{"id":75249,"date":"2011-02-04T00:00:00","date_gmt":"2011-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manoj-kumar-agrawal-vs-state-of-bihar-on-4-february-2011"},"modified":"2015-12-08T05:09:24","modified_gmt":"2015-12-07T23:39:24","slug":"manoj-kumar-agrawal-vs-state-of-bihar-on-4-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manoj-kumar-agrawal-vs-state-of-bihar-on-4-february-2011","title":{"rendered":"Manoj Kumar Agrawal vs State Of Bihar on 4 February, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Manoj Kumar Agrawal vs State Of Bihar on 4 February, 2011<\/div>\n
Author: Rakesh Kumar<\/div>\n
               In the matter of an application under Section 482 of the Code of\n               Criminal Procedure\n                                     ------------\n<\/pre>\n
                       CRIMINAL MISCELLANIOUS No.1341 OF 1998<\/p>\n
                   Manoj Kumar Agrawal, Son of Dr. K.D.N. Agrawal,
\n                   resident of Begusarai Town, P.S. & District-Begusarai\n<\/p>\n
                                                     ——————-Petitioner
\n                                           Versus
\n                                  THE STATE OF BIHAR<\/p>\n
                                              WITH<\/p>\n
                         CRIMINAL MISCELLANIOUS No.1393 of 1998<\/p>\n
                   Ashok Tulsiyan @ Ashok Kumar Tulsiyan, Son of Sitaram
\n                   Tulsiyan, resident of Mohalla-Jagir Town, P.S. Town and
\n                   District-Begusarai               —————– Petitioner<\/p>\n
                                             Versus<\/p>\n
                                   THE STATE OF BIHAR\n<\/p>\n
                                          ————-\n<\/p>\n
                   For the Petitioners: S\/Sri N.K.Agrawal, Sr. Advocate
\n                                               D.N.Tiwari, Advocate
\n                   For the State:       Smt. Indu Bala Pandey, A.P.P.\n<\/p>\n
                                              ————\n<\/p>\n
                                           PRESENT<\/p>\n
                        THE HON’BLE MR. JUSTICE RAKESH KUMAR<\/p>\n
Rakesh Kumar, J.                  In both the cases almost same point is involved and, as such,<\/p>\n
                        both the petitions were heard together and are being disposed of by a<\/p>\n
                        common Judgment.\n<\/p>\n
                                  2. In Cr.Misc.No.1341 of 1998 the petitioner, who was the<\/p>\n
                        proprietor of M\/S Premier Paraffin , a registered factory , has prayed<\/p>\n
                        for quashing of   an order dated 2.12.1997 passed by the learned 1st<\/p>\n
                        Additional Sessions Judge, Begusarai in Begusarai P.S. Case No.301
\n                    2<\/span><\/p>\n
of 1995. By the said order, the learned Addl. Sessions Judge has<\/p>\n
explained accusation against the petitioner for the offence under<\/p>\n
Section 7 of the E.C. Act, read with          Paraffin Wax ( Supply,<\/p>\n
Distribution and Price Fixation ) Order   and under Section 414 of the<\/p>\n
Indian Penal Code and fixed the case for evidence.<\/p>\n
          3. In Cr.Misc.No.1393, the petitioner who was the proprietor<\/p>\n
of Shri Ram Industries, has prayed for quashing of an order dated<\/p>\n
12.7.1997 passed by the learned Special Judge, E.C.Act, Begusarai in<\/p>\n
Begusarai P.S. Case No.300 of 1995. By the said order, the learned<\/p>\n
Special Judge has taken cognizance of offence under Section 7 of the<\/p>\n
E.C.Act read with Paraffin Wax (Supply, Distribution and Price<\/p>\n
Fixation) Order and Section 414 of the Indian Penal Code.<\/p>\n
          4. Short fact of the case is that on 14.10.1995 , an inspection<\/p>\n
was made by a team lead by the Sub-Inspector of Police in the factory<\/p>\n
premises of both the petitioners, resulting in seizure of huge quantity<\/p>\n
of slace wax and paraffin wax. On the basis of search and seizure of<\/p>\n
huge quantity of slace wax and paraffin wax, on the same date, F.I.Rs<\/p>\n
were registered for the offence under Section 414 of the Indian Penal<\/p>\n
Code. It was alleged by the informant that at the time of search ,<\/p>\n
neither any document\/Register regarding said wax was produced nor<\/p>\n
at the time of search either of the petitioners arrived there to explain<\/p>\n
about the seized articles. In both the premises on search after finding<\/p>\n
huge quantity of wax without any document said wax were seized and<\/p>\n
thereafter F.I.R. vide Begusarai P.S. Case No.301 of 1998 and<\/p>\n
Begusarai P.S. Case No.300 of 1998 respectively for the offence<\/p>\n
under Section 414 were registered. After investigation, the police
\n                         3<\/span><\/p>\n
submitted chargesheet for the offence under Section 7 of the E.C. Act<\/p>\n
and Section 414 of the Indian Penal Code. Since in both the aforesaid<\/p>\n
cases , separate F.I.Rs were registered , investigation was conducted<\/p>\n
separately and separate chargesheet were submitted and, as such, the<\/p>\n
Court is not proposing to give details and dates regarding the<\/p>\n
chargesheet. After submission of chargesheet in Cr.Misc.No.1393 of<\/p>\n
1993, learned Special Judge, E.C. Act vide its order dated 14.7.1997<\/p>\n
took cognizance of offence under Section 7 of the E.C. Act , read with<\/p>\n
Paraffin Wax ( Supply, Distribution and Fixation of Price) Order and<\/p>\n
Section 414 of the Indian Penal Code and summoned the petitioners<\/p>\n
for facing the trial.\n<\/p>\n
           5. Aggrieved with the order of cognizance, Ashok Tulsiyan<\/p>\n
@ Ashok Kumar Tulsiyan in Cr.Misc.No. 1393 of 1998 approached<\/p>\n
this Court by filing the present petition, which was admitted on<\/p>\n
22.1.1998. While admitting, lower court record was called for and it<\/p>\n
was directed that in the meantime, further proceedings in the court<\/p>\n
below shall remain stayed.\n<\/p>\n
           6. In Cr.Misc.No.1341 of 1998, the petitioner Manoj Kumar<\/p>\n
Agrawal has prayed for quashing of an order dated 2.12.1997,<\/p>\n
whereby the learned 1st Addl. Sessions Judge, Begusarai has explained<\/p>\n
the accusation under Section 7 of the E.C. Act, read with Paraffin Wax<\/p>\n
(Supply, Distribution and Price Fixation) Order and Section 414 of the<\/p>\n
Indian Penal Code and fixed the case for evidence. The petition<\/p>\n
preferred by the petitioner was admitted on 22.1.1998. It was directed<\/p>\n
to be heard along with Cr.Misc.No.1393 of 1998. In the meanwhile, it<\/p>\n
was directed that further proceeding in the court below shall remain
\n                     4<\/span><\/p>\n
stayed and lower court record was also summoned.<\/p>\n
          7. In both the petitions, assailing the impugned orders \/<\/p>\n
criminal proceeding, several grounds have been raised. In both the<\/p>\n
cases, petitioners have taken the stand that they were admittedly<\/p>\n
Producers of Paraffin Wax and during investigation it was found that<\/p>\n
wax, which were seized, were validly procured and documents in<\/p>\n
respect thereof were also produced. The         stock of slace wax was<\/p>\n
purchased from the Indian Oil Corporation, Barauni on proper<\/p>\n
invoices. In respect of the said purchase, the petitioners have taken the<\/p>\n
stand that all those documents were produced during the investigation.<\/p>\n
The petitioners being bona fide purchasers of slace wax from the<\/p>\n
Indian Oil Corporation were running their factories as Small Scale<\/p>\n
Industries Unit of the Department of Industries, Govt. of Bihar, and as<\/p>\n
such, they were manufacturing Paraffin Wax. In both the cases,<\/p>\n
common ground was taken that maliciously and arbitrarily during the<\/p>\n
period of Dipawali, raids were conducted and without any case<\/p>\n
registered in relation to theft of slace wax, a case for recovery of stolen<\/p>\n
wax for the offence under Section 414 of the Indian Penal Code was<\/p>\n
registered. However, during the investigation, when the Investigating<\/p>\n
Officer failed to establish any case of recovery of stolen wax, at a<\/p>\n
subsequent stage without showing violation of any provisions of<\/p>\n
Paraffin Wax (Supply, Distribution and Fixation of Price) Order had<\/p>\n
come out with a case of violation of Section 7 of the E.C. Act read<\/p>\n
with Paraffin Wax (Supply, Distribution and Fixation of Price) Order.<\/p>\n
It was emphatically argued that without establishing a case of theft,<\/p>\n
there was no reason to institute a case under Section 414 of the Indian
\n                    5<\/span><\/p>\n
Penal Code, whereas the fact remains that the petitioners were running<\/p>\n
a Small Scale Industries for preparing wax and they were purchasing<\/p>\n
paraffin Slace wax from the Indian Oil Corporation. It was submitted<\/p>\n
that without any case of theft, institution of case under Section 414 of<\/p>\n
the Indian Penal Code was impermissible and on this ground alone,<\/p>\n
the impugned orders are liable to be set aside. In support of his stand,<\/p>\n
Sri N.K.Agrawal, learned Senior Counsel has heavily relied on a<\/p>\n
Judgment reported in 1989 PLJR 901 ( Bishwanath Kedia Vs.State of<\/p>\n
Bihar).\n<\/p>\n
          8. Sri N.K.Agrawal, learned Senior Counsel appearing on<\/p>\n
behalf of the petitioners in both the case has further argued that<\/p>\n
impugned orders in both the cases are also liable to be set aside on the<\/p>\n
ground that in view of Section 12 (AA) of the E.C. Act , all the<\/p>\n
offences are triable by way of summary trial. It was submitted that<\/p>\n
since punishment for the offence under Section 414 of the Indian<\/p>\n
Penal code is imprisonment, which may extend to three years, the<\/p>\n
same offence cannot be tried summarily and, as such, the entire<\/p>\n
criminal proceeding is liable to be set aside on account of the fact that<\/p>\n
the case is being tried summarily, which is completely illegal and<\/p>\n
contrary to the established law. Accordingly, it has been prayed that<\/p>\n
both the petitions may be allowed after setting aside the impugned<\/p>\n
orders as well as criminal proceeding in both the cases.<\/p>\n
          9. Smt. Indu Bala Pandey, learned Addl Public Prosecutor<\/p>\n
has appeared on behalf of the State. She has strongly opposed the<\/p>\n
prayer of the petitioners. It has been argued that huge quantity i.e. in<\/p>\n
tons of wax was recovered in both the cases and while search was
\n                    6<\/span><\/p>\n
being conducted, no documents were produced on behalf of either of<\/p>\n
petitioners. Moreover, it was submitted that the case was thoroughly<\/p>\n
investigated and thereafter chargesheets were submitted.<\/p>\n
          10. Besides hearing learned counsel for the parties, I have<\/p>\n
also perused the materials available on record including lower court<\/p>\n
records, which were summoned at the time of admission of the petition<\/p>\n
and in both the case lower court records are lying along with the<\/p>\n
record of aforesaid petitions. This is not in dispute that either at the<\/p>\n
time of registering F.I.R. or during the entire investigation, the<\/p>\n
Investigating Agency has come out with a case that the recovered wax,<\/p>\n
which were actually stored in both the premises, were stolen wax,<\/p>\n
nothing has been brought on record that any case regarding<\/p>\n
commission of offence under Section 379 of the Indian Penal Code<\/p>\n
was ever instituted. Moreover, after going through the lower court<\/p>\n
record I have noticed that while investigation was going on, petitions<\/p>\n
were filed in both the cases before the court below for release of<\/p>\n
seized wax. At the time of pressing the said petitions all relevant<\/p>\n
documents were produced and thereafter, the learned Chief Judicial<\/p>\n
Magistrate by detailed order had released the seized wax in favour of<\/p>\n
the petitioners in both the cases. In case of Manoj Kumar Agrawal by<\/p>\n
order dated 2.2.1996 wax were released in favour of petitioner Manoj<\/p>\n
Kumar Agrawal . In paragraph-6 of order dated 2.2.1996 the learned<\/p>\n
Chief Judicial Magistrate has noticed that the police has submitted<\/p>\n
report on 3.1.1996 stating therein that no case has been instituted in<\/p>\n
Begusarai Town Police Station regarding theft of wax prior to the<\/p>\n
alleged occurrence. The learned Chief Judicial Magistrate by a
\n                    7<\/span><\/p>\n
detailed order allowed the petition filed by the petitioner Manoj<\/p>\n
Kumar Agrawal for release of seized wax in his favour.<\/p>\n
          11. Similar order on 3.2.1996 in favour of petitioner Ashok<\/p>\n
Tulsiyan, owner of Shri Ram Industries was passed. In the case of<\/p>\n
Ashok Tulsiyan , in order dated 3.2.1996 the learned Chief Judicial<\/p>\n
Magistrate has noticed that the police has reported that no case for<\/p>\n
theft of wax has been registered at Begusarai Town Police Station<\/p>\n
prior to the alleged occurrence . In that case also, the petitioner had<\/p>\n
produced number of documents in support of genuine claim of storage<\/p>\n
of the seized wax in his factory premises.\n<\/p>\n
          12. After going through the record, it further appears that<\/p>\n
initially the case was registered on a presumption that stored wax in<\/p>\n
both the factories were stolen wax and due to that reason F.I.R. was<\/p>\n
registered only under Section 414 of the Indian Penal code and<\/p>\n
investigation was kept pending for considerable long time and<\/p>\n
thereafter without mentioning violation of any of the specific order,<\/p>\n
chargesheet was submitted for the offence under Section 7 of the E.C.<\/p>\n
Act and Section 414 of the Indian Penal code . Without going in detail,<\/p>\n
the Court is in agreement with the submission of Sri N.K.Agrawal ,<\/p>\n
learned Senior Counsel for the petitioners that without any case of<\/p>\n
theft, the case under Section 414 of the Indian Penal code was not<\/p>\n
required to be registered, which has got support from the case law,<\/p>\n
reported in 1989 PLJR 901 ( Bishwanath Kedia Vs.State of Bihar).<\/p>\n
The Court is of the opinion that aforesaid both the cases are covered<\/p>\n
by the Bishwanath Kedia’s case ( Supra) and, as such, allowing further<\/p>\n
proceeding in both the cases before the court below will amount to
\n                                          8<\/span><\/p>\n
                       allowing the abuse of the process of the court and, as such, the order<\/p>\n
                       dated 2.12.1997 passed in Begusarai P.S. Case No.301 of 1999 ( in<\/p>\n
                       Cr.Misc.No.1341 of 1998) by learned Addl.Sessions Judge, Begusarai<\/p>\n
                       and order dated 12.7.1997 passed by the learned Special Judge, E.C.<\/p>\n
                       Act, Begusarai in Begusarai P.S. Case No.300 of 1995 (<\/p>\n
                       Cr.Misc.No.1393 of 1998) are hereby set aside the both the petitions<\/p>\n
                       are allowed. .\n<\/p>\n<\/p>\n
                                                      ( Rakesh Kumar, J.)
\nPatna High Court, Patna
\nDated : the 4th February,2011
\nNawal Kishore Singh\/ N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Manoj Kumar Agrawal vs State Of Bihar on 4 February, 2011 Author: Rakesh Kumar In the matter of an application under Section 482 of the Code of Criminal Procedure ———— 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-75249","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nManoj Kumar Agrawal vs State Of Bihar on 4 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manoj-kumar-agrawal-vs-state-of-bihar-on-4-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manoj Kumar Agrawal vs State Of Bihar on 4 February, 2011 - 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