IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52521 of 2007 NATHUN SAO, S/o Raghubir Sao, R/o village – Dewdatpur Akauni, P.s. Daudnagar, District – Aurangabad …… Petitioner Versus STATE OF BIHAR ….. Opp. Party ----------- For the petitioner : Mr. Bakshi S.R.P.Sinha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. -------- 2 6.2.2009 The petitioner who is sole F.I.R. named accused in Daudnagar P.S. Case No. 143 of 2006 has prayed for the quashing of the order dated 21.12.2006 passed therein by learned Chief Judicial Magistrate, Aurangabad, whereby he has taken cognizance of offence under section 420 I.P.C. It appears that on receipt of confidential information that the petitioner was selling fertilizer in the black market his shop premises was raided by Block Agriculture Officer, on 13.9.2006. It is stated that on seeing the police party the petitioner fled away and from the shop premises 20 bags of Urea each weighing 50 K.G. was recovered. On demand the family members of the petitioner could not produce any document authorizing storage of Urea. Accordingly the Urea was seized and this case was instituted on the basis of the written report submitted by the said Block Agriculture Officer, under section 420 IPC and section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”). After due investigation police submitted a charge sheet under section 420 IPC and section 7 of the E.C. Act against the - 2 - petitioner. However, learned Chief Judicial Magistrate by the impugned order has taken cognizance only under section 420 IPC. Assailing the order it has been submitted by the learned counsel for the petitioner that from the averments in the written report of the Block Agriculture Officer none of the ingredients of the offence under section 420 IPC is made out and, therefore, the taking of cognizance is bad in law. The submissions advanced by the learned counsel for the petitioner has sufficient force. For an offence under section 420 IPC it must be proved that the complainant parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dis-honest intention from the very outset. Where there is no allegation of the complainant being put to wrongful loss there cannot be any case of cheating. There is another aspect of the matter. The sale of Urea is controlled by the Fertilizer Control Order, 1985 and the persons who are authorized to conduct, search and seizure under the Fertilizer Control Order are amended in Clause 27 of the said Order and by notification no. 5-F-33/5513 dated 16.4.1986 the Govt. of Bihar has authorized ten categories of persons who could act as Inspectors and exercise powers under Clause 27. At Sl. No. 10 of that notification figures the Block Agriculture Officer who is empowered to conduct, search and seizure within his block but there is a rider to the exercise of his power which is that he can exercise power of Inspector within a Block only in the event a - 3 - Block Development Officer is not posted. There is no averment in the written report that on the date of the inspection and seizure three was no Block Development Officer posted in the area and thereby the informant was duly empowered to conduct the search and seizure. The learned Chief Judicial Magistrate taking cognizance was remiss in not considering this aspect of the matter. He was also remiss in not taking cognizance under section 7 of the E.C. Act although the charge sheet revealed that it was being submitted for commission of offences under section 420 IPC and 7 E.C. Act. In view of the discussions made above the impugned order is set aside being bad in law and unwarranted with a direction to the cognizance taking court to peruse the charge sheet properly and act in accordance with law. Accordingly this application is allowed and the matter is remitted back to the court below in the light of the observation made above. Spd/- (Abhijit Sinha, J.)