CRIMINAL MISCELLANEOUS No.4776 OF 1998 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- 1. RAM CHANDRA SHARMA , Son of Ram Julam Sharma, resident of Village- Lataraha, Police Station -Jale, District-Darbhanga 2. Bishnu Raut @ Bishnu Kumar Raut 3. Baijnath Raut, Sons of Late Dhrub Narain Raut 4. Bidesh Choudhary, Son of Ishwar Choudhary All residents of Bar Bazar, Madhubani, Police Station- Madhubani Town, District-Madhubani --- Petitioners Versus THE STATE OF BIHAR ----------------------------- Opp.Party. ------------- For the petitioners: S/Sri Bidhanesh Misra, Advocate Jomya Misra, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 4.2.1998 passed by Sri A.K.Verma, Special Judge, Madhubani in Madhubani Town P.S. Case No.78 of 1991, G.R.No.398/91. By the said order, learned Special Judge has taken cognizance of offence under Section 7 of the Essential Commodities Act for violation of Bihar Motor Spirit and High Speed Diesel Oil Dealers’ Licensing Order, 1966 (herein after referred to as “the Licensing Order”) against petitioner no.1 Ram Chandra Sharma. Petitioners have also prayed for quashing of the 2 order issuing processes against all the petitioners. 2. Short fact of the case is that on an information, the Officer Incharge, i.e. Sub Inspector of Police conducted a raid in the motor garage of petitioner no.1 and seized three drums of diesel, total measuring 660 liters of diesel. After preparing seizure list, an F.I.R. vide Madhubani Town P.S. Case No. 78 of 1991 was registered for the offence under Section 7 of the Essential Commodities Act on an allegation that the said diesel was kept for the purposes of its black marketing. After registering the F.I.R. the case was thoroughly investigated and thereafter the Investigating Agency came to the conclusion that it was a case of mistake of fact and accordingly, final report was submitted. Final report was submitted in the year 1992. Thereafter by the impugned order, i.e. order dated 4.2.1998, learned Special Judge has taken cognizance of offence under Section 7 of the Licensing Order. The order of cognizance was passed against petitioner no.1 Ram Chandra Sharma. It has been submitted by learned counsel for the petitioners that summons have been issued against all the four petitioners. 3. Aggrieved with the order of cognizance dated 4.2.1998, four petitioners have approached this Court by filing the present petition. On 6.3.1998, the petition was admitted for hearing and it was directed that during the pendency of this application, further proceedings in the court below shall remain stayed. The order of stay is still continuing. 4. While challenging the order of cognizance dated 4.2.1998, Sri Bidhanesh Misra, learned counsel appearing on behalf 3 of the petitioners submits that as per the provision , contained in Section 12 of the Licensing Order in the present case even search conducted by the Sub Inspector of Police was violative. It has been submitted that as per the provision, an officer not below the rank of Dy. Superintendent of Police was authorized to conduct raid and seizure. It has further been submitted that petitioner nos.2,3 and 4 were authorized owner of commercial vehicles and as per prevailing provisions, the owners of the commercial vehicle were entitled to keep up to 200 liters diesel in a week. Learned counsel in support of his stand has referred to the facts enumerated in the copy of the chargesheet i.e. Annexure-5 to the petition. It has been submitted that even at the time of submission of the final report, the Investigating Officer had reported that in a week permissible limit for keeping diesel was 200 liters for commercial vehicle. It has further been submitted that for the purposes of using the diesel for their vehicles they had kept/stored diesel in the garage premises of petitioner no.1. It has further been submitted that during the investigation, the supervisory authority had also noticed that the Sub-Inspector of Police was not authorized to conduct search and seizure. It has further been submitted that in the case, F.I.R. was lodged on 26.2.1991 and after thorough investigation, the police submitted final report on 26.5.1992 and thereafter the matter was kept pending for a long time and after expiry of more than six years, the present order of cognizance was passed, which was contrary to the facts and materials collected during the investigation of the case. Accordingly, it has been prayed to set aside the order of cognizance. 4 5. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The Court is of the opinion that the learned Special Judge has incorrectly passed the impugned order of cognizance. The police after thorough investigation has submitted final report as mistake of fact in the year 1992 and after lapse of more then six years, learned Special Judge has passed the impugned order which, according to the facts and circumstances of the case, is not in accordance with law. 7. Accordingly, order of cognizance dated 4.2.1998 passed in Madhubani Town P.S. Case No.78 of 1991 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 26th October,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)