IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12284 of 2008 MAHENDRA PRASAD GUPTA …PETITIONER Versus STATE OF BIHAR …OPPOSITE PARTY For the petitioner :Mr. M. Mauli & :Mr. Vinay Mistry For the State :Mr. Jharkhandi Upadhyay,APP ------ 09. 08.11.2010 Heard learned counsel for the petitioner and the State. Petitioner is a licensee under the Unification Order and during the relevant time was serving as a licensed hawker with respect to kerosene oil at subsidized rate/price under the scheme of the Government. Allegations were received by the authorities regarding illegality in the matter of such distribution of kerosene oil. The allegation further was that petitioner was vending kerosene oil at a higher price/rate. Allegation according to the FIR pertains to villages called Sinduari and Pathra. A perusal of FIR would indicate that lodging of the FIR is preceded by an on-the-spot enquiry made by the Block Supply Officer. Having been satisfied with the allegations and the statements of the consumers under the instruction of the higher authorities, the Block Supply Officer lodged the aforesaid case under section 7 of the Essential Commodities Act with an allegation that petitioner being the licensed vendor of kerosene oil, has violated the terms and conditions of the licence as also the instruction of the Government. It appears that the Investigating Officer, on conclusion of investigation, did not 2 send him up for trial. Learned Magistrate by order dated 18.05.2007, perused the materials on record including the case diary and took cognizance of the case differing with the opinion of the Investigating Officer. Aggrieved by the aforesaid order, petitioner preferred Cr. Revision 64/2007 in the court of Sessions Judge, Nawada. The said revision was heard and after hearing the parties, learned revisional court rejected the said application after having found that learned CJM, Nawada upon perusal of the materials/documents filed along with the police papers found and recorded his satisfaction regarding presence of a prima facie case against the petitioner. Learned counsel for the petitioner while assailing the order, submits that allegations pertain to the year 2004 when the alleged inspection was made by the Block Supply Officer. Referring to Annexure-6 (filed along with rejoinder to the counter affidavit), it is submitted that during relevant time petitioner was not assigned those two villages for distribution of kerosene oil. It is the contention of the petitioner that those two villages were subsequently added to his area of distribution sometime in the year 2005. It is further contended that prosecution has not been able to bring on record the documents indicating that during the relevant time (2004) the aforesaid two villages were assigned to the petitioner for vending kerosene oil allotted on subsidized rate/price by the Government. A counter affidavit has been filed on behalf of the State wherein it is stated that there is/are materials on record 3 indicating prima facie complicity of the petitioner in the alleged hawking. By way of illustration reliance has been placed on Annexure-A (attached to the counter affidavit) which is the reply submitted to the show cause issued to the petitioner for cancellation of the licence. It is next contended that the FIR was lodged some time in the year 2005 and anticipatory bail application of the petitioner was rejected in the same year, but the petitioner has not appeared in the proceeding and, as such, he may be treated in the eye of law as absconder. It is also contended that the licence of the petitioner has already been cancelled against which he preferred an appeal being Case No.45(M)/06(93(M)/2007) which has been rejected by learned District Magistrate, Nawada. Learned counsel for the petitioner, on the other hand, states that this Court has granted him certain protection by order dated 27.11.2009. I have considered the submissions advanced on behalf of the parties. There is concurrent finding with regard to presence of prima facie case against the petitioner leading to order taking cognizance. Relevant documents placed before this Court by way of affidavit/counter affidavit/rejoinder to the counter affidavit may possibly be the defence of the petitioner which shall be considered at the relevant stage of the proceeding. Considering the confines of the jurisdiction exercised by learned court below, this Court is not inclined to interfere therewith. The application is accordingly dismissed. 4 The petitioner may raise/agitate those grievances with reference to the documents at the relevant stage of the proceeding which shall be considered and disposed of in accordance with law. hr ( Kishore K. Mandal )