Criminal Miscellaneous No.157 OF 1999 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------ BHUWANESHWAR SAH son of late Dhanuk Sah, Resident of Bihari Ganj. P.S.Bihari Ganj, Dist.-Madhepura ….. ……Petitioner Versus STATE OF BIHAR …… ….Opp.Party ------- For the petitioner: Mr. D.N.Tiwary and Mr. T. Sharma For the State: Mr.Sunill Kumar Pandey, APP ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. The petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 29.11.1997 passed by the Special Judge, Essential Commodities Act (hereinafter E.C.Act). By the said order the learned judge had taken cognizance of the offence under section 7 of the E.C. Act and section 144, 467, 468, 471 and 420 of the Indian Penal Code in Special Case No.6 of 1997. 2. In the first information report i.e Uda Kishunganj P.S. Case No.C118 of 1997 it was alleged that Supply Inspector had received information regarding illegal storage and black marketing by the local traders in respect of articles which are being used by the local people. The said rumour was got verified and the informer had given information on 29.7.1997 that huge quantity of mustard oil was being carried illegally in a jeep. Thereafter the vehicle in question was chased and the same was 2 intercepted near the shop of Raj Kumar Sah. On the said jeep huge quantity of sealed mustard oil was found. The driver of the vehicle disclosed that the jeep in question was of Bhuneshwar Sah general merchant and retail seller. He said that he brought 51 tin of mustard oil from there. He further stated that he was carrying the said mustard oil to the shop of Raj Kumar Sah. On being questioned, the driver produced a receipt in respect of his claim on the said mustard oil. However, on the said receipt number of vehicle was not mentioned and it was mentioned that this petitioner was sending the said mustard oil to Raj Kumar Sah. The said article along with the jeep was seized. After the seizure was done, a young boy of about 12 years handed over a yellow receipt to the driver of the said vehicle. On verification it was found that the said receipt was not even bearing the date of its issuance. On these materials the aforesaid first information for the offences under sections 414, 420, 467, 468, 471 and 120B of the Indian Penal Code and section 7 of the E.C. Act was registered. After registering the first information report the case was investigated and thereafter charge sheet was submitted against this petitioner and others. On perusal of the first information report it appears that only on suspicion of commission of offence, the jeep as well as mustard oil were seized. 3. Learned counsel for the petitioner submits that even after perusal of the entire first information report no case is made out. He further submits that in the first information report section 414 of the Indian Penal Code was mentioned but there is 3 no case relating to commission of theft. He further submits that merely on the ground of non-mentioning of the date in the receipt, it cannot be said that offence under the E.C. Act was committed by the petitioner. Learned counsel by way of referring supplementary affidavit and its enclosure submits that the guideline issued by the State government specifies that in course of normal transaction, if a licencee forgets to mention either the licence number or the date on the bill or memo, the same may not be considered as an offence. On these grounds he has prayed for quashing of the order of cognizance. 4. Mr. Sunil Kumar Pandey, learned counsel appearing on behalf of the State has opposed the prayer of the petitioner and by referring to the first information report he submits that the receipt in question was got prepared by the accused persons with a view to take a false defence. He further submits that after registering the first information report the case was thoroughly investigated and thereafter charge sheet was submitted. The learned Magistrate, after examining the charge sheet and materials available in the case diary, by its order dated 29.11.1997 has taken cognizance of the offences under sections 144.467, 468, 471 and 420 of the Indian Penal Code and section 7 of the E.C. Act. 5. I have also perused the first information report of the present case. On perusal of the first information report it appears that right from the very beginning the stand of the driver was that he was carrying the mustered oil from the petitioner’s 4 shop to one Raj Kishore Sah of Uda Kishunganj. The first information report also indicates that the petitioner had sold the seized mustered oil for an amount of Rs.23970/-. On perusal of the first information report I feel it difficult to gather as to which offence was committed by the petitioner. I am of the view that contents of the first information report does not make out a case against the petitioner. It also appears that the learned Magistrate in a mechanical manner has passed the order of cognizance dated 29.11.1997. Moreover, the offence as alleged, as per the first information report was committed in the month of July, 1997 and since 1999 the present petition is pending before this court. While admitting the case, this court had granted an order of stay in the criminal proceeding pursuant to the said first information report and, as such, in absence of any specific allegation in the first information report coupled with the pendency of the case for such a long time, it would not be appropriate to allow the proceeding to proceed further. I am of the view that on such an allegation allowing the prosecution of the petitioner will amount to an abuse of process of the court. 6. Accordingly, the order of cognizance as well as the criminal proceeding in Special Case No. 6 of 1997 is hereby set aside. The petition stands allowed. Patna High Court The 7th April, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)