In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.328 of 2009
With
W.P.(Cr.) No.344 of 2009
With
W.P.(Cr.) No.347 of 2009
Ganesh Prasad .......................Petitioner [in W.P(Cr.) No.328]
Jay Prakash Kumar................. Petitioner [in W.P(Cr.) No.344]
Balchand Sah...........................Petitioner [in W.P(Cr.) No.347]
VERSUS
State of Jharkhand and another............................... Respondents
CORAM:HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioner: Mr.Nilesh Kumar Agrawal
For the State : J.C to G.P.III
5. 9.12.09
As the aforesaid three applications have arisen out of same
Dhurwa P.S. case no.163 of 2009 and the issues are the same,
they were heard together and are being disposed of by this
common order.
In all the three applications, prayer has been made to quash
the first information report of Dhurwa P.S. case no.163 of 2009 and
also for direction to the respondents to release the articles seized
from the shops of each of the petitioner.
The facts giving rise these applications are that on
28.8.2009 when the shops of these petitioners were raided,
different commodities such as rice, pulses, flour, sugar, suji, maida
were found stored in the shops of the petitioners which, according
to prosecution, were excess than the stock limit fixed. At the same
time stock of those commodities had also not been displayed at the
display board outside of the shops. Accordingly, written report was
submitted to Dhurwa Police Station, upon which a case was lodged
as Dhurwa P.S. case no.163 of 2009 against all the three
petitioners under Section 7 of the Essential Commodities Act
(hereinafter referred to as ‘the Act’) for contravention, though it
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has not been said in the first information report, of the order issued
under Section 3 of the Act and also for contravention of the
provision of the Jharkhand Essential Commodities (Price and Stock
Display) Order, 1977.
Learned counsel appearing for the petitioners submits that
though on the allegations of non-display of the stock position
outside of the business premises, the petitioners have been
alleged to have contravened the provision of the Jharkhand
Essential Commodities (Price and Stock Display) Order but
admittedly, prosecution was launched without having sanction from
the competent authority and as such, prosecution under Section 7
of the Act for contravening the provision of the Essential
Commodities (Price and Stock Display) Order gets vitiated.
Learned counsel further submits that the Secretary,
Department of Food, Public Distribution and Consumer Affairs
purportedly in exercise of power under Section 3 of the Act issued
notification bearing no.1645 dated 12.8.2009 fixing the stock limit
with respect to rice, paddy, pulses, edible oil, sugar etc. but the
same was never published in the Gazette which formality was
required to be done mandatorily, in view of the provision as
contained in Clause 18 of the Unification Order and as such, the
said order is not workable in the eye of law.
Learned counsel further submits that the said notification is
also bad on account of the fact that under the Essential
Commodities Act, such notification is required to be issued by the
State Government with prior concurrence of the Central
Government but surprisingly, the said notification has been issued
by the Secretary of the Department that too without taking
concurrence of the Central Government.
3
Therefore, this Court in a case of Gopal Prasad Khetan
and another vs. State of Jharkhand and another [W.P(Cr.)
No.314 of 2009] has held that notification bearing no.1645
dated 12.8.2009 prescribing stock limit of the food grain never
seems to have been done in accordance with the provision of the
Unification Order and on that account, any prosecution on the
ground of having excess food grain/pulses and other materials than
the stock limit fixed would certainly be illegal. Similar is the case
here and hence, the first information report is fit to be quashed.
A counter affidavit has been filed wherein it has been stated
that all the petitioners had stored the commodities in excess than
the stock limit fixed under notification no.1645 dated 12.8.2009
and besides that, they had not displayed the stock position in the
display board outside of the business premises and as such, all the
petitioners are liable to be prosecuted under Section 7 of the Act
for contravening the provision of the order issued under Section 3
of the Act and also for contravening the provision of the Jharkhand
Essential Commodities (Price and Stock Display) Order, 1977.
Admittedly, the notification fixing stock limit of the
commodities has neither been published in the official Gazette nor
seems to have been issued by the State Government with prior
concurrence of the Central Government, rather the same has been
issued by the Secretary of the Department, who, under the Act, has
no authority to issue such notification. Thus, notification bearing
no.1645 dated 12.8.2009 never seems to have been issued in
accordance with the provision of the Unification Order and on that
account, any prosecution on the ground of having excess food
grain/pulses/other commodities than the stock limit fixed would
certainly be quite illegal.
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That apart, the prosecution under the Essential
Commodities Act for contravening the provision of the Jharkhand
Essential Commodities (Price and Stock Display) Order also seems
to be bad as no sanction for launching prosecution for
contravention of the said provision has been accorded by the
competent authority.
For the reasons discussed above, continuance of the criminal
proceeding against the petitioners would certainly amount to abuse
of the process of law and hence, the first information report of
Dhurwa P.S. case no.163 of 2009 is hereby quashed so far the
petitioners, namely, Ganesh Prasad, Jay Prakash Kumar and
Balchand Sah are concerned.
So far the matter relating to release of the commodities are
concerned, it does appear that the commodities which were seized
were directed to be released in favour of the petitioners on giving
undertaking in the terms as indicated under order dated 16.9.2009
but since the prosecution itself has been found to be illegal,
undertaking need not to be given effect to.
In the result, these applications are allowed.
( R. R. Prasad, J.)
ND/