CRIMINAL MISCELLANEOUS No.8151 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- SATRUGHAN SAHA, SON OF LATE JAGDISH PRASAD SAHA, RESIDENT OF VILLAGE T.P. BEHLA, P.S. TAKURPUR, DIST. 24 PARGANA, WEST BENGAL. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE BLOCK DEVELOPMENT OFFICER, AMARPUR, DISTRRICT BANKA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Mrigank Mauli, Adv. Vinay Mistry, Adv. For the State : Mrs.Indu Bala Pandey,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 15.2.1999 passed by Special Judge, Banka in Amarpur P.S. Case No.2 of 1998. By the said order, learned Special Judge has taken cognizance of offence under Section 7 of the Essential Commodities Act against accused persons including the petitioner. 2. Short fact of the case is that on 4.1.1998, the Block Development Officer, Amarpur jointly with Officer-in-Charge, Amarpur Police Station intercepted a truck loaded with 110 bags of Tisi (Edible Oil Seed). On weighment, it was found that the Tisi was 110.10 quintal. On demand, certain papers were produced by the driver and it transpired that papers were issued by one Abinash Bhandar in 2 favour of R.K. Industries, Calcutta. The Block Development Officer suspected the documents as forged and thereafter, came to the conclusion that owner of Abinash Bhandar in collusion with transport owner i.e. petitioner was indulged in black marketing of Tisi. On the basis of written report of the Block Development Officer, Amarpur, an F.I.F. vide Amarpur P.S. Case No.2 of 1998 for the offence under Section 7 of the Essential Commodities Act was registered and after investigation, charge sheet was submitted. On receipt of the charge sheet, the learned Special Judge, by its order dated 15.2.1999, took cognizance of offence under Section 7 of the Essential Commodities Act. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition, which was admitted on 2.9.1999. While admitting, notice was directed to be issued to opposite party no.2 i.e. Block Development Officer, Amarpur and it was further directed that further proceeding as regards the petitioner in Amarpur P.S. Case No.2 of 1998 in the court below shall remain stayed, during the pendency of this application. Despite service of notice, the opposite party no.2 did not file any reply and finally the petition was heard. 4. Shri Mrigank Mauli, learned counsel appearing on behalf of the petitioner, while 3 challenging the order of cognizance and entire proceeding in Amarpur P.S. Case No.2 of 1998, submits that from perusal of the F.I.R. itself, no offence is made out. It was submitted that only on suspicion, the present F.I.R. was lodged. It was further submitted that the petitioner was owner of the truck vide Registration No.WB 19-4194, which is a public career and the driver of the vehicle was carrying Tisi with valid papers. The Tisi was being carried from Amarpur to R.K. Industries, Calcutta by the Proprietor of Abinash Bhandar along with documents i.e. receipt issued in favour of R.K. Industries, Chalan, Market Committee Receipt, road permit etc., which were produced by the driver of the vehicle on demand by the informant. It was further submitted that Tisi was not a controlled item and as such it cannot be said that any of the order issued under Section 3 of the Essential Commodities Act was infringed. 5. Shri Mrigank Mauli, learned counsel for the petitioner, has heavily relied on an order passed by the District Magistrate, Banka in Confiscation Case No.60 of 1997-98 i.e. Annexure-5 to the petition. Learned counsel for the petitioner has submitted that even during the confiscation proceeding, it was found that there were no violation of any of the provision or any order framed under Section 3 of the Essential Commodities Act and as 4 such the learned District Magistrate had set aside the confiscation proceeding vide its order dated 6.11.1998 passed in Confiscation Case No.60 of 1997- 98. Shri Mrigank Mauli, learned counsel for the petitioner has further relied on a judgment of Hon’ble Supreme Court reported in 2007(5)SCC 769 (Kailash Prasad Yadav and another Vs. The State of Jharkhand and another), wherein it was held that “confiscation of an essential committee or a truck is permissible only if the provisions of any order made under Section 3 of the Essential Commodities Act are violated”. In some and substance, learned counsel for the petitioner has argued that neither the seized article was controlled item nor in the case there was any material to show that any of the provisions under Section 3 of the Essential Commodities Act was violated and in absence of such material, there is no question for attracting Section 7 of the Essential Commodities Act. Accordingly, it has been argued that neither the proceeding in Amarpur P.S. Case No.2 of 1998 nor the order of cognizance dated 15.2.1999 is sustainable in the eye of law and both are liable to be set aside. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has opposed the prayer of the petitioner and submitted that the petitioner has come against the order of cognizance. It was submitted that the 5 petitioner can raise all the grievances before the court below at appropriate stage. Accordingly, she has prayed to reject the present petition. 7. In the present case, the opposite party no.2 has preferred not to file any affidavit controverting the stand of the petitioner. Moreover, fact remains that in the present case, the said F.I.R. was lodged long back on 4.1.1998 and there was an order of stay passed by this Court whereby criminal proceeding in Amarpur P.S. Case No.2 of 1998 was directed to remain stayed and order of stay remained operative for a quite long time. 8. In view of the facts and circumstances, the court is of the opinion that order of cognizance as well as proceeding in Amarpur P.S. Case No.2 of 1998 are not sustainable and same are fit to be quashed. 9. Accordingly, order of cognizance dated 15.2.1999 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 13th January,2011 N.A.F.R./N.H.