IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39995 of 2008 RAVIKANT JHA @ PINTU JHA Versus STATE OF BIHAR ----------- 2 22-09-2008 Heard Sri Manoj Kumar Jha , the learned counsel for the petitioner and Sri Jharkhandi Upadhaya, the learned A.P.P. for the State. Through this application, the petitioner prays for the quashing of the order dated 30.6.2008 passed by the learned Chief Judicial Magistrate, Bhagalpur in Kotwali ( Tatarpur ) P.S.Case No.528 of 2007, G.R.No.2356 of 2007, whereby he has taken cognizance against the petitioner under Section 7 of the Essential Commodities Act ( hereinafter referred to as the „E.C.Act‟). It appears that the shop-cum- residence-cum- lodge of the petitioner was raided by the Marketing Officer along with the Executive Magistrate, Supply Inspector and A.S.I. of Tatarpur Police Station, in course whereof four big gas cylinders were seized , of which two were half-empty gas cylinders of Hindustan Petroleum Company and two were empty gas cylinders of Bharat Petroleum Company . That apart one 4 Kgs small empty gas cylinder and three brass keys used for refilling small gas cylinder from big gas cylinder were also recovered and seized from the lodge of the petitioner. On this premise, it was alleged that the petitioner was illegally indulging in filling small gas cylinders from big gas cylinder on a large scale and was also doing black-marketing of Liquid Petroleum Gas( L.P.G). - 2 - It has been submitted on behalf of the petitioner that two gas cylinders of Hindustan Petroleum Company belonged to one Sarita Devi who was his sister and also a bona fide consumer of gas cylinder of Hindustan Petroleum, bearing Consumer No.616451 and two gas cylinders belonging to Bharat Petroleum were those of the petitioners who is also a bona fide consumer, bearing Consumer No.353206 and 2314 respectively. The four gas cylinders recovered from the lodge is said to be those of the four students residing there and were bona fide consumers of the seized cylinders being in possession of the relevant documents. It has further been submitted that all the gas cylinders seized , big or small, were subsequently released by the order of the learned Chief Judicial Magistrate, Bhagalpur on different dates in favour of the respective consumers, namely, the four residents of the lodge , the petitioner and his sister ,namely, Sarita Devi. From the submissions advanced by the learned counsel for the petitioner, it would appear that since the learned Chief Judicial Magistrate had released the seized gas cylinders in favour of the respective owners thereof, there obviously could be no case against the petitioner as one made out by the F.I.R. of his indulging in black- marketing of L.P.G. cylinders or small gas cylinders. There is another aspect of the matter. It is by now well settled that to make out an offence under Section 7 of the E.C. Act, it is required that there should be some violation of any of the Orders made under Section 3 of the E.C. Act and unless it was shown that some Orders made under Section 3 of the E.C. Act had been - 3 - contravened, no prosecution under Section 7 of the E.C. Act lay against the petitioner. In that view of the matter, too, the prosecution of the petitioner would be an abuse of the process of the Court. Before I part I would like to dispel a wrong submission based on a wrong judgment of mine in case of Ajay Choudhary-Vrs. The State of Bihar, reported in 2008 (1) PCCR 322 wherein it was held that the Chief Judicial Magistrate is not competent or legally authorized to take cognizance of an offence under Section 7 of the E.C. Act. Notification no.227A dated 7th May,2001 issued by the Patna High Court reads as follows: “No.227A: All the Sub divisional Judicial Magistrates of the district headquarters as well as of the Subdivisions are hereby vested with the powers under Section 260(i) (c ) of the Code of Criminal Procedure, 1973 ( Act 2 of 1974) for the summary trial of offences arising generally within their respective Subdivisions relating to the contravention of any order made under Section 3 of the Essential Commodities Act, as amended by the Essential Commodities ( Amendment) Act, 1964 ( No.47 of 1964 ) and duly notified in the Official Gazette as laid down in Section 12A of the Essential Commodities Act,1955. By Order of the High Court, B.N.P.Singh Registrar General” From this, it would follow that the Sub Divisional Judicial Magistrate at the district headquarters as also the Subdivisions were - 4 - vested with powers for the summary trial of offences arising generally within their respective Subdivisions relating to the contravention of any order made under Section 3 of the E.C. Act. It would, thus, mean that the learned Chief Judicial Magistrate had not been denuded of the power of taking cognizance. In view of the Notification of the Patna High Court aforesaid, the observation in Ajay Choudhary‟s case ( Supra ) of the Chief Judicial Magistrate having no power to take cognizance in matters of E.C. Act is not a good law and held to be in per curium . In view of the discussions made above, it is hereby held that the prosecution of the petitioner is an abuse of the process of the court and is, accordingly, quashed. It is also held that the Chief Judicial Magistrate is not denuded of the power of taking cognizance in cases relating to the Essential Commodities Act and the Sub Divisional Judicial Magistrate whether at the headquarters or the Subdivisions was duly authorized to hold summary trial only and not to take cognizance. ( Abhijit Sinha, J) NKS/-