IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34043 of 2008 SHAILENDRA KUMAR, SON OF SRI SAHDEO RAWAT, RESIDENT OF KHAIRA, P.S. KHAIRA, DISTRICT JAMUI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 3 23.11.2009 The petitioner has challenged the order taking cognizance dated 29th of January, 2008 passed by the Sub- divisional Judicial Magistrate, Jamui under Section 7 of the Essential Commodities Act. The facts are that a First Information Report was instituted alleging therein that the petitioner who is a P.D.S. dealer had not distributed the K. Oil to the consumers. The First Information Report was instituted on an application filed on behalf of 18 persons. The application of the 18 persons forms part of the First Information Report which has been supplied to this Court. Learned counsel for the State was asked to produce the original copy of the Unit Register which indicates the names of the consumers who are attached with this particular P.D.S. dealer. On perusal of the Unit Register it appears that the 18 persons mentioned in the First Information Report are not attached to the petitioner rather they are attached to one Birju Rawat. It is, therefore, submitted that prima facie the case instituted is without verifying the facts and on the basis of false reports which were allegedly filed on the instigation of another P.D.S. dealer of the area. Apart from the aforesaid facts, it is also clear that 2 the shop of the petitioner was raided on 10.9.2007. Learned counsel for the petitioner refers to Clause 6 of the Bihar Control Order which reads as follows: 6. Working period and holiday:- No other holiday shall be admissible to FPS dealer except Gazetted holiday and weekly closing i.e. Monday. The FPS shops shall open between 7 A.M. to 1 P.M. during the month March to August and from 8:00 A.M. to 2 P.M. during September to February. Due to unavoidable reason if the FPS Dealer is unable to conduct the working of shops for limited period then he shall submit an application before the Licensing Authority. The Licensing Authority may allow the said period just after making an alternative arrangement for availability of Essential Commodity to the Consumers. The rule indicates that the shops of P.D.S. dealers would be closed on Monday and other national holidays. 10.9.2007 is a Monday and therefore, it is submitted that the very raid, made on a day, on which the shop was closed appears to be malafide and unjustified. To constitute an offence under Section 7 of the Essential Commodities Act, it should either be shown by the prosecution that the persons accused of the offence were involved in selling the essential commodities or specified commodities in black market or was contravening the terms of licence/agreement. The contents of the First Information Report in the facts stated aforesaid, do not make out a case of black marketing or contravention of the terms of grant of licence viz a viz the petitioner. Counsel for the State points out that the petitioner had lifted K. Oil in the month of July and August however the 3 informant did not find any K. Oil in the stock at the time of inspection. To come to a finding that the petitioner had not distributed the K. Oil in July and August, the authorities concerned ought to have examined the consumers who were allocated to the petitioner. The prosecution has failed to take any steps in that direction and as such the allegations are not lead the Court to hold the petitioner prima facie guilty of offence under Section 7 of the Essential Commodities Act. On perusal of the First Information Report and the material that has come before this Court and the provisions of law, I find that no offence is made out under Section 7 of the Essential Commodities Act and as such I quash the order of cognizance dated 29th of January, 2008 passed in Khaira P.S. Case No. 131 of 2007, G.R. Case No. 1289/2007. This application is thus allowed. Sanjay (Sheema Ali Khan, J.)