IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.57452 of 2007 BHABENDRA BHARTI @ BHAVENDRA KUMAR BHARTI son of Late Rameshwar Safi, resident of Village- Srikhandi Bhitta, Police Station- Sursand, District- Sitamarhi. … Petitioner. Versus 1. THE STATE OF BIHAR 2. Ashok Kumar Jha, Block Supply Officer, Sursand, Dist. Sitamarhi. … Opposite parties For the Petitioner Mr. N. K. Agrawal, Sr. Adv. Mr. Dinesh Jha, Adv. For the State Mr. Jharkhandi Upadhayay, APP ----------- 3. 23.07.2009. Heard counsel for the parties. The prayer in this application is for quashing of an order dated 10.10.2007 passed by the Sub-divisional Judicial Magistrate, Pupri taking cognizance for an offence under Section 414 of the Indian Penal code (I.P.C.) and Section 7 of the Essential Commodities Act (E.C. Act) in connection with Sursand P.S. Case No. 112 of 2007 (G.R. No. 353 of 2007) and summoning the petitioner to face trial. From reading of the application filed before this Court, it would appear that one Ekramaul Haque was a licensee under the Public Distribution System holding a license in terms of the Bihar Trade Articles (Licenses Unification) 2 Order, 1984, hereinafter referred to as the Control Order, and his license was suspended on the ground of certain discrepancies found in course of search and seizure of his premises on or after 16.4.2007 when a criminal case was also lodged against him for shortage of 245 quintals of food grains which according to the report of the Block Development Officer, Sursand were sold by him in black-market. Later on, the villagers on 16.8.2007 had found some of the food grains i.e. 23 bags of wheat bearing mark and emblem of Food Corporation of India being sold by this petitioner to one Ram Deo Sah and accordingly Sursand P.S. Case No. 112 of 2007 was instituted on 16.8.2007 for an offence under Section 414 of the I.P.C. and Section 7 of the E.C. Act on a written report submitted by the Block Supply Officer along with seizure list. The police after investigation of the aforesaid case as with regard to the unauthorized sale and possession of 23 bags of F.C.I. wheat has filed a charge- sheet both against the petitioner as also 3 purchaser, namely, Ram Deo Sah whereafter the court below after looking into the charge-sheet had found a prima-facie case for an offence under Section 414 of the I.P.C. and Section 7 of the E.C. Act and accordingly, had taken cognizance under the aforesaid offences and had issued summons to both the petitioner and co- accused, namely, Ram Deo Sah. Learned senior counsel appearing on behalf of the petitioner, however, while assailing the impugned order taking cognizance has submitted that from the reading of the First Information Report itself, no offence under Section 7 of the E.C. Act and/or Section 414 of the I.P.C. is made out. In this context, he had submitted that there would be no question of applicability of Section 7 of the E.C. Act because the petitioner was neither the licensee nor there was any prohibition of sale of wheat in open market. He went to expand his submission by taking a plea that as there was no complaint and/or substantive case of theft of such wheat allegedly belonging to F.C.I. they being 4 not a stolen property would not have led to prosecution of the petitioner for an offence under Section 414 of the I.P.C. In this context, he had placed reliance on two judgments of this Court as in the case of M/s Hanutram Jawahirlal & Anr. vs. State of Bihar reported in 1989 PLJR 234 as also in the case of Bishwanath Kedia vs. State of Bihar reported in 1989 PLJR 901. Learned counsel for the State on the other hand had submitted that there was a prima-facie case in the First Information Report itself against the petitioner of dealing with the food-grains of F.C.I. which was not available in open market for sale and that there was a specific case that these 23 bags of wheat or part of the consignment of the license dealers Ekramul Haque whose license was cancelled in the month of April, 2007 and the said 23 bags of wheat were actually a stolen property as defined under Section 410 of the Indian Penal Code. In order to support himself, learned counsel for the State had placed reliance not only on the provision of the Control ORDER but, also 5 on the Division Bench judgment of Bombay High Court in the case of Emperor Vs. Abdul Gani Bahadurbhai reported in AIR 1926 Bombay 71 as also on the judgment of Gujarat High Court in the case of Hastimal Asaldas Vs. The State of Gujrat reported in 1975(1) Criminal Law Journal 983. After giving a very serious consideration to the aforementioned submission, this Court is of the opinion that both the offences under Section 7 of the E.C. Act and Section 414 of the I.P.C. is made out against the petitioner. From a bare reading of the First Information Report, it would be found that there were prima-facie allegations constituting offence under Section 7 of E.C. Act and Section 414 I.P.C. which stood also substantiated by the police in course of investigation leading to submission of the charge-sheet against the petitioner and one more accused person. There is no doubt that in the First Information Report, it has been categorically mentioned that 23 bags of wheat seized from the possession of the 6 petitioner were part of the consignment which were given to Ekramul Haque whose license had been suspended a few months back. The court below or even this Court at this stage would not go into the correctness or otherwise of the allegation as to whether the seized 23 bags of wheat actually belong to Ekramul Haque or not and to that extent, the explanation of the petitioner by placing reliance on the First Information Report filed against Ekramul Haque showing only shortage of rice (not wheat) being at best a defence version can be looked into only at the stage of trial. This Court, however, must take into account that the moment the license of Ekramul Haque under Public Distribution System in terms of the Control Order had been suspended in the month of April, 2007, he had no authority to part with any consignment in terms of Clause 12 of the Control Order, which puts a prohibition on disposal of trade articles when license is suspended or cancelled in following terms:- 7 “12. Disposal of trade articles when licence is suspended or cancelled.- When a licence issued under this Order is cancelled or suspended, the stocks of trade articles available with the dealer at the time of such cancellation or suspension shall be disposed of by him within [145 days] from the date of receipt of the order of cancellation or suspension: [Provided that a dealer due to obvious reasons could not dispose of the stocks of trade articles within the stipulated period, in that case the dealer shall intimate the licensing authority about it and will seek extension of time for disposal of the stock on which the licensing authority shall take necessary action for disposal of the stock after due consideration of the reasons.]” Admittedly license of Ekramul Haqaue was suspended in the month of April, 2007 as would apparent from reading of the First Information Report filed against him (Annexure-3) and the petitioner had also not claimed that such 23 bags of wheat were supplied to him by Ekramul Haque within a period of 45 days. The allegation of the Block Development Officer in the First Information Report against the petitioner is quite specific 8 that the petitioner, in fact, failed to explain the possession of 23 bags of wheat. It must be taken note of the fact that F.C.I. does not sell wheat in open market and such wheat are available only to the license dealers for its being distributed among the ration card holders and therefore, possession of 23 bags of wheat each having 50 Kilograms therein would lead to an automatic presumption that 11.5 quintals of wheat were not in possession of the petitioner as a ration card holder or a consumer who had received the same from Ekramul Haque. At least, the petitioner did not claim so as is clearly mentioned in the First Information Report itself. In that view of the matter, it cannot be said that a prima-facie case as with regard to the sale of wheat by the petitioner in the open market which was meant by way of F.C.I. supplied to the license dealers, would not constitute an offence under Section 7 of the E.C. Act which only envisages contravention of any order made under Section 3 of the Act. 9 There can be no doubt that the provision of Bihar Trade Articles (License Unification) Order is also one under Section 3 of the Act and therefore, if the petitioner was held to be indulged in sale of the stock of F.C.I. belonging to a license dealer whose license had been suspended, the applicability of Section 7 of the E.C. Act cannot be ruled out. Moreover, at the time of taking cognizance, the court has to only examine as to whether accepting the allegation in the complaint without adding or subtracting anything thereto, the materials before the Magistrate, a prima- facie case is disclosed or not. The order taking cognizance, in fact, cannot be quashed on a defence version of an accused as was held even in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604. As with regard to the last submission of learned counsel for the petitioner that no offence is made out under Section 414 of the I.P.C., one has to appreciate it only in the backdrop of 10 expression „stolen property‟, as has been defined under Section 410 of the I.P.C. which reads as follows:- “410. Stolen property.- Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property” [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.” From the aforesaid definition of „stolen property‟, it would be clear that even such property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed should also be held to be stolen property. Here in the present case, the allegation that the petitioner was selling 23 bags of F.C.I. wheat to another person which were part and parcel of the 11 consignment allotted to the Ekramul Haque, a suspended licensee, under the Control Order would by itself bring the wheat bag under the wide definition of stolen property, inasmuch as, the petitioner also never claim to be in possession of the 23 bags of F.C.I. wheat in course of search and seizure to be belonging to him. The explanation of the petitioner that no such wheat was searched from his possession or that in the search list, his signature is not there or that he is a teacher, are his defence version which cannot be looked into at the stage of taking cognizance specially when the Block Supply Officer in the First Information Report had specifically held that “xzke fHkV~Bk ¼pjkSr jksM½ esa ukxfjdksa }kjk 23 cksjk xsgwW ftlij ,Q0lh0vkbZ0 dk eqgj gS idM+k x;k gS ,oa bl xsgwW dks nks O;fDr;ksa }kjk ysdj tk;k tk jgk FkkA ;s lHkh xsgwW ,oa idM+k;k gqvk O;fDr fHkV~Bk vks0ih0 ij gSA vkns”kkuqlkj 7 cts eSa fHkV~Bk vks0ih0 x;k vkSj eSaus ogkW j[ks gq, dqy 23 cksjk xsgwW dk voyksdu fd;k rks ik;k fd lHkh cksjs ij ,Q0lh0vkbZ0 dk eqgj gS vkSj lHkh cksjs leku otu okys ik;s x;s gSa ,oa e”khu ds flykbZ /kkxs dks gVkdj gkFk ls flykbZ fd;k gqvk ik;k x;k gSA ns[kus ls gh ;s lHkh cksjs ,Q0lh0vkbZ0 dk iSd fd;k gqvk yxrk gSA ;s lHkh cksjs ml iapk;r ds fuyafcr tfoiz- fodzszrk ,djkeqy gd ds [kk|kUu xksnke ij ls feys gSa tgkW ij dqN eghus iwoZ xksnke dks lhy fd;k x;k gS] tSlk yksxksa }kjk crk;k x;kA Kkr gS fd HkosUnz Hkkjrh firk Lo0 jkes”oj lkQh xzke Jh[kaMh fHkV~Bk 12 Fkkuk&lqjlaM ftyk lhrke<+h }kjk Jh jkenso lkg firk Jh jkes”oj lkg xzke Jh[kaMh fHkV~Bk Fkkuk lqjlaM ftyk lhrke<+h dks mDr eky fodz; fd;k tk jgk Fkk ftlds laca/k esa iwNrkN djus ij fdlh Hkh izdkj dk O;olk; laca/kh dkxt ugha fn[kk;k x;kA bl izdkj bl laca/k esa dzsrk vkSj fodzrk nksuksa dh Hkwfedk lUnsgkLin gSA D;ksafd dzsrk us Hkh dS”keseks ugha fn[kk;kA vkSj bl izdkj tcko larks’kizn ugha izfrr gqvk gS ,oa mDr fLFkfr;ksa ds voyksduksijkUr [kk|kUu dh dkyk cktkjh izrhr gksrh gSA** When the aforementioned allegations were found to be also substantiated by the police in course of investigation, it would be difficult for this Court to hold that the consequential order taking cognizance suffers from infirmity only because no case of theft as with regard to 23 bags of wheat was specifically lodged at any pointed of time prior to the institution of the case of the petitioner. The Bombay High Court in the case of Abdul Gani Bahadurbhai (supra) had held that the ownership of property need not be traced for considering offence under Section 414 of the I.P.C. and it was sufficient if it is proved that property is stolen. Similarly, the Gujrat High Court also in the case of Hastimal Asaldas (supra) has held that; “…………… For establishing an offence under Section 414, it is not 13 necessary for the prosecution to prove that the property in respect of which assistance has been rendered in getting rid of it in a sinister fashion, was stolen property. It is enough if it is established that the offender knew or had reason to believe that the property he was trying to conceal or dispose of or make away with was stolen property. It is not necessary to establish from whom, how and when, as well as by whom, the theft was committed. It is also not necessary for the prosecution to establish to whom the help was rendered by the offender in disposing or concealing etc., the property………………”. That being so, the submission of learned counsel for the petitioner that since there was no earlier case lodged for theft of 23 bags of wheat of F.C.I., it could not be held to be either a stolen property or the petitioner being not liable to be prosecuted under section 414 of the Indian Penal Code, must be and is hereby rejected. The reliance placed by the petitioner on the judgment of this Court in the case of M/s Hanutram Jawahirlal (supra) is wholly misplaced, inasmuch as, 14 in the said judgment in paragraph no.18, this Court had found that there were enough materials on record to show that those articles were not stolen property because there was a valid transport voucher issued by the custom officer under the Custom Amendment Ordinance and Rules framed thereunder. This Court would fail to appreciate the applicability of the ratio of the aforementioned case in the facts and circumstances of the present case, inasmuch as, in the present case, no such valid order or authority was ever claimed by the petitioner rather he was completely speechless at the time of search and seizure and recovery of 23 bags of F.C.I. wheat from his conscious possession which allegedly belonged to a suspended license dealer, namely, Ekramul Haque. Similarly, the ratio laid down by this Court in the case of Bishwanath Kedia (supra) would also not apply in the facts of the present case because therein also in paragraph no.4, this Court had held that the petitioner of that case being 15 contractor of a ERICON was carrying the iron rods in accordance with the agreement for the work assigned for which he was entrusted with the materials like cement, iron rods etc. Since the goods were meant for being carried by the petitioner of the aforesaid case in order to complete the contract work in pursuance of the agreement. It was in that backdrop that when the possession of the contractor, the petitioner of the aforesaid case against whom a criminal case was filed and cognizance had been taken who had been found to be an authorized person, that this Court had also recorded that prior lodging of a case under Section 414 I.P.C., a case of theft was necessary in order to constitute an offence under Section 414 of the I.P.C. As noted above, such is not the case here, inasmuch as, the petitioner himself never claimed before dealer or a bonafide purchaser of 23 bags of wheat from F.C.I. from any licensee under the Control Order. In that view of the matter, it cannot be said that the court below had 16 committed any error in taking cognizance of the offence under Section 414 I.P.C. It has to be always remembered that at the inception when the cognizance of offence is taken, the only requirement of law is making out of a prima-facie case. In order to succeed in a petition under Section 482 of the Cr.P.C., the petitioner therefore has to bring his case within the ambit of the verdict laid down in the case of Bhajan Lal (supra) and applying the test laid down by the Apex Court in the aforesaid case, this Court is of the considered opinion that the petitioner has not been able to bring his case within the guidelines given therein. Consequently, this application, being devoid of any merit, is hereby dismissed. kanchan (Mihir Kumar Jha, J. )