Manager Sah vs The State of Bihar

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 u/s 31(1) (c) of the Bihar Trade 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 Magistrate, Kaimur at Bhabhua u/s 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.