1. Kamal Prasad Choudhary, aged about 55 years, son of Late Bishnu Prasad Choudhary v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.965 of 2019 ------ 1. Kamal Prasad Choudhary, aged about 55 years, son of Late Bishnu Prasad Choudhary, resident of Village- Choudhary Nawadih, P.O. & P.S.- Palajori, District- Deoghar 2. Sahidan Parween, aged about 33 years, wife of Alim Ansari, resident of Village- Dudhani, P.O. & P.S.- Palajori, District- Deoghar 3. Sabina Bibi, aged about 40 years, wife of Alimuddin Mian, resident of Village- Dudhani, P.O. & P.S. – Palajori, District- Deoghar. … Petitioners Versus The State of Jharkhand … Opposite Party ------ For the Petitioner For the State
Legal Reasoning
: Mr. A.K. Kashyap, Sr. Advocate Mr. Anurag Kashyap, Advocate : Mr. Nawin Kr. Singh, Addl.P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal prosecution including the order dated 21.07.2014 passed by the learned Sub-Divisional Judicial Magistrate, Madhupur in connection with Palajori P.S. Case No.01 of 2012 corresponding to G.R. Case No.16 of 2012 whereby and where under the cognizance has been taken against the petitioners for the offence punishable under Section 7 of the Essential Commodities Act. 1 Cr. M.P. No.965 of 2019 3. The brief fact of the case is that on 10.01.2012 at 5 P.M. the food-grains of Antyodaya/BPL which was to be delivered to the petitioner No.1- who is the Fair-Price Dealer, were found loaded on a pick-up van near the house of Bala Sadhu. The same was noticed by the Mukhiya of the village when the pick-up van was found in market while going to the destination and on the basis of the written report of the Block Supply Officer, Palajori, the First Information Report was registered vide Palajori P.S. Case No.01 of 2012. After investigation of the case, police submitted the final form as mistake of fact but differing from the same, the learned Sub-Divisional Judicial Magistrate, Madhupur has taken cognizance of the offence punishable under Section 7 of the Essential Commodities Act, 1955. 4. Learned senior counsel for the petitioners draws attention of this Court to Section 7 of the Essential Commodities Act, 1955 which reads as under: - “7. Penalties.―[(1) If any person contravenes any order made under Section 3,― (a) (i) (ii) he shall be punishable,― 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 in the case of any other order, 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;] any property in respect of which the order has been (b) contravened shall be forfeited to the Government; (c) any package, 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. If any person to whom a direction is given under clause (b) of sub- (2) section (4) of section 3 fails to comply with the direction, he shall be 2 Cr. M.P. No.965 of 2019 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 not less than three months.] (2A) 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 [Provided that the Court may, for any adequate and special to fine: reasons to be mentioned in the judgment, impose a sentence of impri- sonment for a term of less than six months.] [(2-B) For the purposes of sub-sections (1), (2) and (2A), 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.]” and submits that Section 7 of the Essential Commodities Act, 1955 provides for penalty for contravention of any order made under Section 3 of the said Essential Commodities Act, 1955 but nowhere in the F.I.R., charge- sheet or even in the cognizance order; it has been mentioned as to which order issued under Section 3 of the Essential Commodities Act, 1955 has been violated by the petitioner and the co-accused person and in the absence of the same no offence punishable under Section 7 of the Essential Commodities Act, 1955 is made out even if the contents of the F.I.R. and the charge-sheet are taken to be true in its entirety. 5. It is next submitted that no incriminating material has admittedly been recovered from the petitioners and in the counter-affidavit also the State has 3 Cr. M.P. No.965 of 2019 not mentioned violation of any control order. Hence, it is submitted that the prayer as made in this Criminal Miscellaneous Petition be allowed. 6. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners for quashing the entire criminal prosecution and proceedings including the order dated 21.07.2014 passed by the learned Sub-Divisional Judicial Magistrate, Madhupur in connection with Palajori P.S. Case No.01 of 2012 corresponding to G.R. Case No.16 of 2012 whereby and where under the cognizance has been taken against the petitioners for the offence punishable under Section 7 of the Essential Commodities Act. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in the absence of any allegation of contravention of any order made under Section 3 of the Essential Commodities Act, 1955, certainly the penalty under Section 7 of the Essential Commodities Act, 1955 cannot be imposed. Even if the allegations against the petitioner as made out in the First Information Report are taken to be true in its entirety, as there is no allegation of contravention of any order made under Section 3 of the Essential Commodities Act, 1955 anywhere, therefore, the materials in the record are inadequate to make out a case for establishing the offence punishable under Section 7 of the Essential Commodities Act, 1955 against the petitioners. Under such circumstances this Court has no hesitation in holding that the learned Sub- Divisional Judicial Magistrate, Madhupur has committed an illegality by taking cognizance of a penal offence without any violation of the order made under Section 3 of the Essential Commodities Act, 1955. Hence, this Court is of the 4 Cr. M.P. No.965 of 2019 considered view that this is a fit case where the entire criminal proceeding including the order dated 21.07.2014 passed by the learned Sub-Divisional Judicial Magistrate, Madhupur in connection with Palajori P.S. Case No.01 of 2012 corresponding to G.R. Case No.16 of 2012 whereby and where under the cognizance has been taken against the petitioners for the offence punishable under Section 7 of the Essential Commodities Act, 1955, be quashed and set aside. 8. Accordingly, the entire criminal proceeding including the order dated 21.07.2014 passed by the learned Sub-Divisional Judicial Magistrate, Madhupur in connection with Palajori P.S. Case No.01 of 2012 corresponding to G.R. Case No.16 of 2012 whereby and where under the cognizance has been taken against the petitioners for the offence punishable under Section 7 of the Essential Commodities Act, 1955, is quashed and set aside qua the petitioners only. 9.
Decision
In the result, this Criminal Miscellaneous Petition is allowed. 10. In view of the disposal of this Cr.M.P., interim relief granted earlier vide order dated 17.10.2019 stands vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of August, 2024 AFR/ Saroj 5 Cr. M.P. No.965 of 2019