IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43729 of 2006 DINESH PRASAD SINGH @ DINESH SINGH Versus STATE OF BIHAR ----------- 9. 10.9.2008. Heard Sri N.K. Agrawal, Senior Advocate, the learned counsel for the petitioner and Sri Jharkhandi Upadhayay, the learned A.P.P. for the State. The petitioner who is an Assistant Godown Manager, Rajbansi Nagar Godown of F.C.I. Godown and is named as one of the F.I.R. named accused in Lakhisarai P.S. Case No.272 of 2005, G.R. No.658 of 2005, has prayed for the quashing of the order dated 7.9.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Lakhisarai, whereby he has taken cognizance against him under Section 7 of the Essential Commodities Act(hereinafter referred to as “the E.C. Act”) having differed from the chargesheet submitted by the police wherein the petitioner was not sent up for trial. The prosecution case is based on a written report submitted by Supply Inspector, Lakhisarai to the Officer Incharge of Lakhisarai P.S. on 25.8.2005 inter alia stating that he found two tractors loaded with wheat of F.C.I. near west of Vidyapith Chowk, Lakhisarai, which was being loaded in the godown of Binod Sao, Manoj Sao and Sanoj Sao which had been taken on rent by them from Dasrath Sah. In the godown itself 783 bags of wheat were found stored, all with the marking of F.C.I. and the names of purchase centre were also mentioned. All these 647 bags were machine stitched whereas 116 bags were hand stitched. It has further been stated that out of the two - 2 - tractors, on one tractor 42 bags of wheat had been loaded whereas on the second tractor 128 bags of wheat was loaded. These bags were also machine stitched with the marking of F.C.I. It is said that godown owner Sanoj Sao could not produce any paper for the said wheat found on the two tractors and the informant formed an opinion that they had been brought from the S.F.C. Godown Vyapar Mandal by the two tractors and were being unloaded in the godowns of Binod Sao, Manoj Sao and Sanoj Sao. The informant, therefore, went to the S.F.C. Godown for verification but the said godown was found closed and on the instruction of S.D.O. the godown was sealed. It is further alleged that the petitioner was given information to appear with all papers but he failed to appear before the authorities of the S.F.C. Godown till 9 P.M. and as such the S.F.C. godown was sealed and the present case was filed under Section 7 of the E.C. Act. It has been submitted on behalf of the petitioner that he is innocent and has been falsely implicated in this case. In this context, it was submitted that the matter was enquired and examined by the Head Office of Bihar State Food and Civil Supply Corporation, Patna, and on verification of all documents, reports and records it was found that there was no irregularity in the godown of S.F.C. Vyapar Mandal, Lakhisarai, which would be clear from the letter issued by the Chief Vigilance Officer, B.S.F.C., Patna, a copy where of is appended as Annexure-4 to the application. It was further submitted that under Clause 31(2) of the Bihar Trade Articles (Licenses Unification) Order, the provisions of the Unification Order shall not apply to the - 3 - employees and that the State Government vide its letter No.2467 dated 29.5.1998 directed that before launching prosecution against employee of S.F.C. prior sanction of Food Commissioner is necessary. It was further submitted that although chargesheet was not submitted against the petitioner yet the learned Magistrate has taken cognizance as also against him without assigning any reasons for the same and this amount to an abuse of the process of the court specially when there was no iota of evidence against the petitioner in the case diary. There appears sufficient force in the submissions advanced by the learned counsel for the petitioner. Admittedly, Clause 31(2) of the Unification Order has made it clear that the Unification Order does not apply to the employees of the State Food Corporation. Reference in this connection was made to the decision of Braj Kishore Prasad Versus State of Bihar, reported in 2004(2) PLJR 661. There is another aspect of the matter. There is no mention of the violation of any Order made under Section 3 of the E.C. Act and in absence thereof one cannot be punished under Section 7 of the E.C. Act. I have perused the complaint petition as also the reported judgment of Braj Kishore Prasad (Supra). From the facts stated in the F.I.R. and the submissions advanced by the learned counsel for the petitioner, no offence under Section 7 of the E.C. Act is made out against the petitioner. In that view of the matter, the prosecution of the petitioner - 4 - is an absolute abuse of the process of the court and is required to be quashed. Accordingly, this application is allowed and the impugned order so far as the petitioner is hereby quashed. P.S. (Abhijit Sinha,J)