Naresh Sah vs The State Of Bihar
2022 Latest Caselaw 2961 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.11049 of 2021
          Arising Out of PS. Case No.-198 Year-2018 Thana- KURSAILA District- Katihar
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Naresh Sah S/O Moti Sah, Resident of Village - Balthi Maheshpur, P.S. - Kursaila, District - Katihar.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Block Supply Officer, Kursaila, Katihar, Bihar

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr.Shashi Bhushan Kumar, Adv. For the Opposite Party/s : Ms. Anita Kumari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT Date : 19-05-2022

The present petition has been filed for quashing FIR

bearing Kursaila P.S. Case No. 198 of 2018 dated 04.11.2018

lodged under section 7 of the Essential Commodities Act as

also the criminal proceedings emanating therefrom.

2. The case of the prosecution in brief, as per the

complaint lodged by the Block Supply Officer, Kursaila, is that

in the night of 03.11.2018, information was received that food

grains have been stored in the house of the petitioner for the

purposes of black marketing, whereafter the said Block Supply

Officer, Kursaila had contacted the Block Development Officer,

Kursaila and others and had then carried out a raid in the go-

down situated in the premises belonging to the petitioner. On Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

search, it was found that the petitioner and others were packing

rice, whereupon with the help of the police officials, the lock of

one of the room situated in the premises of the petitioner was

broken and, 439.68 quintal of rice was recovered, apart from

recovery of some packaging materials and equipments.

3. The Ld. Counsel for the petitioner submits that the

petitioner had filed a writ petition bearing CWJC No. 6034 of

2019 inter alia praying therein for release of 439.68 quintals of

rice and other articles and a co-ordinate Bench of this Court

vide order dated 17.04.2019 had directed the Collector-cum-

District Magistrate, Katihar to release the rice in question,

whereafter, the rice in question was released in favour of the

petitioner.

4. The learned counsel for the petitioner has referred to

a gazette notification dated 15th February 2002, paragraph no. 3

whereof is reproduced herein below:-

"With the coming into effect of this order any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarsegrains, sugar, edible oilseeds and edible oils and shall not require a permit or license therefor under any order issued under the Essential Commodities Act, 1955."

Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

5. It is thus submitted by the learned counsel for the

petitioner that since the petitioner is a trader, dealing in sale and

purchase of food grains, he cannot be prosecuted for the offence

as alleged under section 7 of the Essential Commodities Act,

especially in view of the fact that rice is no longer a controlled

item. The learned counsel for the petitioner has also relied on

Invoices dated 20.10.2018 and 24.10.2018 (Annexure-2 to the

present petition) to show that he had purchased 471.50 quintals

of rice from Uma Shankar Trader just prior to lodging of the

FIR on 04.11.2018. Hence, it is submitted that the rice in

question has been purchased in a bona fide manner by the

petitioner and moreover, he not being a PDS dealer, there is no

question of him engaging in black marketing. The learned

counsel for the petitioner has also relied on a judgment dated

26.07.2018, rendered by a co-ordinate Bench of this Court in

Cr. W.J.C. No. 2245 of 2017, wherein similar was the facts and

circumstances and the learned co-ordinate Bench of this Court,

in the said case was pleased to quash the FIR. Learned counsel

for the petitioner has further relied upon yet another Judgment,

rendered by a Coordinate Bench of this Court in the case of

Shriram Rai & Anr. Vs. the State of Bihar and Ors. reported Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

in 2006 (1) PLJR 504 wherein, in similar circumstances, where

300 bags of rice were seized, alleging that those were being

brought from Gopalganj and Rohtas for black marketing, the

learned Coordinate Bench of this Court, in paragraph nos. 3 & 4

of its Judgment, took note of the judgments of this Court,

rendered in the case of Santosh Kumar vs. State of Bihar,

[1990 (2) PLJR 520] and Tarapado Ghosh and Ors. vs. State

of Bihar, [1990(2) PLJR 602]. It would be apt to reproduce

paragraph nos. 3 & 4 here under for ready reference:-

"3. Mr. Y.V.Giri, Senior Advocate, appearing on behalf of the petitioners contends that no order made under Section 3 of the Essential Commodities Act restricts movement of rice from one place to another and, as such, petitioners cannot be said to have violated any order made under the aforesaid provision to bring the act within the mischief of Section 7 of the Essential Commodities Act. In support of his submission he has placed reliance on a Division Bench Judgment of this Court in the case of Santosh Kumar vs. State of Bihar, [1990 (2) PLJR 520] and my attention has been drawn to paragraph 9 of the judgment, which reads as follows:-

"It is painful to note that the authorities who are the custodians of law Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

and order are not acquainted with the latest position of law. The said Movement Control Order for the violation of which the petitioner has been put to harassment, was rescinded as far back as on 30th September, 1977. In that view of the matter the entire prosecution seems to be without any legal foundation and it is fit to be quashed at this stage."

4. Reliance has also been placed on a decision of this Court in the case of Tarapado Ghosh and Ors. vs. State of Bihar, [1990(2) PLJR 602] and my attention has been drawn to the following passage from paragraph 5 of the judgment:-

"The Bihar Foodgrains (Movement Control) Order, 1957 had been in operation for several years but this Control Order was rescinded with effect from first day of October, 1977 by the Central Government's Notification No. S.O. 696 (E) 30th September, 1977. This fact is accepted by the learned State Counsel. Therefore, admittedly during the time of occurrence i.e. April to June, 1978 there was no control Order under the Act to restrict the movement of foodgrains from Bihar to any outside place.

It follows, therefore, that if pulses were booked from any place in Bihar, which in the present case is Chapra, to any destination Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

outside the State no offence arises on this account."

6. Per contra, though the learned A.P.P. appearing for the

State, Smt. Anita Kumari Singh, has argued that the offence

under section 7 of the Essential Commodities Act is definitely

made out, however, it has not been disputed that the present

case is squarely covered by the judgment dated 26.07.2018,

rendered by a co-ordinate Bench of this Court in Cr. W.J.C. No.

2245 of 2017.

7. I have heard the learned counsel for the parties and

perused the materials on record from which this Court finds

that firstly the Invoices produced by the petitioner, Annexure-2

to the writ petition, has not been found to be false much less

disputed in the present proceedings and secondly this Court also

finds that pursuant to publication of the gazette notification

dated 15.02.2002, rice is no longer a controlled item apart from

the fact that the present case stands squarely covered by the

Judgment dated 26.07.2018 passed in Cr. W.J.C. No. 2245 of

2017, hence, this Court does not find any reason to differ with

the said judgment dated 26.07.2018.

Having regard to the facts and circumstances of the

case and for the reasons mentioned herein above, this Court is Patna High Court CR. MISC. No.11049 of 2021 dt.19-05-2022

of the considered opinion that continuance of the present

proceedings against the petitioner would be an abuse of the

process of the Court, hence the FIR being Kursaila P.S. Case

No. 198 of 2018, registered for the offence under section 7 of

the Essential Commodities Act, is liable to be quashed and it is,

accordingly, quashed.

8. The present petition stands allowed.

(Mohit Kumar Shah, J)

Tiwary/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          23.05.2022
Transmission Date       23.05.2022