IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7053 of 2008 JARMAN PRASAD, SON OF LATE CHHOTU PRASAD, RESIDENT OF SARVODAYANAGAR, P.S. DEEPNAGAR, DISTRICT- NALANDA…………………………………………………...PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SUPERINTENDENT, BIHAR STATE WAREHOUSING CORPORATION, RAMCHANDRAPUR, BIHARSHARIF AT NALANDA. ----------- For the Petitioner : M/s. N.K. Agrawal, Senior Advocate and D.N. Tiwary, Advocate. For the State : Mr. Jharkhandi Upadhayay, A.P.P. ---------- 2. 22.10.2008. This application is for quashing of the entire criminal prosecution against the petitioner, who is one of the F.I.R. named accused of Bihar (Sohsarai) P.S. Case No.70 of 2007 registered for the offences under Sections 409/420/467/468/471/477-A/120-B I.P.C. as also Section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act.”). Briefly stated, the prosecution case as based on the written report of one Umesh Chandra Upadhaya, Supply Inspector, is that on 28.2.2007 the Sub Divisional Magistrate, Bihar, informed him over telephone that 200 bags of wheat have been taken out illegally from the godown of the Bihar State Warehousing Corporation, Biharsharif on a truck bearing Registration No.BR-21A-6945 and he was directed to seize the wheat and the truck and initiate legal action against the accused persons. On the basis of the said direction, the aforesaid truck alongwith 200 bags of wheat was seized near by pass turning No.17. - 2 - It is also alleged that the truck driver and khalasi , namely, Upendra Paswan and Sikandar Paswan respectively disclosed that the truck was hired by Sunil Kumar and Raju Kumar of Ramchandrapur who had requested for transport of the wheat to Khandakpar. The driver had also shown the gate pass of Bihar State Warehousing Corporation which was dated 28.2.2007 bearing Serial No.8110. It is also mentioned therein that Truck No.BR-21A-6945 was carrying 200 bags of wheat, D.M., S.F.C., Nalanda, through District Incharge Nalanda but the place of delivery of the wheat was not mentioned on the gate pass. The informant suspected that the wheat was being sent for black marketing in conspiracy with S.F.C Lifting Incharge, Mahesh Prasad, Transporting Incharge, Sadhu Yadav and Divisional Manager, Sarwan Prasad. It is mentioned that since the office hours of the godown had expired, the informant alongwith other Officers visited the office of the Warehousing Corporation on 1.3.2007 located in Ramchandrapur Bazar Samiti premises where it was found that the office was open but the gate was closed. The Divisional Manager was not present but one Shivbalak Rajbanshi who was present managed to escape. One Nityanand Pandey who was present in the office disclosed that volume of gate pass Serial No.8101-8200 was on the table but the same was not found in the almirah. There was no account of gate pass no.8110 which contained the signature of Shivbalak Rajbanshi. Nityanand Pandey producede „M” form of the date 28.2.2007 but there was no mentioned of the seized truck number and quantity of the wheat on the same dispatch memo. Accordingly, on the basis of the said written - 3 - report, the aforesaid P.S. Case was registered. The learned counsel for the petitioner has raised following six points in assailing the F.I.R.: (i). Whether the petitioner was falsely implicated and whether the false F.I.R. was registered on 28.2.2007 on the basis of statement of Driver Upendra Paswan and Khalasi Sikandar Paswan regarding alleged 200 bags of wheat belongs from Bihar State Warehousing Corporation whereas on 28.2.2007 godwon of Corporation had no wheat in the store which shall be proved through the master ledger as such whether in such circumstances the F.I.R. can be justified in the eye of law? (ii). Whether the petitioner can be implicated for misappropriation of 200 bag of wheat whereas there is not a single gram wheat is in stroe/godwon on 28.2.2007 which shall be proved through the verification of master ledger as such whether the informant ought to have searched the godown and stock register before registering the F.I.R.? (iii). Whether stock register Anneuxre-3 falsify the F.I.R. which was registered without domestic enquiry to the godown and whether the fact and circumstances shows that the petitioner is innocent and was falsely impolicated upon a statement of truck driver and khalasi ? (iv). Whether the present F.I.R. was blasted by claimant of wheat as such the same wheat which was recovered from - 4 - the truck was claimed by Vivekanand Prassad and Sanjay Kumar and Kundan Kumar by filing application in the court of C.J.M., Nalanda at Biharsharif as such even on this ground and where the stock of Bihar State Warehousing Corporation was „Nil‟ whether the F.I.R. can sustain in the eye of law? (v). Whether the F.I.R. is legal and valid on the strength of above fact which out rightly falsify the F.I.R. as such whether the F.I.R. can sustain in the eye of law? (vi). Whether the F.I.R. was registered to harass the petitioner and to settle the grudge, vengeance and with malafied intention as such whether the F.I.R. was lodged for oblique motive? Supporting his submissions, the learned counsel for the petitioner submitted that the Bihar State Warehousing Corporation and Bihar State Food and Civil Supply Corporation (BSFC) etc. are the organizations of the State Government and are exempted from prosecution under clause 31(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984(hereinafter referred to as “Unification Order”) and/or clause 16 of the Fair Price Shop Order, 2007 and the provisions of the two orders are similar. The learned counsel also sought to submit that it has not been specifically stated in the report that as to which Orders made under Section 3 of the E.C. Act have been violated by the petitioner who happens to be an Officer of Bihar State Warehousing Corporation. - 5 - It was also sought to be submitted that from the facts and the circumstances that factually the seized wheat had no concern with the State Warehousing Corporation as on 28.2.2007 the stock of wheat in the godown of the Corporation was nil since 506 bags weighing 250 quintals 84 kgs. available in the godown on 24.2.2007 had been released on that very date by order No.W/97 of one Mahesh Prasadh, Lifting Incharge, State Food Corporation, Nalanda, which ought to have been appreciated by the informant before he lodged the F.I.R. This fact of there being no storage of wheat in the godown on 27.2.2007 is buttressed by the entries made in the General Stock Register. On the aforesaid premise, it was submitted that the question of lifting or black marketing wheat from the godwon of Warehousing Corporation was a plea in futility. The learned counsel further sought to submit that interestingly it was to be noted that the alleged seized wheat was claimed by three agriculturists, namely, Vivekanand Prasad, Sanjay Kumar and Kundan Kumar on 30.3.2007 , all of whom had filed a petition before the learned Chief Judicial Magistrate, Nalanda and the learned Magistrate, had called for a report from the police. This only goes to show that the State Warehousing Corporation had never claimed the wheat to be theirs and no confiscation proceeding had been filed by the Warehousing Corporation which amply goes to show that the alleged seized wheat did not belong to the Corporation. The learned counsel for the State is not in a position to refute any of the submissions advanced by the learned counsel for the - 6 - petitioners. In Dinesh Prasad Singh alias Dinesh Singh Vs. State of Bihar(Criminal Misc. No.43729 of 2006 disposed of on 10.9.2008) a Bench of this Court placing reliance on the case of Braj Kishore Prasad Versus State of Bihar, reported in 2004(2) PLJR 661 had held that the Unification Order does not apply to the employees of the State Food Corporation. In that decision, it had also been observed that where there is no mention of violation of any Order made under Section 3 of the E.C. Act, in absence thereof action under Section 7 of the E.C. Act is not called for. In view of what has been held above, there is no necessity of dealing with the other aspect since these two grounds are sufficient to allow this application. Accordingly, the criminal prosecution including the subsequent order dated 15.1.2008, taking cognizance, so far as the petitioner is concerned, is hereby quashed and the application is allowed. P.S. (Abhijit Sinha,J)