IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49583 of 2007 SIYA RAM PRASAD CHAURASIYA . Versus STATE OF BIHAR . ----------- For the Petitioner :- Mr. Nawal Kishore Agrawal, Sr. Adv. Mr. K.C.K. Singh, Adv. Mr. D.N. Tiwari, Adv. For the State:- Mr. Parmeshwar Mehta, A.P.P. ------------- 5. 10.11.2010 Heard learned counsel for the petitioner and the State. This application was originally filed for quashing the order of cognizance dated 1.10.2007 and the entire proceedings against the petitioner in Warisaliganj P.S. Case No. 22 of 2007, under Section 7 of the Essential commodities Act pending before the S.D.J.M., Nawadah. The F.I.R. lodged by the Block Supply Officer on 8.30 P.M. states he received information from the Mukhiya and other beneficiary of the Antyodya scheme that food grains meant for distribution to the deprived sections of the society under the scheme were being transported by the petitioner, who is a P.D.S. dealer, for illegal gain by sale in the open market. When the Mukhiya and other villagers reached Warisaliganj, they saw the tractor loaded with rice being unloaded at the shop of Ram Swaroop Prasad. This was verbally informed to the 2 officer incharge Warisaliganj who also reached the place of occurrence. Upon seeing the Police, the persons involved tried to flee. On examination of the rice, it appeared to be of a quality which is sold only through the Government controlled scheme. The Shopkeeper Ram Swaroop Prasad disclosed that the rice belonged to the petitioner. No one claimed the ownership of the rice and neither was any paper produced with regard to the ownership of the rice which weighed 18.71 quintals. It therefore, appears that the petitioner as a P.D.S. dealer along with Ram Swaroop Prasad was engaged in the illegal trade of controlled rice contrary to the provisions of the Essential Commodities Act. A confiscation proceeding with regard to the seized rice was started before the District Magistrate. One Upendra Prasad Chaurasia filed an application before the Chief Judicial Magistrate for release of the seized rice claiming himself as the owner and for having kept it with Ram Swaroop Prasad. The Court of C.J.M. called for a report from the Executive Magistrate and in light of his report dated 18.5.2007, ordered release of the rice in favour of Upendra Prasad Chaurasia. In consequence thereof, the confiscation proceedings were dropped. The petitioner relied upon 3 two earlier orders of this Court that once the confiscation proceeding had been dropped, to permit the criminal prosecution to continue was an abuse of the process of the Court. The Criminal prosecution was quashed and the application was allowed on 28.2.2009. It is submitted that one Bachi Prasad Chaurasia questioned the order dropping the confiscation proceeding in Cr. W.J.C. No. 749 of 2007. The writ petition was permitted to be withdrawn on 12.2.2008 with an observation that the release of the seized articles in favour of Upendra Prasad Chaurasia shall not be a ground to defeat the prosecution in Warisaliganj P.S. Case No. 22 of 2007 and which has to be decided on its own merits. Since the order dated 28.2.2009 passed earlier quashing the proceedings was based on dropping of the confiscation proceedings and the order dated 12.2.2008 in Cr. W.J.C. No. 749 of 2007 was not brought to notice or placed before the Court in proceedings under Section 482 Cr.P.C. the Supreme Court on appeal by Bachi Prasad Chaurasia set aside the order dated 28.2.2009 and remanded the matter for fresh consideration in accordance with law. Learned counsel for the petitioner submits that rice is a free sale commodity. The First 4 Information Report is based on suspicion that the rice belonged to a Government scheme. He submits that if the rice seized was of a quality available only in a Government scheme, surely, the prosecution must continue. But if the rice was not of a quality sold through a Public scheme, it being otherwise a free sale commodity, the petitioner cannot be subjected to the rigours of a prosecution merely on assumptions and presumptions. If the identity and quality of the seized rice is in controversy and it remains a matter to be deciphered during trial by leading evidence whether it was a rice of a quantity available only under a Government scheme or not, matters shall be entirely different and the trial must proceed to arrive at that determination. But, if the identity and quality of the rice has been determined by Government functionaries arriving at a positive finding during trial that it was rice not of quality available through a Government scheme, rice otherwise being a free sale commodity, there is no justification for the prosecution. Counsel for the State submitted that the petitioner can raise all these objections before the Court below at an appropriate stage. It is seen that the First Information Report is based on suspicion. It refers to the rice suspected to 5 belong to the Antyodya scheme. The F.I.R. does not mention the quality of the rice seized but only states that appears to be belonging to the Antyodya scheme. One Upendra Prasad Chaurasia filed an application for its release before the Chief Judicial Magistrate. The Court called for a report. A report was submitted by the Executive Magistrate on 18.5.2007 to the Sub Divisional Officer. It states in no uncertain terms that the shop and records of the petitioner was inspected and all was found in order. Crucially, it states that the quality of the rice seized was not of a nature available through Government schemes. Under the Government scheme, quality of rice “Arwa” was supplied, while the rice seized was of the quality “Ushna”. Based on this identification of the quality of rice, it is stated to have been released in favour of Upendra Prasad. Nothing has been brought on record by the prosecution that any sample of the seized 18.71 quintals was ever segregated and sealed. Considering all of this, the confiscation proceeding was dropped by the District Magistrate which was questioned by one Bharat Prasad Chaurasia in a criminal writ petition bearing Cr. W.J.C. No. 749 of 2007. The writ petition was dismissed as withdrawn on 12.2.2008. Once the writ 6 petition was dismissed as withdrawn, the finding with regard to the quality and identity of the rice as not belonging to the Antyodya/Government scheme as reported by the Executive Magistrate attained finality. The prosecution never questioned the report dated 18.5.2007. Bharat Prasad Chaurasia, a private individual was a complete stranger to the criminal prosecution and neither was he a party to the present proceedings under Section 482 Cr.P.C. Considering the matter in its entirety, the quality and quantity having been confirmed as not belonging to a Government scheme, the F.I.R being based on suspicion only which is now unfounded, rice being a free sale commodity, this Court is satisfied to allow the present prosecution shall clearly be an abuse of process of law. The entire substratum of the case of the prosecution having vanished no offence on the face of the allegations is made out. Bharat Prasad Chaurasia, despite the order by the Supreme Court has chosen not to enter appearance given the diligence exercised by him in moving the Supreme Court against the earlier order of quashing dated 28.2.2009, his absence also raises questions of his bona fides, rightly urged by the petitioner to be based on business rivalry. 7 The entire prosecution of the petitioner in Warisaliganj P.S. Case No. 22 of 2007, including the order of cognizance dated 1.10.2007 is quashed. The application stands allowed. P. Kumar ( Navin Sinha, J.)