In the matter of an application under Section 482 of the Code of
Criminal Procedure
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CRIMINAL MISCELLANIOUS No.1341 OF 1998
Manoj Kumar Agrawal, Son of Dr. K.D.N. Agrawal,
resident of Begusarai Town, P.S. & District-Begusarai
——————-Petitioner
Versus
THE STATE OF BIHAR
WITH
CRIMINAL MISCELLANIOUS No.1393 of 1998
Ashok Tulsiyan @ Ashok Kumar Tulsiyan, Son of Sitaram
Tulsiyan, resident of Mohalla-Jagir Town, P.S. Town and
District-Begusarai —————– Petitioner
Versus
THE STATE OF BIHAR
————-
For the Petitioners: S/Sri N.K.Agrawal, Sr. Advocate
D.N.Tiwari, Advocate
For the State: Smt. Indu Bala Pandey, A.P.P.
————
PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. In both the cases almost same point is involved and, as such,
both the petitions were heard together and are being disposed of by a
common Judgment.
2. In Cr.Misc.No.1341 of 1998 the petitioner, who was the
proprietor of M/S Premier Paraffin , a registered factory , has prayed
for quashing of an order dated 2.12.1997 passed by the learned 1st
Additional Sessions Judge, Begusarai in Begusarai P.S. Case No.301
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of 1995. By the said order, the learned Addl. Sessions Judge has
explained accusation against the petitioner for the offence under
Section 7 of the E.C. Act, read with Paraffin Wax ( Supply,
Distribution and Price Fixation ) Order and under Section 414 of the
Indian Penal Code and fixed the case for evidence.
3. In Cr.Misc.No.1393, the petitioner who was the proprietor
of Shri Ram Industries, has prayed for quashing of an order dated
12.7.1997 passed by the learned Special Judge, E.C.Act, Begusarai in
Begusarai P.S. Case No.300 of 1995. By the said order, the learned
Special Judge has taken cognizance of offence under Section 7 of the
E.C.Act read with Paraffin Wax (Supply, Distribution and Price
Fixation) Order and Section 414 of the Indian Penal Code.
4. Short fact of the case is that on 14.10.1995 , an inspection
was made by a team lead by the Sub-Inspector of Police in the factory
premises of both the petitioners, resulting in seizure of huge quantity
of slace wax and paraffin wax. On the basis of search and seizure of
huge quantity of slace wax and paraffin wax, on the same date, F.I.Rs
were registered for the offence under Section 414 of the Indian Penal
Code. It was alleged by the informant that at the time of search ,
neither any document/Register regarding said wax was produced nor
at the time of search either of the petitioners arrived there to explain
about the seized articles. In both the premises on search after finding
huge quantity of wax without any document said wax were seized and
thereafter F.I.R. vide Begusarai P.S. Case No.301 of 1998 and
Begusarai P.S. Case No.300 of 1998 respectively for the offence
under Section 414 were registered. After investigation, the police
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submitted chargesheet for the offence under Section 7 of the E.C. Act
and Section 414 of the Indian Penal Code. Since in both the aforesaid
cases , separate F.I.Rs were registered , investigation was conducted
separately and separate chargesheet were submitted and, as such, the
Court is not proposing to give details and dates regarding the
chargesheet. After submission of chargesheet in Cr.Misc.No.1393 of
1993, learned Special Judge, E.C. Act vide its order dated 14.7.1997
took cognizance of offence under Section 7 of the E.C. Act , read with
Paraffin Wax ( Supply, Distribution and Fixation of Price) Order and
Section 414 of the Indian Penal Code and summoned the petitioners
for facing the trial.
5. Aggrieved with the order of cognizance, Ashok Tulsiyan
@ Ashok Kumar Tulsiyan in Cr.Misc.No. 1393 of 1998 approached
this Court by filing the present petition, which was admitted on
22.1.1998. While admitting, lower court record was called for and it
was directed that in the meantime, further proceedings in the court
below shall remain stayed.
6. In Cr.Misc.No.1341 of 1998, the petitioner Manoj Kumar
Agrawal has prayed for quashing of an order dated 2.12.1997,
whereby the learned 1st Addl. Sessions Judge, Begusarai has explained
the accusation under Section 7 of the E.C. Act, read with Paraffin Wax
(Supply, Distribution and Price Fixation) Order and Section 414 of the
Indian Penal Code and fixed the case for evidence. The petition
preferred by the petitioner was admitted on 22.1.1998. It was directed
to be heard along with Cr.Misc.No.1393 of 1998. In the meanwhile, it
was directed that further proceeding in the court below shall remain
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stayed and lower court record was also summoned.
7. In both the petitions, assailing the impugned orders /
criminal proceeding, several grounds have been raised. In both the
cases, petitioners have taken the stand that they were admittedly
Producers of Paraffin Wax and during investigation it was found that
wax, which were seized, were validly procured and documents in
respect thereof were also produced. The stock of slace wax was
purchased from the Indian Oil Corporation, Barauni on proper
invoices. In respect of the said purchase, the petitioners have taken the
stand that all those documents were produced during the investigation.
The petitioners being bona fide purchasers of slace wax from the
Indian Oil Corporation were running their factories as Small Scale
Industries Unit of the Department of Industries, Govt. of Bihar, and as
such, they were manufacturing Paraffin Wax. In both the cases,
common ground was taken that maliciously and arbitrarily during the
period of Dipawali, raids were conducted and without any case
registered in relation to theft of slace wax, a case for recovery of stolen
wax for the offence under Section 414 of the Indian Penal Code was
registered. However, during the investigation, when the Investigating
Officer failed to establish any case of recovery of stolen wax, at a
subsequent stage without showing violation of any provisions of
Paraffin Wax (Supply, Distribution and Fixation of Price) Order had
come out with a case of violation of Section 7 of the E.C. Act read
with Paraffin Wax (Supply, Distribution and Fixation of Price) Order.
It was emphatically argued that without establishing a case of theft,
there was no reason to institute a case under Section 414 of the Indian
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Penal Code, whereas the fact remains that the petitioners were running
a Small Scale Industries for preparing wax and they were purchasing
paraffin Slace wax from the Indian Oil Corporation. It was submitted
that without any case of theft, institution of case under Section 414 of
the Indian Penal Code was impermissible and on this ground alone,
the impugned orders are liable to be set aside. In support of his stand,
Sri N.K.Agrawal, learned Senior Counsel has heavily relied on a
Judgment reported in 1989 PLJR 901 ( Bishwanath Kedia Vs.State of
Bihar).
8. Sri N.K.Agrawal, learned Senior Counsel appearing on
behalf of the petitioners in both the case has further argued that
impugned orders in both the cases are also liable to be set aside on the
ground that in view of Section 12 (AA) of the E.C. Act , all the
offences are triable by way of summary trial. It was submitted that
since punishment for the offence under Section 414 of the Indian
Penal code is imprisonment, which may extend to three years, the
same offence cannot be tried summarily and, as such, the entire
criminal proceeding is liable to be set aside on account of the fact that
the case is being tried summarily, which is completely illegal and
contrary to the established law. Accordingly, it has been prayed that
both the petitions may be allowed after setting aside the impugned
orders as well as criminal proceeding in both the cases.
9. Smt. Indu Bala Pandey, learned Addl Public Prosecutor
has appeared on behalf of the State. She has strongly opposed the
prayer of the petitioners. It has been argued that huge quantity i.e. in
tons of wax was recovered in both the cases and while search was
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being conducted, no documents were produced on behalf of either of
petitioners. Moreover, it was submitted that the case was thoroughly
investigated and thereafter chargesheets were submitted.
10. Besides hearing learned counsel for the parties, I have
also perused the materials available on record including lower court
records, which were summoned at the time of admission of the petition
and in both the case lower court records are lying along with the
record of aforesaid petitions. This is not in dispute that either at the
time of registering F.I.R. or during the entire investigation, the
Investigating Agency has come out with a case that the recovered wax,
which were actually stored in both the premises, were stolen wax,
nothing has been brought on record that any case regarding
commission of offence under Section 379 of the Indian Penal Code
was ever instituted. Moreover, after going through the lower court
record I have noticed that while investigation was going on, petitions
were filed in both the cases before the court below for release of
seized wax. At the time of pressing the said petitions all relevant
documents were produced and thereafter, the learned Chief Judicial
Magistrate by detailed order had released the seized wax in favour of
the petitioners in both the cases. In case of Manoj Kumar Agrawal by
order dated 2.2.1996 wax were released in favour of petitioner Manoj
Kumar Agrawal . In paragraph-6 of order dated 2.2.1996 the learned
Chief Judicial Magistrate has noticed that the police has submitted
report on 3.1.1996 stating therein that no case has been instituted in
Begusarai Town Police Station regarding theft of wax prior to the
alleged occurrence. The learned Chief Judicial Magistrate by a
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detailed order allowed the petition filed by the petitioner Manoj
Kumar Agrawal for release of seized wax in his favour.
11. Similar order on 3.2.1996 in favour of petitioner Ashok
Tulsiyan, owner of Shri Ram Industries was passed. In the case of
Ashok Tulsiyan , in order dated 3.2.1996 the learned Chief Judicial
Magistrate has noticed that the police has reported that no case for
theft of wax has been registered at Begusarai Town Police Station
prior to the alleged occurrence . In that case also, the petitioner had
produced number of documents in support of genuine claim of storage
of the seized wax in his factory premises.
12. After going through the record, it further appears that
initially the case was registered on a presumption that stored wax in
both the factories were stolen wax and due to that reason F.I.R. was
registered only under Section 414 of the Indian Penal code and
investigation was kept pending for considerable long time and
thereafter without mentioning violation of any of the specific order,
chargesheet was submitted for the offence under Section 7 of the E.C.
Act and Section 414 of the Indian Penal code . Without going in detail,
the Court is in agreement with the submission of Sri N.K.Agrawal ,
learned Senior Counsel for the petitioners that without any case of
theft, the case under Section 414 of the Indian Penal code was not
required to be registered, which has got support from the case law,
reported in 1989 PLJR 901 ( Bishwanath Kedia Vs.State of Bihar).
The Court is of the opinion that aforesaid both the cases are covered
by the Bishwanath Kedia’s case ( Supra) and, as such, allowing further
proceeding in both the cases before the court below will amount to
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allowing the abuse of the process of the court and, as such, the order
dated 2.12.1997 passed in Begusarai P.S. Case No.301 of 1999 ( in
Cr.Misc.No.1341 of 1998) by learned Addl.Sessions Judge, Begusarai
and order dated 12.7.1997 passed by the learned Special Judge, E.C.
Act, Begusarai in Begusarai P.S. Case No.300 of 1995 (
Cr.Misc.No.1393 of 1998) are hereby set aside the both the petitions
are allowed. .
( Rakesh Kumar, J.)
Patna High Court, Patna
Dated : the 4th February,2011
Nawal Kishore Singh/ N.A.F.R.