CRIMINAL MISCELLANEOUS No.30691 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- JAWAHAR LAL, Son of Sri Motilal, resident of Village-Bhagan Bigha, P.S. Rahui, District-Nalanda ------------Petitioner Versus THE STATE OF BIHAR ---------------- For the petitioner: Sri B.K.Sinha, Advocate For the State : Sri Surendra Prasad Singh, A.P.P. ------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of entire criminal proceeding in Rajgir P.S. Case No.17 of 1999 and also for quashing of an order dated 29.9.1999 passed by the learned Special Judge, E.C.Act, Nalanda, whereby the learned Special Judge has rejected the petition for discharge filed on behalf of the petitioner. 2. Short fact of the case is that the Sub Divisional Officer, Rajgir vide Memo No.1014 dated 2.12.1998 directed the Block Development Officer, Circle Officer as well as the Supply Inspector , Rajgir , for conducting physical verification in the Godown of M/S Bharti Indane Gas Agency. Thereafter, on the same day i.e. in the evening of 2.12.1998 the raiding party with the police force went to the office of M/S Bharti Indane Gas Agency as well as its Godown and sealed both the premises. Again on the next date, after removing the seal put over the office and Godown , a search was conducted , in which 2 total three extra L.P.G. Cylinders were found and, as such, it was considered that it was violation of provision contained in Liquefied Petroleum Gas (Regulation and Supply and Distribution ) Order 1993 , which was punishable under Section 7 of the Essential Commodities Act. After noticing such irregularities, L.P.G. Cylinders, which were found in the premises, were also seized. On the basis of written report dated 5.1.1999 of one Sri Amrendra Kumar Dipak , Supply Inspector , Rajgir an F.I.R. vide Rajgir P.S. Case No.17 of 1999 was registered under Section 7 of the Essential Commodities Act on 6.1.1999 against M/S Bharti Indane Gas Agency through its Proprietor . After registering F.I.R. the police investigated the same and thereafter on 18.8.1999, chargesheet was submitted by the Police. On receipt of the chargesheet by order dated 1.9.1999, the learned Special Judge, Nalanda took cognizance of offence under Section 7 of the Essential Commodities Act. Subsequently, a petition for discharge was filed by the petitioner and finally by the impugned order dated 22.9.1999, learned Special Judge rejected the Petition for discharge. 3. Aggrieved with the order of rejection of discharge petition as well as aggrieved with the entire criminal proceeding in Rajgir P.S. case No.17 of 1999, the petitioner approached this Court by filing the present petition and on 25.2.2000, the case was admitted for hearing. While admitting , lower court records was called for and it was further directed that pending disposal of this application, further proceeding in Rajgir P.S. Case No.17 of 1999 pending in the court of Special Judge, E.C. Act, Nalanda at Biharsharif shall remain stayed. The order of stay is still continuing. 3 4. Sri B.K.Sinha, learned Counsel for the petitioner raised several grounds for assailing the entire criminal proceeding as well as the impugned order. It was argued that admittedly the physical verification was conducted in absence of the petitioner and three empty L.P.G. Cylinders, which were found in excess, were virtually of customers, which were brought by the customers for its exchange. The staff of the petitioner during inspection tried to explain regarding the three empty cylinders brought by the customers for exchange, but it was not accepted and only on the strength of those three extra empty L.P.G. cylinders the present prosecution was initiated, that too without any authority. The learned counsel for the petitioner has also questioned the search and seizure on other grounds. Besides this, it was argued by Sri Sinha, learned counsel for the petitioner that the entire criminal Proceeding arising out of Rajgir P.S. Case No.17 of 1999 is liable to be quashed solely on the ground that right from the date of receipt of the F.I.R. in the court of learned Special Judge, till the date of passing of the impugned order of rejection of discharge petition, the learned Special Judge had already ceased to function as Special Judge in view of expiry of provisions of Essential Commodities (Special Provisions) Act, 1981, which had come to an end on 24.10.1998. In support of this stand, reliance has been placed on a Single Banch Judgment of this Court, reported in 2002 (3) PLJR 547 ( Padma Prasad Vs.State of Bihar) . The said order was passed by this Court in view of Judgment of the Hon’ble Supreme Court in a case reported in AIR 2001(SC) 2972 (Tamil Nadu Vs. Paramasiva Pandian). On the strength of aforesaid reference, it was submitted that the Special Judge was neither having any power in the 4 present case to either take cognizance of the offence or pass the impugned order of rejection of discharge petition. On the aforesaid ground , it has been prayed to set aside the entire criminal proceeding in Rajgir P.S. Case No.17 of 1999 as well as the order dated 22.9.1999 passed by the learned Special Judge. 5. Sri Surendra Prasad Singh, learned Addl.Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioner. It was submitted that three extra empty L.P.G. cylinders found in the premises of the petitioner corroborates the allegation that the same was purposely kept for black-marketing and it was also violative of provisions of Liquified Petroleum Gas (Regulation and Supply and Distribution) Order 1993 and, as such, it was prayed to reject the present petition. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the lower court record, which was received earlier pursuant to the order of this Court and the same is kept along with record of the present case. After going through the record, it appears that immediately after the initiation of the proceeding and seizure of three excess L.P.G. empty cylinders , petitions were filed by the customers , namely, Santosh Kumar Gupta, Kamlesh Kumar and Awadhesh Kumar with a prayer to release L.P.G. cylinders ( empty) seized from the godown of the petitioner’s prmises. After filing of such petition, by order dated 31.3.1999, the learned Special Judge had called for a report on the point as to whether any confiscation proceeding was initiated or not. Subsequently, the Investigating Officer sent its report and did not raise any objection in the 5 case of release of three cylinders in favour of those applicants. After hearing the parties, by order dated 17.5.1999 learned Special Judge directed for release of the said three cylinders in favour of three applicants. The order dated 17.5.1999 corroborates the plea of the petitioner that three L.P.G. empty cylinders were of three customers. This fact creates doubt on the prosecution. Besides this, the main point, which is to be determined by this Court is as to whether the learned Special Judge was competent to proceed with the case in view of the law laid down by the Apex Court following which Judgment was passed in Padma Prasad’s case (supra). In view of the position cleared by aforesaid Judgments, there is no option before this Court but to set aside the entire criminal proceeding in Rajgir P.S. Case No.17 of 1999. In Padma Prasad’s case ( supra) this Court while quashing the impugned order had remitted back the matter to the learned Chief Judicial Magistrate to ensure that the case may be considered by appropriate Magistrate in accordance with law, but in this case in view of the fact that the prosecution itself appears to be doubtful as well as the fact that the matter remained pending before this Court for such a long time, it would not be appropriate to pass any order for revival of the proceeding and, as such, for the ends of justice, it is apt to quash the entire criminal proceeding in Rajgir P.S. Case No.17 of 1999 as well as the order dated 22.9.1999 passed by the learned Special Judge. Accordingly, the petition stands allowed. Patna High Court, Patna Dated : the 31st January,2011 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)