IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7632 of 2009 ASHWANI KUMAR SINHA, SON OF LATE BADRI NARAIN VERMA, RESIDENT OF VILLAGE LOHANDA, P.S. SIKANDARA, DISTRICT JAMUI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 3 13.1.2010 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. This application has been filed for quashing the order dated 30.7.2008 passed in G.R. No. 10/2006, T.R. No. 2588/2008 (arising out of Dawath P.S. Case No. 2/2006) by Sub-divisional Judicial Magistrate, Bikramganj, Rohtas by which cognizance has been taken under Sections 420, 120(B) of the Indian Penal Code and 7 of the Essential Commodities Act. In short the prosecution case is that the informant raided the shop situated at Brindawan Market allegedly belonging to Ramchandra Sah. The informant found total 138 bags of fertilizers, paddy and wheat in the shop. As it was late in the night, the informant could not make seizure of the said articles. The articles were seized on the next day. It is mentioned in the First Information Report that the informant had asked the petitioner to make an enquiry with respect to the illegal black marketing of fertilizers, paddy and wheat in the said market. It is alleged that as the petitioner did not take steps for making the said enquiry, he too is responsible under Section 7 of the Essential Commodities Act. A departmental proceeding was initiated against the petitioner in which the allegation is that (a) the petitioner did not make an enquiry as ordered by the superior authority (b) that it was his duty to do so and by not making the enquiry immediately, he too was said to be in connivance with the black marketers. 2 In the departmental proceeding, the petitioner filed his show cause and has stated that in fact there was no written order by any superior authority and he was verbally ordered to inspect the market and the area. It was submitted on behalf of the petitioner that he did not have any means of transport and actually he had walked to the village, made search and had found that the market was closed and as such he could not make any report regarding the presence of fertilizers, paddy and wheat in the market for the purposes of black marketing. In the departmental proceeding the petitioner has been given the benefit of doubt. Learned counsel for the State refers to Section 4 and Section 7(2) of the Essential Commodities Act and submits that it was the duty of the petitioner to follow the directions given under Section 4 of the Act and the failure to comply with the directions would make him liable to be convicted under Section 7(2) of the Essential Commodities Act. The facts disclose that the seizure was made by the informant and the informant found that 138 bags of unexplained fertilizers, paddy and wheat were lying in the Brindawan Market and it is presumed that the fertilizers, paddy and wheat belong to the P.D.S. dealer, which had been purchased for sale in black market by the owner of the shop in question. This is not a case where it can be said that in fact any prejudice was caused, by the prosecution by not making the search within time. It is also accepted that in fact the petitioner had gone for the purposes of making a search but could not do so because the shops were closed and he could not repeat his search for the reason that there was no means of transport available to him. The fact that transport was not 3 available is also apparent from the First Information Report because the informant on the date on which he made the search could not seize the articles as he did not have the man power and the vehicle to seize 138 bags of fertilizers, paddy and wheat and deposit them in the police station. To constitute an offence under Section 420, there must be an element of deception and an intention to commit an offence under of cheating someone. There is no material on record to show that the petitioner was involved in the black marketing and was assisting the dealers who were responsible for the said black marketing. There is also no evidence in the First Information Report to suggest that the petitioner did not perform his duty, inasmuch that it has been accepted that he did go for the purpose of making search but it was after a delay. The only allegation is that he was responsible for delay in the search and seizure is not substantiated by material on record. In these circumstances and in the facts of this case, I am of the opinion that no offence is made out under Section 420, 120(B) of the Indian Penal Code and Section 7 of the Essential Commodities Act. In the result, the order dated 30.7.2008 passed in G.R. No. 10/2006, T.R. No. 2588/2008 (arising out of Dawath P.S. Case No. 2/2006) by Sub- divisional Judicial Magistrate, Bikramganj, Rohtas is quashed. This application is allowed. Sanjay (Sheema Ali Khan, J.)