IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.869 of 2009 AJAY SAH & BISHWANATH SAH Versus STATE OF BIHAR & ORS ----------- 6 15.9.2010 Heard counsel for the petitioners and the State. The petitioners pray for quashing the memo no.5457 dated 17.9.2009 issued by the Respondent no.5 by which he had directed the Station Head Officer, Dighwara P.S., respondent no.8, to arrest Bishwanath Sah, petitioner no.2, in connection with Dighwara P.S. Case No.89 of 2007 dated 6.6.2007 and to further direct to hold an enquiry about the complicity of the petitioner no.1, who is the son of petitioner no.2, in connection with the aforesaid case. The Sub-Divisional Officer, Sonepur in his order dated 06.06.2007 stated that an inspection was conducted in the premises/shop of Ram Ekbal Rai for alleged black marketing. However, Ram Ekbal Rai was not found around. The local Chaukidars were deputed to guard the premises. The Sub- Divisional Officer, Sonepur constituted a committee of Executive Magistrate, Sonepur, Block Supply Officer, Sonepure and Block Supply Officer, Dighwara to make verification of the premises. On query, the informant learnt from the local people that one Shashi Kumari and Rameshwar Rai have sold foodgrains in black market. The Incharge Block supply Officer, Dighwara made a raid of room no.2 of one Ram Pravesh Rai in presence of other 2 tenant. On query Ram Pravesh Rai informed that he has let out the premises to one Bishwanath Sah, petitioner no.-2, since last one year on rent. However, Bishwanath Sah was not present on the spot. In presence of Ram Ekbal Ram, formal Mukhiya Ram Pravesh Rai and other villagers, the Godown (room no.2) was unlocked and some food grains were seized. On the basis of the aforesaid seizure, the instant First Information Report namely Dighwara P.S. case no. 89 of 2007 dated 06.06.2007 was instituted under Section 7 of the Essential Commodities Act. It is further stated in the First Information Report that apart from Rameshwar Rai no other P.D.S. dealer of the block was found indulging in any irregularity. It is further stated in the report that Rameshwar Rai had sold food grains in question to Vishwanath Sah, petitioner no.2. Learned counsel for the petitioners submits that from perusal of various annexures it would be manifest that the prosecution case has been misdirected and various irregularities has been committed in course of investigation of the case. He submits that the direction of the Subdivisional Officer, Sonepur was to make an inspection of the premises of Ram Ekbal Rai where it has been alleged that the food grains for distribution to the beneficiaries to Antyoday Yojana has been stocked for the purposes of black marketing. However, instead of inspection of the premises of Rak Ekbal Rai, the inspection of the house of Ram Pravesh Rai was made. The Subdivisional Police Officer, Sonepur too has opined in his supervision that the inspection 3 was to be made of the shop of one Ram Ekbal Rai, but surprisingly the raid was conducted in shop which belonged to one Ram Pravesh Rai. It would appear from the F.I.R. that two persons namely Rameshwar Rai and Bishwanath Sah, petitioner no.2, was made an accused whereas from perusal of Final Form submitted under section 173 Cr.P.C., contained in Annexure-A to the counter affidavit, it would be manifest that only Bishwanath Sah was charge-sheeted and Rameshwar Rai, who was named accused in the F.I.R., was exonerated. On these counts, learned counsel submits that right from the investigation of the prosecution case up to the filing of the charge sheet, the prosecution has utterly mixed up the whole issue, both in respect of conducting raid in respect of PDS dealer or the persons selling the alleged government foodgrains to the petitioners. The investigation reflects non-application of mind. A counter affidavit has been filed on behalf of respondent no.5, wherein in paragraph 6 it has been stated that in course of investigation, the witnesses have supported the prosecution case that food grains were being black marketed by the accused P.D.S.dealer to the petitioner. A supplementary counter affidavit has been filed annexing copy of Final Form at Annexure-A. In paragraph 4 it has been stated that certain typographical mistake occurred in supervision III of the Superintendent of Police, Saran. In paragraph 5, it has been stated that the allegation has not been found true against accused Rameshwar Rai and Bindeshwar Rai 4 KHAN and the same has been found true against the petitioner Bishwanath Sah. There appears to be substance in the submission of learned counsel for the petitioners that certain contradictions appear in the case as well as in the investigation of the prosecution case. As final form has been submitted, this court is not inclined to go into the details of the merit of the case. The petitioners are granted liberty to raise all these points when the matter would be considered on the point of taking cognizance against them. Till the time cognizance is taken, no coercive steps would be taken against the petitioners Ajay Sah and Bishwanath Sah in connection with Dighwara P.S. Case No.89 of 2007. With the aforesaid liberty, this application stands disposed of. (S.P.Singh,J)