IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13205 of 2004 BINOD KUMAR @ BINOD KUMAR SAH @ BINOD GUPTA & ORS Versus STATE OF BIHAR AND ANOTHER ----------- 7. 30.7.2008. Heard Sri N.K. Agrawal, Senior Advocate, the learned counsel for the petitioners and Sri Jharkhandi Upadhayay, the learned A.P.P. for the State. Although O.P. No.2, the complainant-cum- District Transport Officer, Begusarai, was duly served with notice, he has chosen not to appear and contest this application. The three petitioners have prayed for quashing of the order dated 17.10.2002 passed by the learned Sub Divisional Judicial Magistrate, Begusarai, in Mufassil P.S. Case No.101 of 2001 whereby he has taken cognizance of the offences under Section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”) and Section 3 of the Bihar Motor Spirit and High Speed Diesel Oil License Order, 1966(hereinafter referred to as “the Licensing Order”). It appears that on 23.4.2001 the District Transport Officer intercepted a tanker loaded with diesel while going from Begusarai towards Majhaul side but the driver of the vehicle on demand could not produce the relevant papers against which the driver produced three cash- memos which revealed that the three petitioners who are licensed dealers had purchased 6000, 3000 and 3000 liters respectively of diesel from M/s. Super Highway Services, Begusarai, and their respective license numbers were displayed on the cash- memos . It was presumed that the diesel had been purchased for the purpose of black marketing from that petrol pump rather than from - 2 - Bharat Trading Company, Khagaria wherefrom they were required to purchase the diesel under the license. It has been submitted on behalf of the petitioners that all the three petitioners are in possession of license in form IV wherein in Column No.3 the licensing authority had mentioned the name of M/s. Bharat Trading Company, Khagaria, which is not an Oil Company whereas under the law they were required to purchase the diesel from a recognized Oil Company. This purchase cannot be faulted with or the petitioners be made liable since there was no restrictions placed in the Licensing Order. It was also submitted that petitioners had filed C.W.J.C. No.6221 of 2001 before this Court and by order dated 14.5.2001 the seized articles was directed to be released in favour of the petitioners on furnishing proper security. It is also submitted that there is no allegation against the petitioners of selling the diesel at higher price than the price fixed by the Government or of supplying in less quantity. There is another aspect of the matter. Merely because some trade articles are being carried it cannot be inferred without there being something else that the same was being carried for sale in black market. Reference in this connection may be made to the case of Narayan Prasad Vs. State of Bihar, reported in 1998(2) PLJR 330. With there being no restriction placed on the movement or purchase of motor spirit and diesel and with the defective license which did not prescribe an Oil Company wherefrom the diesel was to be purchased by the petitioners, the prosecution of the petitioners - 3 - would amount to an abuse of the process of the court. Accordingly, the order taking cognizance is hereby quashed and the application, so far as these petitioners are concerned, is hereby allowed. P.S. (Abhijit Sinha,J)