IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37141 of 2007 JARMAN PRASAD, SON OF SRI CHHOTU PRASAD, RESIDENT OF VILLAGE SARVODAYA NAGAR, SATHOPUR, P.S. DEEPNAGAR, DISTRICT-NALANDA……………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. KAMAL NARAYAN CHAUDHARY, BLOCK SUPPLY OFFICER, BLOCK SUPPLY OFFICE, NOORSARAI, NALANDA. …………………………………………………OPPOSITE PARTIES. ----------- 3. 28.11.2008. Heard Sri N.K. Agrawal, Senior Advocate, the learned counsel for the petitioner and Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. The petitioner who is a Divisional Manager, Bihar State Warehousing Corporation, Biharsharif (hereinafter referred to as “the B.S.W.H.C.) and has been made to figure as an accused in Laheri P.S. Case No.37 of 2007, has prayed for the quashing of the order dated 2.7.2007 passed by Sri A.N. Upadhyay, the learned Sub Divisional Judicial Magistrate, Nalanda at Biharsharif in connection with the aforesaid case, whereby he has taken cognizance of offences under Sections 409, 420, 467, 468, 471, 477, 120-B I.P.C. and Section 7 of the Essential Commodities Act(hereinafter referred to as “the E.C. Act”). According to the prosecution case, an inspection of B.S.W.H.C. was made on 2.3.2007 by the Block Supply Officer, Noorsarai and others and in course thereof it was detected that 250.84 quintals wheat had been received in the godown on 27.2.2007 and it - 2 - was lifted on 28.2.2007 by one Mahesh Prasad, the Lifting Incharge of State Food Corporation (hereinafter referred to as “the S.F.C.”) and as such the closing balance on 28.2.2007 was nil. It was alleged that on inspection of godown no.3 of B.S.W.H.C. and on physical verification of the godown 702 quintals of wheat in 1404 bags were found in the stock which goes to show that maintenance of stock register was not being maintained properly and on 28.2.2007 Truck No.BR-21A-6945 laden with wheat was seized by the raiding team and First Information Report bearing Sohsarai P.S. Case No.70 of 2007 was lodged on 1.3.2007 and thus it has been found/inferred that the petitioner being the Divisional Manager was engaged in black marketing of wheat meant for distribution on subsidies price. It has been submitted on behalf of the petitioner that the First Information Report did not make out any offence against he petitioner and in view of the fact that the wheat as shown in the stock belongs the farmers and there is nothing to show criminal breach of trust on the part of the petitioner who had neither cheated nor induced any one to deliver any property causing wrongful gain to himself and wrongful loss to the others. The allegation of forgery or fabrication of any document has no legs to stand. Hence, none of the sections of the Penal Code have any application in the present case. It was next submitted that Section 7 of the E.C. Act also does not have any application in the facts of this case and the First Information Report also does not disclose as to which provision of any Licensing Order has been contravened by the petitioner and the same - 3 - is based on vague facts. The learned counsel also sought to submit that the seized 200 bags of wheat have already been claimed by three persons, namely, Vivekanand Prasad, Sanjay Kumar and Kundan Kumar vide their petition dated 12.3.2007 filed before the learned Chief Judicial Magistrate, Nalanda, praying for the release of the seized 200 bags of wheat in their favour and that the said bags of wheat had no nexus with the godown of B.S.W.H.C. and as a matter of fact they were released in their favour. Finally, it was submitted that the petitioner was protected from prosecution in view of clause 31(2) of Bihar Trade Articles (Licenses Unification) Order which exempted from prosecution the officials of the B.S.W.H.C. and the Bihar State Food and Civil Supply Corporation etc., they being the Organizations of the State Government. There appears sufficient force in the submissions of the learned counsel for the petitioner and the learned A.P.P. is not in a position to controvert the same. In Dinesh Prasad Singh alias Dinesh Singh Vs. State of Bihar (Criminal Misc. No.43729 of 2006 disposed of on 10.9.2008) a Bench of this Court placing reliance on he case of Braj Kishore Prasad Versus State of Bihar, reported in (2004) 2 PLJR 661 has held that the Unification Order does not apply to the employees of the State Food Corporation. In that decision it has also been observed that where there is no mention of violation of any Order made under Section 3 of the E.C. Act, in absence thereof action under Section 7 of the E.C. Act - 4 - is not called for. In view of what has been discussed above and the non contentious stand taken by the learned A.P.P. the application has to be allowed. Accordingly, the criminal prosecution of the petitioner and the impugned order taking cognizance is hereby quashed and the application is allowed. P.S. (Abhijit Sinha,J)