IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7870 of 2009 1. Prabhat Singh, son of Late Shyam Kishore Singh, 2. Pappu Singh, son of Late Brija Singh, 3. Mantun Singh, son of Sri Padarath Singh. All are resident of Village- Resident of Village- Darweshpura, P.S.- Katrisarai, District- Nalanda. ………Petitioners. Versus The State of Bihar ……………………….Opposite Party. For the petitioners :- Mr. Mukesh Kumar, Advocate. For the State :- Mr. Damodar Prasad Tiwary,A.P.P. ----------- 3. 23. 2. 2011. Heard. This is a petition for quashing the order dated 24.10.2008, passed by the Chief Judicial Magistrate, Nawada, in Warsaliganj P.S. Case No. 80 of 2006 by which cognizance has been taken against the petitioners for offence under Section 7 of the Essential Commodities Act. 2. The prosecution case as alleged in the written report of Block Supply Officer, Warsaliganj on the basis of seizure of 300 liters of blue kerosene oil from bullock cart and the statement of the two bullock cart men, Sudhir Singh and Karu Singh that the kerosene oil belong to Prabhat Singh, Mantun Singh and Pappu Singh, resident of Village- Darweshpura and said kerosene oil in six black jerkins of 50 liters each containing in all 240 liters of blue kerosene oil and 60 liters kerosene oil in two jerkins of 35 liters each were seized. 2 3. After lodging the case, the Police investigated and after investigation charge sheet has been submitted for offence under Section 7 of Essential Commodities Act. 4. Learned counsel for the petitioners submits that there is no mention of violation of any order that which order has been violated under Section of the 3 of the Essential Commodities Act. It is submitted that petitioners are not P.D.S. dealer. It has further been submitted that only P.D.S. dealer can be prescribed for violation in terms and conditions of the licence issued under unification order and has placed reliance upon decision reported in 2007 (2) PLJR page 289. 5. Learned counsel for the State however, opposed the submission and contended that offence is made out. 6. However, having regard to the submission, the fact that 300 liters of blue kerosene oil has been recovered from the bullock cart and it has come that the kerosene oil belong to the petitioners and being carried to the petitioners' village. However, decision reported in 2009 (3) PLJR276 similar question has been raised with regard to the seizure of the kerosene oil where it has been held that clause 2(t) 3 defined 'Trade Article' that the articles which are enlisted in Schedule-1, Part-E, Item No. 2 could indicate that kerosene oil comes within definition of the 'Trade Auricle' and 2(t) defines retail dealer and further observed ; " 9. The State Government is empowered by virtue of powers vested by the Unification Order in it by its Clause 18 to fix the storage limit by issuing a notification in official gazette in consultation with the Central Government. G.S.R. No. 47 dated 17th October, 1985 is the notification which was issued by the State Government in consultation with the Central Government fixing different stock limits for different dealers or persons or association of persons in respect of classified cities as indicated by that particular notification and if one comes to paragraph 11 of that notification, one could find that a domestic consumer of kerosene oil means a person who, at any time, holds stock of kerosene oil for domestic purpose not exceeding twenty liters. Sub paragraph (b) of that particular paragraph 11 speaks 4 about non-domestic consumer and that may indicate that anything up to 15 kilo liters, if stored by a person, could bring him into the purview of non- domestic consumer. 10. After considering all these provisions, what appears to me is that if a person is found in possession of kerosene oil in excess of twenty liters, then the statutory presumption could be raised against him that he had purchased it and that the purpose was to sell it. Thus, there could not be any doubt that the very possession by a person of any commodity in excess of the fixed storage limit could bring him into the purview of the term retail dealer and that by itself, could be treated as an act violating the provisions of Section 3 of the Essential Commodities Act which is made punishable under Section 7 of the Essential Commodities Act. So, the contention that the learned Judge was not pointing out as to what order was violated is not acceptable to this Court……." 7. Hence, taking into consideration the 5 fact and specific GSR No. 47 dated 17th October, that storage limit is only 20 liters for dealer and hence petitioners alleged to have been in possession of 300 liters of blue kerosene oil. It has further been mentioned blue kerosene oil are mainly a commodities for the distribution by Public Distribution System and is not available for general sale. Since 300 liters of blue kerosene oil alleged to have been in possession of the petitioners, then it can not be said that offence under Section 7 of the Essential Commodities Act is not made out. 8. However, view has also been substituted in AIR 1996 S.C. 2983, where it has been held that accused in possession of oil beyond storage limit without a licence is liable for violation of Section 3/7 of Essential Commodities Act 9. Hence having regard to the facts and circumstances that since the storage limit has been fixed by Notification as G.S.R. No.47, dated 17th October, 1985 as held in decision reported in 2009 (3) PLJR 276 and hence, apparently, there is violation and further if a person is not dealer or licensee even has kept article beyond permissible limit, then it can not be said that Section 7of Essential Commodities Act is not made out in view of decision reported in 6 AIR 1996 SC (2983). 10. Having regard to the facts and circumstances of the case, I do not find any merit in this petition, hence the petition is hereby dismissed. m.p. ( Gopal Prasad, J.)