper action against the accused. On this information, a case Under Section 3/7 of the Essential Commodities Act and Sections 406 and 411 1PC was registered and the police, after necessary investigation present a Final Report, so far as accused Mohan Lal is concerned, but the police submitted the challan against accused Krishna Kumar Under Section 3/7 of the Essentiual Commoidities Act and Sections 406 and 411 IPC. After the submission of the challan, an application was moved by the learned Public Prosecutor for taking cognizance against accused Mohanlal also, and the learned Special Judge took the cognizance against accused Mohan Lal, also. After the service of the summons on Krishan Kumar and Mohan Lal, the learned Special Judge, on August 18, 1988, after giving an oportunity of hearing to the petitioners, framed the charges against them Under Section 3/7 of the Essential Commodities Act and section 406 and 120B, IPC. It is against this order, framing the charges, that the petitioners have preferred this petition Under Section 482 of the Code of Criminal Procedure.
3. Heard learned counsel for the petitioners and the learned Public Prosecutor.
4. It is contended by the learned counsel for the petitioner that the Rajasthan Cement (Licensing and Control) Order, 1974 (hereinafter referred to as 'the Order, 1974') is not applicable in the case of a private party as it deals with (he licensee only and if at all it deals with the private dealer only and not with the Government Contractor. It has, also, been contended on behalf of the petitioners that there is an agreement (Schedule-I) on record, according to which if the cost of the stores supplied by the department, if found damaged, lest of issued in excess of the requiremenmt and not returned or missing, shall be recovered at twice the issue rate of the stores. Thus, at the most is a civil liability of the petitioners and no criminal liability can be fastened against the petitioners. It has, also, been contended that the petitioners fulfilled the complete contract and final bill was submitted. Lastly, it was submitted that if at all there is any violation, then the violation is only with respect of the licence only and not with respect to the Order, 1974. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned Special Judge and submitted that no illegality has been committed by the learned lower Court in framing the charges against the petitioner.
5. I have considered the rival submissions made by the learned counsel for the parties.
6. Now, so far as the first contention raised by the learned counsel for the petitioners as to whether the provisions of the Order, 1974 are applicable in the case of a government contractor and it deals only with the licence under the Order, 1974 is concerned suffice it to say that this is not the correct position. Clauses (19),and (21) of the Order, 1974 are relevant for the present purpose, which read as under:
19-Disposal of Cement: Except with the prior written permission of the authority who issued the authorisation or permit, no person shall dispose of cement in any manner other than specified in the authorisation or permit.
21-Prohibition of selling, or buying at higher price: No person shall sell or offer for sale and no person shall buy cement at a price higher than the fixed under Clause 10 of the Cement Control Order, 1967.
A bare reading of these Clauses of the Order, 1974 clearly shows that the Order, 1974 is applicable to the private person, also. When a contravention is made by the individual person of these two provisions, then the provisions of the Order, 1974 become applicable and as the contravention of the Order, 1974 is punishable Under Section 3/7 of the Essential Commodities Act, therefore, the person, contravening these provisions, can be prosecuted under this section. It is not in dispute that 1000 bags of cement were given to the petitioner Mohan Lal for the construction of the waterpond at 10 S.D.S. tehsil Sadulsahar, while according to the complaint, the accused contractor Mohan Lal gave 30 bags to Krishna Kumar, which was in contravention of the Clause 19 of the Order, 7974. According to Clause 19 of the Order, 1974 no person could have disposed of the cement in any manner than the one specified in authorisation or permit except with the prior written permission of the authority, who issued the authorisation letter. In this view of the matter, prima facie, a case to proceed-with against the petitioner, for the contravention of Clause 19 of the Order, 1974 has been made-out and, the therefore, in my view, the learned Special Judge has not committed any illegality in framing the charge Under Section 3/7 of the Essential Comodities Act. Similar is the case with regard to the other two charges. The ingredients of these two charges are, also, present in this case and the learned lower Court has not committed any illegality in framing the charges against the petitioners Under Sections 406 and 120B, IPC, also.
7. The next question, which requires consideration is that when a provision has been made in the contract that in case the excess cement issued by the department is not returned or damaged then the department will be entitled to the amount doubt the issue rate of the store. By making a provision for the recovery of the amount of the goods, given by the department for performing the contractual liability, will not absolve the petitioner from any offence with respect to the controlled-commodity given by the department for specific purpose, suffice it to say that both the recovery proceedings and criminal proceedings can be initiated.
8. At the time of framing the charges, the enquiry of the Court is limited to the extent: whether the facts emerging from the record and the documents, constitute the offence with which the accused is charged and at this stage, the Court is not required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom, taken at their face value, disclose the ingredients constituting the offence. Even strong suspicion at this stage is sufficient to frame the charge against the accused. From the materials available on record, I am of the opinion that prima facie the materials for framing the charges exist in the present case and the rest is the matter of trial. It is not expected that this Court, while exercising its powers Under Section 482, Cr. PC should proceed to discuss all such evidence available on record to see whether the evidence constitutes the offence, because if that will be done then it may prejudice the case of the petitioners themselves and that will amount to discharging the functions of the trial Court itself. By evaluating the evidence on record, I am simply to satisfy myself whether prima facie there is some material existing on record which justify the framing of the charges against the petitioners I am of the view that there are sufficient materials on record, on the basis of which the charges, as aforesaid, can be framed against the accused-petitioners. In this view of the matter, the learned Special Judge has not committed any illegality in framing the charges against the petitioners.
9. Consequently, this miscellaneous petition, filed by the petitioners, has got no force and is hereby dismissed.