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IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No. 265 of 2007
1. Bishnu Deo Singh
2. Shambhu Prasad Gupta
3. Beni Prasad Tanti -- -- -- -- -- -- -- Petitioner(s)
Versus
The State of Jharkhand -- -- -- -- -- -- -- Opposite Party
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner(s) : Mr. Rajeeva Sharma, Sr. Advocate
For the State : Mr. Md. Hatim, A.P.P.
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/15.12.2009 Petitioners have invoked the inherent power of this Court
under Section 482 of the Code of Criminal Procedure for
quashment of their entire criminal proceeding including the order
impugned dated 6.11.2006 passed by the learned Chief Judicial
Magistrate, Sahibganj by which cognizance of the offence was
taken under Section 7 of the Essential Commodities Act, 1955 as
also under Sections 3/4 of the Explosive Substance Act against
them in Sahibganj (T) P.S. Case No.178 of 2005, corresponding to
G.R. No.401 of 2005.
Prosecution was launched on the basis of the written report
presented by the informant Block Supply Officer, Sahibganj before
the officer-in-charge of Sahibganj Police Station stating, inter alia,
that he had received information on 18.11.2005 that the local
L.P.G. distributor, namely, Shri Bishnu Deo Singh had been selling
L.P.G. refills in black market with the help of his employees. A team
was organized for conducting raid comprising Executive Magistrate,
District Supply Officer and many other officers including the police
force and the team conducted raid in the house of one Beni Prasad
Tanti. It was alleged that Beni Prasad Tanti though escaped, but in
course of search, three filled L.P.G. cylinders of Indane Gas were
recovered to which no explanation could be given. However, wife of
the said Beni Prasad Tanti narrated that these cylinders were kept
in her house by her neighbour Sambhu Prasad Gupta , who was
an employee of the local gas distributor, namely, Shri Bishnu Deo
Singh. From that place, the raiding party went to the residential
office of the local distributor-petitioner No.1 Shri Bishnu Deo Singh
but it was alleged that he escaped after locking his office and the
members of his family did not co-operate in such inquiry by
producing the coupons of the gas cylinders. His office was sealed
in presence of the senior officers and finally, it was alleged that the
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petitioner No.1 Shri Bishnu Deo Singh with the help of his
employees, had kept three filled gas cylinders in the house of the
petitioner no.3 Beni Prasad Tanti so that the cylinders could be
sold in the black market. It was requested to take action against all
the three petitioners under Section 7 of the Essential Commodities
Act as also under relevant Sections of the Explosive Substance
Act.
Learned Sr. Counsel Mr. Rajeeva Sharma, at the outset,
submits that in the facts and circumstances of the case, criminal
prosecution of the petitioners for the alleged offence either under
Section 7 of the Essential Commodities Act or under Sections 3/4
of the Explosive Substance Act is not maintainable and therefore,
entire prosecution is liable to be quashed. Learned Sr. Counsel
further submits that the Chief Judicial Magistrate has taken
cognizance of the offence under such sections without specifying
as to which provision of the control order or unification order has
been violated by the petitioners as framed under Section 3 of the
Essential Commodities Act so as to call for their punishment under
Section 7 of the Essential Commodities Act.
Admittedly, petitioner No.1 had obtained licence for
distribution of L.P.G. cylinders of Indane company and also
obtained licence from the Deputy Chief Controller of Explosive,
Explosive Department, Government of India, which was renewed
upto 31.3.2006 as would be evident from Annexeure-2 of this
petition. Such licence used to be issued to the licensee, distributing
L.P.G. cylinders under the Explosive Act but not under the
Explosive Substance Act and therefore, the prosecution of the
petitioners under Explosive Substance Act would amount to
miscarriage of justice when there is no allegation at all that they
had contravened any provision of Explosive Substance Act much
less causing explosion by using explosive substance. Entire
allegations are misconstrued and the evidence could not refer that
the petitioners had ever hands in selling the Indane L.P.G. cylinders
in black market.
I find substance in the argument advanced on behalf of the
petitioners that the prosecution failed to show and specify the
provisions of control order or the unification order allegedly
contravened by the petitioners so as to call for their punishment
under Section 7 of the Essential Commodities Act. It is settled law
that the accused would be highly prejudiced if the penal provision of
law for the offence alleged to have been committed by him could
not be disclosed at the time of taking cognizance. I find from the
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record that neither the informant nor the learned Chief Judicial
Magistrate has disclosed and specified such provision of law as
framed under Section 3 of the Essential Commodities Act, allegedly
contravened by the petitioners so as to call for punishment under
Section 7 of the Essential Commodities Act. Similarly, from the
facts and circumstances, I find that the petitioners have not violated
any provision of the Explosive Substance Act much less offence
alleged under Sections 3/4 of the said Act and therefore, the
cognizance of the offence taken in those sections referred to
hereinbefore is not relevant against any of the petitioners.
Consequently, I observe that their criminal prosecution would be a
clear manifestation of miscarriage of justice.
I find merit in this petition. Accordingly, cognizance order
impugned dated 6.11.2006, recorded in Sahibganj (T) P.S. Case
No.178 of 2005, corresponding to G.R. No.401 of 2005 against the
petitioners for the alleged offence under Section 7 of the Essential
Commodities Act, 1955 as also under Sections 3/4 of the Explosive
Substance Act is quashed and this petition is allowed.
(D.K. Sinha, J.)
S.B.