CRIMINAL MISCELLANIOUS NO.26400 OF 2006
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(In the matter of an application under
Section 482 of the Code of Criminal
Procedure )
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MANAGER SAH, SON OF SHRI BHUWALU SAH, RESIDENT OF VILLAGE
RAMGARH, POLICE STATION RAMGARH, DISTRICT KAIMUR (BHABHUA)
..................................................................................................PETITIONER
VERSUS
1. THE STATE OF BIHAR ...................................................OPPOSITE PARTY
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FOR THE PETITIONER :- MR. N. K. AGARWAL, SR. ADVOCATE
MR. D. N. TIWARY, ADVOCATE
MR. K. C. K. SINHA, ADVOCATE
FOR THE STATE :- MR. AMARENDRA PRASAD, A.P.P.
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PRESENT
HON'BLE JUSTICE SMT. SHEEMA ALI KHAN
ORDER
Sheema Ali Khan, J. On 24.03.2003, a tempo was intercepted carrying
kerosene oil. The Tempo driver disclosed that he had
loaded the kerosene Oil from the shop of the petitioner. It
is submitted on behalf of the petitioner that during
investigation, charge sheet was submitted against the
petitioner as well as one Pyare Lal Sah. Pyare Lal Sah was
made accused in this case on the basis of the fact that
investigation disclosed that the Kerosene Oil belong to him.
Counsel for the petitioner has raised two issues.
It is firstly submitted that the petitioner could not be
prosecuted under Section 31 (1) (c) of the Bihar Trade
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Articles (Licensing Unification) Orders, 1984 as it excludes
the applicability of the offences to a Public Distribution
System Dealer appointed by the State of Bihar for having
in their possession the articles covered under the Control
Order of 1984. The Central Government framed the Public
Distribution Control Order, 2001 under the Essential
Commodities Act. The State Government was required to
issue necessary notification for implementation thereof in
accordance with law. Such notification was admittedly
issued on 15.02.2007. Clause 17 of this notification states
that all prosecution initiated prior to 15.02.2007 shall
continue to be governed in accordance with law at the time
when the occurrence took place. Therefore, the petitioner
would be protected under the Control Order of 1984.
Besides the technical point aforesaid, the second
aspect of the matter is that the license of Pyare Lal Sah
was cancelled, the petitioner continues to be a licensee
under the Public Distribution System. It is further
submitted that there is no material to indicate that the
kerosene Oil loaded on the tempo was being carried for the
purposes of being sold in the black market.
Be that as it may, considering that the petitioner
could not be prosecuted under the Bihar Trade Articles
(Licensing Unification) Order, 1984, I quash the order
dated 19.05.2003 passed by the Sub Divisional Judicial
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Magistrate, Kaimur at Bhabhua under Section 7 of the
Essential Commodities Act in Mohania Police Station Case
No. 57 of 2003 (Trial No. 1344 of 2003).
In the result, this application is allowed.
( Sheema Ali Khan, J. )
PATNA HIGH COURT
DATED, THE 25TH MARCH, 2011
N.A.F.R./ANAND