IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42933 of 2007 RAM BALAK PRASAD YADAV S/O LATE SOMAR YADAV R/O VILL- KHAIRA P.S. AKBARPUR, DIST. NAWADA. --- PETITIONER Versus STATE OF BIHAR . --- OPP. PARTY. For the Petitioner : Mr. D.K.Sinha, Sr. Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 04 01.09.2010 Heard both sides. Petitioner is aggrieved by the order dated 18.07.2007, passed in Nawada P.S. case no. 13 of 2006, whereby cognizance under section 406 of the Indian Penal Code, and Section 7 of the Essential Commodities Act has been taken based on the charge sheet submitted by the police on conclusion of the investigation pursuant to the institution of Nawada Nagar P.S. Case no. 13 of 2006. Petitioner is a transporter. Under an agreement he had provided certain number of trucks to the F.C.I. Authority for transportation of grains (rice) to different F.C.I. go-downs for their use in Sampurn Rojgar Yojana. It appears that altogether 15 trucks were provided by the petitioner for transportation of the grains which were laden with grains at the F.C.I. go-down. Two trucks out of the 15 were however found diverted to some other place and were seized at Nawada. It has thus been alleged that the grains laden thereon were misappropriated by the petitioner for his personal gain. It has also been alleged that they were meant for sale at higher price in black market. On these allegations the F.I.R. was lodged under Section 7 of the Essential Commodities Act as well as Section 406 of the Penal Code. The Investigating Office took up the investigation and on conclusion thereof submitted charge sheet leading to the order taking cognizance. Learned counsel for the petitioner submits that, in the facts of the present case, no case under Section 7 of the Essential Commodities Act is made out. He relies on a notification of the Government (Annexure-4), to show that there was no prohibition or ban on the sale, purchase, storage of the food grains in question. It is next contended that so far as Section 406 of the Penal Code is concerned, it is settled law that when there is a special statute the general law shall not be applicable. Learned counsel for the State, on the other hand, referred to the averments made in the counter affidavit and submitted that there is specific allegation in the F.I.R. that 02 trucks laden with Government grains were diverted at the behest of the petitioner who was appointed as the transporter by the government. It is stated that those 02 trucks were found at Nawadah whereas they were supposed to unload the grains at Kawakole and Pakribarawan for which there is a different route altogether. Allegation made in the F.I.R. that they were being misappropriated thus cannot be said to be without any substance. So far as application of Section 7 of the Essential Commodities Act is concerned, learned counsel for the State, has not made any substantial argument so far as application of Section 7 of the E.C. Act in the present case is concerned as against the transporter. I have considered the submission advanced on behalf of the parties and perused the materials on record. Section 405 of the Penal Code reads as under:- 405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. Going by the allegations contained in the F.I.R. which according to the prosecution found support in course of investigation, the property in question was entrusted to the petitioner. He had the dominion over the property. An attempt was definitely made to divert it to some other place as the F.C.I. go down where they were to be delivered were on different route altogether. In that view of the matter, going by the ingredients of section, prima facie, it can be said that offence punishable under Section 406 is made out. So far as application of Section 7 of the Essential Commodities Act is concerned, this Court in view of the submissions advanced on behalf of the petitioner is satisfied that no case under Section 7 of the Essential Commodities Act is made out. Petitioner was not a licensee. He was not found involved in selling Government grains. He was simply a transporter. Going by Annexure-4, it appears that there was no ban on the sale, purchase, storage, of the food grains and the one involved in the present case. Keeping these factors into consideration, this Court is of the view that Section 7 of the E.C. Act has no applicable in the facts of the present case. As I have earlier noted a case under Section 406 of the Penal Code can be said to be prima facie made out based on the allegations contained in the F.I.R. which found support during investigation. At the time of taking cognizance learned court below has only to satisfy about the presence of a prima facie case. Considering the scope of jurisdiction of the Court invoked, this Court is satisfied that the impugned order so far as Section 406 of the Penal Code is concerned does not require any interference. As held above, this Court quashes the impugned order so far as the same relates to application of Section 7 of the Essential Commodities Act is concerned. Consequently the application is allowed in part. The order impugned dated 18.07.2007, passed by learned Chief Judicial Magistrate, Nawada in Nawada P.S. case no. 13 of 2006 pending in the Court of Sub Divisional Judicial Magistrate, Nawada is upheld so far as application of Section 406 of the Penal Code is concerned. The order impugned dated 18.07. 2007 with respect to above noted case so far as application of Section 7 of the Essential Commodities Act is concerned, is hereby set aside. The findings aforesaid have been made by me only for the purpose of disposal of the present case. It shall be open to the petitioner to raise/agitate all these issues at the relevant stage of the proceeding. Application stands disposed of. Sym ( Kishore K. Mandal, J.)