1. Amit Kumar Jaiswal 2. Pramod Kumar Gupta v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 101 of 2017 1. Amit Kumar Jaiswal 2. Pramod Kumar Gupta Versus …… Petitioners The State of Jharkhand …… Opposite Party CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Ashish Kumar Thakur, Advocate For the State : Mr. Prabhu Dayal Agrawal, Spl. P.P. --------- 06/Dated: 01/07/2024
Legal Reasoning
Heard Mr. Ashish Kumar Thakur, learned counsel for the petitioners and Mr. Prabhu Dayal Agrawal, learned counsel for the State. 2. This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 28.09.2016 and 10.11.2016 passed in Dumka (Town) P.S. Case No. 181 of 2016, corresponding to G.R. No. 895 of 2016, pending in the Court of learned S.D.J.M., Dumka. 3. The F.I.R. has been lodged alleging therein that on 29.07.2016, Informant along with SDO, Dumka. reached to the to the rice Arhat shops of one Pramod Kumar Gupta and Amit Kumar Jaiswal for the purpose of conducting a raid in their shops at about 7.30 P.M. It is alleged that during the course of raid in the shop of Pramod Kumar Gupta, 39 plastic bags of Rice were found and seized on suspicion that same might be belonging to the Rice bags of PDS, so it is suspected that that the aforesaid rice bags are kept for the purpose of doing black marketing. It is further alleged that some empty bags(govt. marked) were also found from there, accordingly the said articles were seized and after preparation of seizure the same was handed over to the building owner namely Abhishek Kumar and in this regard a Jimmenama was also prepared. It is further alleged that thereafter a search and raid was also 1 conducted in the shop of Amit kumar Jaiswal and Stock register was asked to produce but the same could not be produced before SDO, Dumka. It is further alleged that during the course of Search 8 Plastic bags of Rice. claiming to be the PDS Rice bags were found from his Shop and on the direction of the SDO, Dumka, the same were seized and a seizure list was prepared and thereafter further the seized 8 Plastic bags of Rice and other articles were handed over to the building owner namely Abhishek Kumar by way of Jimmenama. In view of the facts that bags of rice suspected to be the PDS rice and other articles were recovered from the shops of both the shopkeepers and further could not produce the stock register clarifies that both the shopkeepers are involved in black-marketing and further they used to sell the stolen articles. 4. On the basis of the aforesaid facts the present first Information report was lodged as against both the shopkeepers namely Pramod Kumar Gupta and Amit Kumar Jaiswal. 5. Mr. Ashish Kumar Thakur, learned counsel for the petitioners submits that the case has been falsely lodged against the petitioners. He submits that the petitioners are not running any PDS shop therefore Section 7 of Essential Commodities Act is not attracted. He further submits that mechanically section 414 of I.P.C was inserted in the F.I.R and the learned court has been pleased to take cognizance. He submits that against the seizure of the confiscated goods the petitioners moved before the appellate court in Confiscation Appeal No. 66 of 2016 and by order dated 12.09.2022 the appellate court has come to the conclusion that rice recovered from the possession of the petitioners have nothing to do with the P.D.S. shop and further by the said order learned appellate court has been pleased to direct to hand over the the proceeds of article to the petitioner. He further submits 2 that once the appellate authority has came to that finding and that order was not challenged by the State which attained finality this court may quash the entire criminal proceeding. He further submits that Essential Commodities Act is not made out in view of the fact that competent authority has not lodged the F.I.R and further which control order was violated under section 3 of the Essential Commodities Act is not disclosed in the F.I.R. itself which further strengthens the case of the petitioners. He submits that only on the suspicion section 414 of I.P.C. cannot be allowed to be continued and in view of that entire criminal proceeding may be quashed. 6. Mr. Prabhu Dayal Agrawal, learned counsel for the State opposes the prayer on the ground that once the Essential Commodities Act is set aside that does not mean that automatically section 414 of I.P.C. will not attract. He submits that the coordinate Bench of this Court has quashed the proceeding so far Essential Commodities Act is concerned however allowed to continue the proceeding under section 414 of the I.P.C. He relied in the case of “Nimai Chandra Dey Vs. State of Jharkhand” 2024 SCC Online Jhar 338. He further submits that Division Bench of this Court in the case of Surendra Kumar Jhunjhunwala Vs. State of Bihar 1990 SCC Online 205 has taken same view. In view of that this petition is fit to be dismissed. 7. Admittedly the F.I.R. was registered under the Essential Commodities Act and the allegations are also made under section 414 of I.P.C. The officer-in-charge of the police station has instituted the said F.I.R. Clause 14 of the Public Distribution System (Control) Order, 2001 reads as under: 14. “Provisions of the Order to prevail over previous orders of State Governments – The provisions of this order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such 3 State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement.“ 8. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provision as contained in Clause 14. 9. In such a situation, the provision of the Unification Order after commencement of the Public Distribution System (Control) Order, 2001 would not be workable so far it relates to the matter relating to distribution of PDS commodities. 10. Further, other limb of argument of the petitioner with regard to seizure the Court finds force in the argument of the learned counsel for the petitioner. Clause 10 of the said order which reads as under : 10. Power of search and seizure – (1) An authority authorized by State Government shall be competent to inspect or summon such records or documents as may be considered by him 3 necessary for examination and take extracts or copies of any records or documents produced before him. (2) If the said authority has reasons to believe on receipt of a complaint or otherwise that there has been any contravention of he provisions of this Order or with a view to securing compliance with this Order, he may enter, inspect or search the fair price shop or any premises relevant to transactions of business of the fair price shop. (3) The said authority may also search, seize or remove such books of accounts or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention of the provisions of this Order. (3A) The authority conducting search and seizure under sub-clause (3) shall inform the State Government or an officer authorized by it in this behalf, the details of the search conducted and the stocks of essential commodities so seized by them under that clause. (4) The provisions of section 100 of the Code of Criminal Procedure 1973, relating to search and seizure shall so far as may be, apply to search and seizure under this Order. 11. From perusal of the aforesaid provision, it appears that only the authority authorized by the State Government would be competent to make search and seizure of a place on receipt of a complaint of irregularities is being committed by the Public Distribution System Dealer however, in the case in hand the petitioners are not Public Distribution System Dealer. 4 12. Only bald allegation is made in the F.I.R that rice was stolen one however, the learned appellate court has come to the conclusion that rice was not stolen one and even he has been pleased to direct to return the proceeds of articles in favour of the petitioners which further suggests that allegations so far section 414 of I.P.C. is concerned that was mechanical. 13. For making a case under section 414 of I.P.C. one has to read the section 410 of I.P.C. which is definition section of section 414 of I.P.C for that essential ingredient of knowledge of these petitioners that such are stolen properties is one of the aspect 14. In view of above, no case under section 414 of I.P.C. is made out. So far two judgments relied by Mr. Argrawal in the case of Nimai Chandra Dey (supra) and Surendra Kumar Jhunjhunwala (supra) are concerned. In the case of Nimai Chandra Dey (supra) this was not the fact that appellate authority has directed to return the proceeds of articles to the petitioners. In that view of the matter that judgment is not attracted so far the present case is concerned The judgment of the Division Bench in the case of Surendra Kumar Jhunjhunwala (supra) the fact is otherwise in that case the Deputy Commissioner has dropped the confiscation proceeding and not proceeded in that view of that matter case was filed whereas in the present case confiscation was made and the appellate authority has come to the conclusion that illegally the confiscation was made and thus the Division Bench judgment is otherwise. 15. In view of above facts, reasons and analysis, the entire criminal proceeding including order taking order taking cognizance dated 28.09.2016 and 10.11.2016 passed in Dumka (Town) P.S. Case No. 181 of 2016, corresponding to G.R. No. 895 of 2016, pending in the Court of learned 5 S.D.J.M., Dumka is hereby quashed.
Decision
16. This petition is allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated. Satyarthi/A.F.R. ( Sanjay Kumar Dwivedi, J.) 6