IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.496 of 2009 1. SURESH KUMAR 2. Shyam Narayan Prasad Versus STATE OF BIHAR ----------- 2. 19.3.2010 Heard Shri Satyabart Verma, learned counsel for the petitioner and Shri Dashrath Mehtal, learned A.P.P. for the State. As may appear from the very statement made in the F.I.R., the allegation is that several cylinders of different capacities of liquefied petroleum gas were found in possession of petitioner No. 1 Suresh Kumar for purposes of indulging in black-market of the commodity. There is no allegation in the F.I.R. itself nor there is any material till date placed on record that those cylinders could be properties of theft. The elementary element of constituting an offence under Section 414 of the Indian penal Code is that, firstly, it has to be shown that the property could be the subject matter of theft. That not being the material, the cognizance under Section 414 of the Penal Code is hereby struck down. It was contended by the learned counsel for the petitioners that as regards the offence under Section 7 of the Essential Commodities Act, there is n o material against him. The Court believes that the petitioners have an opportunity of being heard under section 251 of the Cr. P.C. and it may not be in so wide terms as I couched from the provisions of Sections 2 239 and 240 of the Cr. P.C.. Again, the fundamental law is that acquisition could be explained only when there could be substance from the material placed before the court below. I direct the court to hear the petitioners fully and completely and peruse the materials available to it that behalf and consider the prayer of the petitioners, if it is made, under Section 251 of the Cr. P.C. The petition is allowed partially in the terms as indicated and with the above direction. Kanth ( Dharnidhar Jha, J.)