IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8211 of 2008 DILIP KUMAR JAISWAL, son of Late Ram Krishna Prasad Jaiswal, resident of Jainagar, p.s. Jainagar, Madhubani …Petitioner Versus STATE OF BIHAR …Opposite party For the petitioner : Mr. N.K. Agrawal,Sr.Advcoate & :Mr.D.N.Tiwary For the State : Dr.Mayanand Jha,APP ----------- 6. 12.07.2010 Heard both sides. An application being I.A.No.1335 of 2010 has been filed which is taken on record. The petitioner seeks to challenge the order taking cognizance dated 8.02.2008 which has been passed by the learned Chief Judicial Magistrate, Madhubani on the strength of the police report submitted in terms of 173(8) Cr. P.C. Prayer is allowed. I. A. No.1335 of 2010 stands allowed. The petitioner by filing the present application under section 482 of the Code of Criminal Procedure initially challenged lodging of the FIR being Jainagar P.S.Case No.198/2007 lodged under section 7 of the E.C.Act. It appears that the police upon conclusion of investigation, submitted final report leading to the order taking cognizance dated 8.02.2008 which has now been permitted to be challenged in the present case. The impugned order in the present case is, therefore, the order taking cognizance. The Inspector of the S.S.B. lodged an FIR on 8.10.2007 alleging therein that a truck bearing no. BIA 6421 coming out from the godown of M/s Jaiswal Fertilizers was intercepted and checked. On query, it - 2 - was disclosed that the fertilizers laden thereon was/were being sent to M/s Kishan Ghar, Bhelwatol, a dealer of fertilizers. It is alleged that the shop of the petitioner was located within a distance of 500 yards from Indo-Nepal Border. It is thus alleged that in view of the order/notification issued under the signature of the Principal Secretary, Department of Agriculture, Govt. of Bihar dated 01.06.2007, any kind of business dealing in fertilizers within the radius of six kms. from Indo-Nepal Border has been banned and the dealers were given time till 16th of August for shifting the shop to another place but the firm M/s Jaiswal Fertilizers continues to run his shop within one km. from the border. On the strength of these allegations, it was alleged that the petitioner being the owner of the firm called M/s Jaiswal Fertilizers, has violated the order of the State Government which is punishable under section 7 of the E.C. Act. While assailing the sustainability of the order taking cognizance and the entire criminal proceeding arising therefrom, it is submitted that the said order cannot be said to be the order issued in terms of section 3 of the E.C. Act. Referring to the order/notification in question dated 01.06.2007, learned counsel for the petitioner contended that the said notification has already been held to be void ab inito by this Court. Learned APP, on the other hand, supported the impugned order it is contended that on the date of occurrence the said order was very much in effect. I have heard both sides and perused the materials on record. From the prosecution case as narrated hereinabove, it would appear that the case of the informant is structured solely on the notification/communication - 3 - dated 01.06.2007 issued by the functionary of the State Government. It appears from the judgment rendered by a Bench of this Court in CWJC No. 8173 of 2007(New Balaji Fertilizer & Ors. Vs. The State of Bihar & Anr.) that the challenge to the said notification made in the aforesaid case has been upheld by this Court. This Court finds from the aforesaid unreported judgment (copy whereof has been handed in and placed on record marked as ‘Y’) that the contention of the State Government that the same was issued in public interest was also taken into consideration and rejected. This Court finds from the materials on record that allegations precisely pertain to non-observation of the aforesaid circular dated 01.06.2007 issued by the State Government which has been held to be void ab initio by this Court in the case of New Balaji Fertilizer (Supra). If the said notification is declared void ab initio, then how the present proceeding survives. I am therefore, of the view that allowing the present proceeding to continue by upholding the order impugned shall be sheer abuse of process of the court. They thus required to be interfered with and quashed. Consequently, the application is allowed and the order dated 8.02.2008 passed by learned C.J.M. Madhubani is hereby quashed and set aside. hr ( Kishore K. Mandal )