IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44469 of 2008 Chhotu Chaudhary, Son of Late Pitambar Chaudhary, Resident of Village Chaklukman, Ward No. 11, PS Dalsinghsarai, District Samastipur ---- Petitioner Versus State Of Bihar ----- Opposite Party ----------- 2 1.8.2011 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner has moved this Court against the order refusing to discharge the petitioner. The petitioner also filed a revision application which was dismissed on 9.8.2008 against the order refusing to discharge him i.e. 10.11.2006. Learned counsel for the petitioner submits that the petitioner was caught with 80 litres of K.Oil by the villagers and was produced before the police. It has been said that the K.Oil was purchased from the P.D.S. Dealer namely Kameshwar Narayan Pandey. It is also submitted that Kameshwar Narayan Pandey who was made accused has not been sent up for trial. This Court has no way of knowing whether Kameshwar Narayan Pandey had actually sold the said K.Oil to the petitioner or not, therefore, this fact would be relevant as if, Kameshwar Narayan Pandey denies that he has sold the said K.Oil to the petitioner then it would become incumbent on the petitioner to explain how he came to possession of K.Oil in question. Learned counsel fort the petitioner submits that there is a decision of this Court passed in the case of Kailash Chandra Maheshwari & Anr. Vs. The State of Bihar & Ors. (1981 B.L.J. 440) 2 which envisages that if the person who is caught with K.Oil is not a P.D.S. Dealer, he cannot be charged under the Essential Commodities Act. I may point out here that this aspect of the matter can only be considered, if, the petitioner shows that he is an agriculturist or runs an industry and that he had purchased K.Oil from a proper source. It is only under these circumstances, this Court can hold that the petitioner is not guilty of any offence either under the Essential Commodities Act or any other provision of law. I accordingly, quash the order dated 10.11.2006 and the order dated 9.8.2008, passed in Trial No. 777 of 2008 pending before the Sub-divisional Judicial Magistrate, Dalsinghsarai, subject to the fact that the trial has not commenced in this case. The Sub-divisional Judicial Magistrate, Dalsinghsarai is directed to pass a fresh order taking into consideration the observations made by this Court after going through the case diary or any other material, within a period of two months on receipt of a copy of this order. Counsel for the petitioner is directed to produce a copy of this order within a period of one month from the date of receipt of a copy of this order before the Court concerned, failing which this application shall stand dismissed. This application is allowed to the extent mentioned aforesaid. Sanjay (Sheema Ali Khan, J.)