Bikash Kumar Agrawal vs State Of Odisha
2023 Latest Caselaw 872 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.5024 of 2014

  Bikash Kumar Agrawal                     ....              Petitioner
                                      Mr. Trilochan Nanda, Advocate


                                 -Versus-


  State of Odisha                           ....          Opposite Party
                                                    Mr. P.K.Rout, AGA

            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT: 25.01.2023

1.

Invoking inherent jurisdiction of this Court, the petitioner has challenged the impugned order dated 12th September, 2014 (Annexure-1) passed in G.R. Case No. 655 of 2012 by the learned SDJM, Bolangir whereby an application under Section 239 Cr.P.C. filed by him seeking discharge in respect of the offence under Section 7 of the Essential Commodities Act (herein after referred to as 'the E.C.Act') was rejected and also the entire of the criminal proceeding on the grounds stated therein.

2. In fact, an F.I.R. was drawn by the S.I. of police of Bolangir Sadar P.S. with regard to an incident dated 13th September, 2012, consequent upon which, a case under Section 7 of the E.C. Act was registered showing the driver of the vehicle in question in which the fertilizer bags were being transported and two others as the accused persons. On completion of investigation, the local police submitted the chargesheet against the petitioner and also the driver under the alleged offence. Finally, at the stage of framing of charge, the petitioner moved the application under Section 239 Cr.P.C. seeking discharge but as earlier mentioned, it was rejected vide the impugned order under Annexure-1.

Bikash Kumar Agrawal Vrs. State of Odisha

3. Heard Mr. Trilochan Nanda, learned counsel for the petitioner and Mr. P.K.Rout, learned AGA for the State.

4. As per the F.I.R. the informant and the Assistant Agricultural Officer after having received reliable information as to the illicit transportation of urea fertilizer followed by an enquiry reached at the spot and intercepted the alleged vehicle bearing registration No. OR 0305 04 loaded with 100 bags of fertilizer. Accordingly, investigation was conducted and the petitioner and the driver were chargesheeted under Section 7 of the E.C. Act with the conclusion that the alleged transportation was for the purposes of black marketing. Thereafter, the plea for discharge was rejected under Annexure-1.

5. Mr. Nanda, learned counsel for the petitioner submits that the petitioner is the authorized dealer under a valid license issued by the Agriculture Department and as such, there was no violation of any of the provisions of Fertilizers Control Order, 1985 as the stock of fertilizer held by him was covered under the license. It is claimed that though the license of the petitioner was suspended but later on, it was revoked by the orders of the District Agricultural Officer, Bolangir after having found him not involved in black marketing. Furthermore, Mr. Nanda submits that the confiscation proceeding in E.C. Case No. 09 of 2012 in respect of the fertilizers was dropped by the learned Collector & District Magistrate, Bolangir after being satisfied that it was being transported at the relevant point of time having been owned and purchased by the local farmers, who filed a joint application for release of an amount of Rs. 28,155/- spent towards purchasing the fertilizers while producing cash memos in respect of seized 100 bags of urea fertilizer. A copy of the order dated 17th January, 2013 in E.C. Case No. 9 of 2012 is referred to by Mr. Nanda, while pleading for discharge of the petitioner. In support of such

Bikash Kumar Agrawal Vrs. State of Odisha

contention, Mr. Nanda, learned counsel for the petitioner cited the following decisions, such as, Satya Narayan Kejriwal and Another Vrs. The State of Bihar & Others 1990(1) PLJR 308: MANU/BH/0296/1989; Akshaya Kumar Nayak Vrs. Smt.Lilima Nayak (2008) 39 OCR 429; Jagannath Traders Vrs. Chakradhar Barik, Marketing Inspector 2008(II) OLR 688; and Pratap Rudra Mishra @ Pratap Chandra Mishra Vrs. Susanta Kumar Hota, Inspector of Supplies 89(2000) CLT 725 and it is contended that as there is no case made out and morefully when the confiscation proceeding has been dropped, the criminal action should be brought to an end and terminated in exercise of extra-ordinary jurisdiction of this Court.

6. The petitioner stands chargesheeted under Section 7 of the E.C. Act. There is no dispute with regard to recovery and seizure of 100 bags of urea fertilizer while being transported in a vehicle which was intercepted by the informant and an official of the Agriculture Department. In so far as the confiscation proceeding in E.C. No. 9 of 2012 is concerned, it was dropped by the orders of the Collector & District Magistrate, Bolangir vide Annnexure-5. In the said proceeding, the local farmers approached and filed a joint application to confirm and corroborate the fact of transportation of fertilizer in the alleged vehicle at their instance supported by cash memos in respect thereof. The report of the I.O. was received in the confiscation proceeding which indicated that after verification of records, the fertilizer stock in the godown of the petitioner was found to be genuine. Having received such a report, the Collector & District Magistrate, Bolangir reached at a conclusion that the seized stock of the fertilizer and also the vehicle are not liable for confiscation and consequently, passed the order dated 17th January, 2013 (Annnexure-5).

Bikash Kumar Agrawal Vrs. State of Odisha

7. Mr. Nanda, learned counsel for the petitioner refers to the decision in Pratap Rudra Mishra (supra) to contend that a case under Section 7 of the E.C. Act cannot be made out when there was no any evidence of storage of the fertilizers in the vehicle in question which was involved in its transportation. Admittedly, 100 bags of fertilizers were found in the truck while being intercepted and it is not a case of storage of the same and therefore, the aforesaid decision has been placed reliance on by Mr. Nanda. In Satya Narayan Kejriwal (supra) which was with reference to offence under Sections 420 and 272 IPC, the Patna High Court referring to the observations of the Authority in confiscation proceeding concluded that continuation of the criminal proceeding on the very same allegations with such an observation would not be justified. In fact, in the said case, the Authority while dealing with confiscation had observed that the violation was of technical nature with no other irregularities noticed and under such circumstances, the criminal proceeding was held to be an abuse of process of Court. In Jagannath Traders case, since no material whatsoever to show that there was illicit transaction in PDS oil available thereby violating the provisions of the OPDS Control Order, 2002, this Court quashed the proceeding initiated under Section 7 of the E.C. Act. In the decision of Akshaya Kumar Nayak (supra), in more or less in a similar situation like the present, where the licence of the dealer was cancelled but was subsequently revoked, this Court held that it would be a futile exercise to continue with the prosecution, exercised the inherent jurisdiction and quashed the criminal proceeding under Section 7 & 9 of the E.C. Act.

8. The conclusion so drawn and reached at in E.C. Case No. 9 of 2012 is to the effect that the stock in the godown of the petitioner was genuine as reported by the local police and not only that, the

Bikash Kumar Agrawal Vrs. State of Odisha

seized bags of urea fertilizer were claimed by the local villagers by placing a demand in that respect having produced the cash memos. With such a finding, the Collector & District Magistrate, Bolangir held that the I.O. of the case failed to bring home the charge against the petitioner and the driver and finally dropped the proceeding and also directed that the sale proceeds of 121 bags to be released in favour of the petitioner. If there was genuine stock maintained by the petitioner and the local farmers promptly approached the local administration claiming the fertilizers to have been purchased by them but seized by the local police while being transported in the alleged vehicle, the fact which could be confirmed during the confiscation proceeding, it may not be unjustified to conclude that the petitioner was not involved in any such black marketing which was alleged and for which the F.I.R. was drawn and action followed. In an identical case, the criminal proceeding was directed to be quashed referring to an observation of the confiscating Authority by Patna High Court in Satya Narayan Kejriwal and likewise in Akshaya Kumar Nayak when offence under Section 7 of the E.C. Act could not be established as the retailers claimed to have received the quota of kerosene oil revealed during an enquiry by the Sub-Collector and there also the dealer's license was though initially cancelled but was subsequently restored, the prosecution was terminated and it was quashed. Such is the situation involving the petitioner whose license was cancelled and then revoked after it was ascertained that he was not dealing with the fertilizers illegally rather was transporting it in the alleged vehicle at the instance of the local farmers. Under the above circumstances, it can thus be said that no material is available on record so as to hold that an offence under Section 7 of the E.C. Act is prima facie made out. In other words, it is a fit case where the inherent jurisdiction should be

Bikash Kumar Agrawal Vrs. State of Odisha

exercised by this Court in order to quash the proceeding pending before the learned court below.

9. Accordingly, it is ordered.

10. In the result, the CRLMC stands allowed. As a consequence, the impugned order dated 12th September, 2014 and the criminal proceeding in connection with G.R. Case No. 655 of 2012 pending in the file of the learned SDJM, Bolangir is hereby quashed for the reasons stated herein before.

(R.K. Pattanaik) Judge

kabita