IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52997 of 2007 RANJEET PASWAN, S/o Ram Briksh Paswan, R/o village Darban Panchayat, P.S. Kawakole, District Nawada …… Petitioner Versus STATE OF BIHAR ----------- 2 10.2.2009 Heard Mr. Mrigank Mauli, the learned counsel for the petitioner and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Petitioner who is dealer under the Public Distribution System who faces prosecution in connection with Pakribarawan P.S. Case No. 10 of 2006 registered under section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”), and has prayed for the quashing of the order dated 28.11.2006 whereby the learned Sub Divisional Judicial Magistrate, Nawadah has taken cognizance therein against the petitioner. It appears that on secret information the informant along with police personnel of Pakribarawan came to bus stand of Kawakole where they found a black coloured plastic jerrycan lying in an abandoned state and on being opened it was found that it contained 20 liters of Blue Kerosene oil. It is said that the said kerosene oil was kept there for purpose of black marketing and the owners had abandoned the same on seeing the police party. It is further said that subsequently it came to the knowledge of the informant that the same belonged to Munna Sao and the petitioner who were taking the kerosene oil for black marketing. The learned counsel for the petitioner has submitted that - 2 - the petitioner had lifted 917 liters of kerosene oil on 21.1.2006 for distribution amongst the consumers and the stock was verified by Mukhiya and the same was found to be correct and a direction was given for distribution of the same and as per the direction of the Mukhiya the petitioner distributed 525 liters of kerosene oil on 23.1.2006 and 392 liters on 24.1.2006 and as such there was no stock of kerosene oil in the shop of the petitioner at the end of the day on 24.1.2006. It has been submitted that the allegations are wholly false and had been lodged without verification of facts and there is nothing in the F.I.R. that makes out a case against the petitioner. This application is fit to be allowed on the three grounds stated herein below. Firstly dealers under the Public Distribution System are exempted from prosecution by virtue of Clause 31(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984, as they happen to be the agents of the Government and their prosecution would amount to be an abuse of the process of the Court. Secondly as is well settled by a catena of decisions both of the Apex Court as also this court for inviting prosecution under section 7 of the E.C. Act, the F.I.R. must disclose as to which Order made under section 3 of the E.C. Act has been contravened or violated and in the absence of such statement or declaration in the fardbeyan or compliant no prosecution lies under section 7 of the E.C. Act. Thirdly mere allegation that the articles ceased was - 3 - purportedly for the purposes of black marketing is not complete in the prosecution. The element of sale being also absent the allegation of black marketing is not complete. Gainful reference in this connection may be made to the decision of Abimanyu Paul Vs. State of Bihar (1987 PLJR 570). Due regard being had to the facts and circumstances of the case and the discussion made above prosecution of the petitioners herein would amount to be an abuse of the process of the Court and the same cannot be sustained in the eye of law. Accordingly the application is allowed and the order taking cognizance against the petitioners herein is hereby quashed. Spd/- (Abhijit Sinha, J.)