Ramesh Prasad Keshari vs The State Of Jharkhand
2023 Latest Caselaw 2492 Jhar

                                           1                         Cr.M.P. No.3300 of 2021




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 3300 of 2021


                 Ramesh Prasad Keshari, aged about 56 years, S/o Thira Lal Keshari,
                 R/o Village -Lakarka No.6, Akash Kanali, Katrasgardh, Baghmara-
                 cum-Katras, P.O. +P.S. -Katras, District -Dhanbad
                                                   ....                Petitioner
                                         Versus

                 The State of Jharkhand            ....                  Opp. Party

                                         PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Mr. Mukesh Bihari Lal, Advocate For the State : Mr. P.D. Agrawal, Spl. P.P.

.....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

to quash the order dated 12.06.2020, passed by the learned

S.D.J.M., Dhanbad in Katras P.S. Case No. 267 of 2018

corresponding to G.R. No. 989 of 2020 and to quash the entire

criminal proceeding in connection with Katras P.S. Case No. 267

of 2018 corresponding to G.R. No. 989 of 2020, now pending in the

court of S.D.J.M., Dhanbad.

3. At the outset the learned counsel for the petitioner submits that

though the prayer for quashing the entire criminal proceeding has

been made but the petitioner does not press the said prayer and

confines the prayer only to quash the part of the order dated

12.06.2020, passed in the said G.R. Case No. 989 of 2020 by which

cognizance in respect of the offence punishable under Section 7 of

the Essential Commodities Act has been taken.

4. The allegation made in the said F.I.R. is that the petitioner being

a P.D.S. Shop owner with an intention of black marketing; used

the POS Machine with one UID by putting thumb impression, for

dispersing the commodities in respect of several Ration Cards

holders illegally.

5. It is submitted by the learned counsel for the petitioner that

consequent upon investigation of this case, police submitted

charge sheet and cognizance for the offences punishable under

Section 420 of the Indian Penal Code and under Section 7 of the

Essential Commodities Act. It is next submitted by the learned

counsel for the petitioner that Section 7 of the Essential

Commodities Act which envisages penalties for contravention of

any order made under Section 3 of the said Act reads as under:-

7. Penalties.-- [(1) If any person contravenes any order made under Section 3,--

(a) he shall be punishable,--

(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term shall not be less than three months but which may extend to seven years and shall also be liable to fine:

[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.]

(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

(c) any packing, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used

in carrying the property shall, if the court so orders, be forfeited to the Government.

(2) If any person, to whom a direction is given under clause (b) of sub-section (4) of Section 3, fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.]

(2-A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:

[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

[(2-B) For the purposes of sub-sections (1), (2) and (2-A), the fact that an offence under sub-clause (ii) of clause (a) of sub- section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months or six months, as the case may be.]

[(3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub- section for contravention of an order in respect of an essential commodity, the Court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the order.]

It is then submitted that neither in the F.I.R. nor in the charge

sheet, there is any reference to any order made under Section 3 of

the Essential Commodities Act having been violated and in the

absence of the same, the offence punishable under Section 7 of the

Essential Commodities Act cannot be made out and in this

connection, the learned counsel for the petitioner relies upon the

Judgment of the three Co-ordinate Benches of this Court, in the

cases of Arun Kumar @ Arun Sao Vs. The State of Jharkhand,

reported in 2015 SCC Online Jhar 4816, Arjun Prasad Choudhary

Vs. State of Jharkhand, reported in 2018 SCC Online Jhar 2622

and Mahesh Kumar & Ors. Vs. State of Jharkhand, reported in

2022 SCC Online Jhar 11. Hence, it is submitted by the learned

counsel for the petitioner that the portion of the order by which

cognizance for the offence punishable under Section 7 of the

Essential Commodities Act has been taken by the learned S.D.J.M.,

Dhanbad, be quashed.

6. The Learned Spl. P.P. on the other hand submits that though the

State has filed a counter affidavit but in that counter affidavit also

the State has failed to mention the order under Section 3 of the

Essential Commodities Act; which has been violated by the

petitioner.

7. Having heard the submissions made at the Bar and going

through the materials in the record, it is pertinent to mention here

that; from the plain reading of Section 7 of the Essential

Commodities Act , it is crystal clear that the penalties envisaged

under Section 7(1) of the said Act can only be imposed, if and only

if, there is contravention of any order made under Section 3 of the

said Act and the penalties under Section 7(2) can be imposed if a

person to whom a direction is given under Clause (b) of sub-

section (4) of Section 3 fails to comply with the direction but as

fairly submitted by the learned Spl. P.P. for the State that State has

not disclosed either in the First Information Report or in the

charge sheet or in the counter affidavit filed in this case, the order

concerned of Section 3 for violation of which the penalty sought to

be imposed upon the petitioner under section 7 of the said act nor

there is any allegation against the petitioner of not complying

with the direction given under Clause (b) of Sub-section (4) of

Section 3 of the Essential Commodities Act. Hence, in the

considered opinion of this Court, even if the allegations made

against the petitioner are considered to be true in its entirety, still

the offence punishable under Section 7 of the Essential

Commodities Act is not made out.

8. Accordingly, the part of the order dated 12.06.2020, passed in

G.R. Case No. 989 of 2020 by the learned S.D.J.M., Dhanbad, so far

as it relates to the cognizance taken under Section 7 of the

Essential Commodities Act is quashed and set aside but it is made

clear that the cognizance under Section 420 of the Indian Penal

Code taken by the said order dated 12.06.2020 in G.R. Case No.

989 of 2020 by the learned S.D.J.M., Dhanbad will remain intact.

9. In the result, this criminal miscellaneous petition is allowed to

the aforesaid extent only.

10. In view of the disposal of this criminal miscellaneous petition,

the interim order granted earlier stands vacated.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st August, 2023 AFR/Sonu-Gunjan/-