Considering the aforesaid rival submissions and having regard to the facts and circumstances of the present case, it appears that the learned court below without proper consideration of the notification dated 7.4.1999, which was placed on record by the petitioner along with his Bail application, passed an order taking cognizance against the petitioner. In view of the notification issued by the Government of India, decided to abolish all stock limits on wheat and wheat-products with immediate effect in view of the over all food situation and also the major storage constraints, the respective State Governments were also asked to issue necessary instructions in this regard and accordingly, the State of Jharkhand has also issued the necessary instructions. It appears that the said facts were not properly brought to the notice of the learned court below, and therefore, the learned court below had no opportunity to considered such development which has taken place by virtue of the notification issued by the Government of India.
It further appears that in similar set of facts, this Court observed, in its judgment and order, rendered in case of Bholi Kumar Bhojgariya Versus State of Jharkhand & Anr., reported in 2011 (2) Eastern Criminal Cases 601 (supra), by referring the Central Government notification and also considering the fact that there is no violation of any Control Order so as to attract the offence punishable under Section 7 of the Essential Commodities Act. Paragraph No.6 of the above referred judgment appears to be relevant for the purpose of deciding the present case and, therefore, the same is reproduced hereinbelow :
"6. Learned A.P.P appearing for the State did not dispute the legal position. The learned A.P.P failed to point out as to which provision of law much less the orders/ unification order has been contravened by the petitioner so as to attract the offence under Section 7 of the E.C. Act. Admittedly, the stock limit distribution and transportation on the rice and wheat have been abolished by the notification of the Central Government which has been adopted by Government of Jharkhand vide letter dated 24.04.2002. There appears substance in the argument that the prosecution has raised only suspicion that the food-grains seized from the truck and the godown of the petitioner belonged to the Food Corporation of India, without any evidence whatsoever and seized articles have been released in favour of the petitioner under the orders of this Court referred to here-in-before. In the facts and circumstances, the prosecution of the petitioner is bad in law. Accordingly, the entire prosecution of the petitioner including the order taking cognizance dated 07.08.2007 against the petitioner in Barhi P.S.Case No.63 of 2007 corresponding to G.R. No.865 of 2007 is quashed and this petition is allowed."
In view of the facts and circumstances of the present case as also in view of the above referred decision, the order taking cognizance against the petitioner dated 12.11.2001 in connection with G.R. Case No.1650 of 2001, issued by the learned Sub Divisional Judicial Magistrate, Jamshedpur, is, hereby, ordered to be quashed.
Jharkhand High Court
Md. Jasim vs State Of Jharkhand on 9 October, 2014
Citation; 2015 (3) Crimes 704 Jhar
The present application is filed under Section 482 of the Code of Criminal Procedure inter-alia praying for quashing of the order dated 12.11.2001 passed by the learned Sub-Divisional Judicial Magistrate, Jamshedpur, in connection with G.R. Case No.1650 of 2001, whereby cognizance has been taken under Section 7 of the Essential Commodities Act.
The brief facts of the present case, are as under :
The prosecution story, as alleged in the First Information Report, is that on 17.8.2001 at about 8.45 a.m when the informant along with other persons went to the house of Alimuddin and found stock of wheat in a room. In course of search, 127 bags of wheat were found from the said room. In course of enquiry, the owner of the house, Md. Alimuddin disclosed that the petitioner is his tenant who might have stocked the wheat. Accordingly, the informant suspected that the petitioner, who is running fair price shop may be indulged in black-marketing of wheat.
After the investigation, on 3.10.2001, the police submitted the charge-sheet under Section 7 of the Essential Commodities Act and on the basis of the said charge-sheet, by order dated 12.11.2001, the Sub Divisional Judicial Magistrate took cognizance of the offence punishable under Section 7 of the Essential Commodities Act.
Learned counsel for the petitioner has submitted that the impugned order of cognizance is vitiated on account of lack of jurisdiction as the period of vaildity of the notification having been expired and the said limit has not been extended by the State of Jharkhand. It is also submitted that though the notification issued by the Government of India, which was published in Official Gazette dated 7.4.1999, was placed on record before the learned court below along with the Bail application vide Annexure-1, but the same was not properly considered by the learned court below at the time of taking cognizance against the petitioner. It is also submitted that in view of the said notification, the Government of India has decided to abolish all stock limits on wheat and wheat-products in view of the over all food situation and also the major storage constraints being faced all over the country, the respective State Governments were also directed to take steps in accordance with the said Official Gazette Notification. It is also submitted that the State of Jharkhand has subsequently issued the notification in this regard. The learned counsel for the petitioner has also referred to and relied upon the decision given in case of Bholi Kumar Bhojgariya Versus State of Jharkhand & Anr., reported in 2011 (2) Eastern Criminal Cases 601 and has submitted that in similar set of facts, this Court was pleased to quash and set aside the order taking cognizance against the petitioner of that case. It is further submitted that the said decision is applicable to the facts of the present case.
Learned A.P.P appearing on behalf of the State opposed the application and has submitted that the learned court below has rightly and properly taken cognizance as from the materials of the charge-sheet and the case diary, prima facie case was made out against the accused, and therefore, there is no illegality in the order passed by the learned court below, however, the learned A.P.P has not disputed the fact regarding notification issued by Government of India dated 7.4.1999 which is part of the record and proceedings of the learned court below and also the decision rendered by this Court which is reported in 2011 (2) Eastern Criminal Cases 601 (supra).
Considering the aforesaid rival submissions and having regard to the facts and circumstances of the present case, it appears that the learned court below without proper consideration of the notification dated 7.4.1999, which was placed on record by the petitioner along with his Bail application, passed an order taking cognizance against the petitioner. In view of the notification issued by the Government of India, decided to abolish all stock limits on wheat and wheat-products with immediate effect in view of the over all food situation and also the major storage constraints, the respective State Governments were also asked to issue necessary instructions in this regard and accordingly, the State of Jharkhand has also issued the necessary instructions. It appears that the said facts were not properly brought to the notice of the learned court below, and therefore, the learned court below had no opportunity to considered such development which has taken place by virtue of the notification issued by the Government of India.
It further appears that in similar set of facts, this Court observed, in its judgment and order, rendered in case of Bholi Kumar Bhojgariya Versus State of Jharkhand & Anr., reported in 2011 (2) Eastern Criminal Cases 601 (supra), by referring the Central Government notification and also considering the fact that there is no violation of any Control Order so as to attract the offence punishable under Section 7 of the Essential Commodities Act. Paragraph No.6 of the above referred judgment appears to be relevant for the purpose of deciding the present case and, therefore, the same is reproduced hereinbelow :
"6. Learned A.P.P appearing for the State did not dispute the legal position. The learned A.P.P failed to point out as to which provision of law much less the orders/ unification order has been contravened by the petitioner so as to attract the offence under Section 7 of the E.C. Act. Admittedly, the stock limit distribution and transportation on the rice and wheat have been abolished by the notification of the Central Government which has been adopted by Government of Jharkhand vide letter dated 24.04.2002. There appears substance in the argument that the prosecution has raised only suspicion that the food-grains seized from the truck and the godown of the petitioner belonged to the Food Corporation of India, without any evidence whatsoever and seized articles have been released in favour of the petitioner under the orders of this Court referred to here-in-before. In the facts and circumstances, the prosecution of the petitioner is bad in law. Accordingly, the entire prosecution of the petitioner including the order taking cognizance dated 07.08.2007 against the petitioner in Barhi P.S.Case No.63 of 2007 corresponding to G.R. No.865 of 2007 is quashed and this petition is allowed."
In view of the facts and circumstances of the present case as also in view of the above referred decision, the order taking cognizance against the petitioner dated 12.11.2001 in connection with G.R. Case No.1650 of 2001, issued by the learned Sub Divisional Judicial Magistrate, Jamshedpur, is, hereby, ordered to be quashed. Consequently, the Cr. Misc. Petition is allowed accordingly.
(P.P. BHATT, J.) SI/
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