Sanjaya Kumar Sahoo and Another vs State of Orissa

P.K.Mohanty, J.—No one appears for the Petitioners when the matter is called. On perusal of the petition, impugned order and connected papers, it transpires that the Petitioners have prayed for quashing the charge-sheet No. 49 dated 7.10.1996 filed under Sections 7 and 9 of the Essential Commodities Act, registered as P.R. No. 4/98 in the Court of the learned Special Judge, Bhubaneswar. The Petitioner No. 2 is the retail dealer under the Public Distribution Scheme for Chandra Sekharpur area, Bhubaneswar in the district of Khurda and carries on business in the name and style "M/s. Shakti Store" bearing shop No. A-14, Housing Board Market Complex, Chandra Sekharpur, Bhubaneswar in the district of Khurda. Petitioner No. 1 is the nephew of Petitioner No. 2 and he having been authorised, was looking after and dealing with the business and was managing its affairs.

The prosecution case in brief is that on getting information that the Petitioners are doing clandestine business of the essential commodities, a surprise check was conducted in their business premises on 26.6.1996 at 9.30 A.M. by the Vigilance Squad with the assistance of one P.C. Tripathy, Marketing Inspector, C.S.O. Office, Bhubaneswar. On physical weighment of essential commodities; like sugar, wheat, kerosene oil, palmolive oil in presence of witnesses, it was found that there was shortage of some articles and excess in respect of others and the physical stock did not tally with the stock register. Physical stock verification report was prepared but the authorized dealer could not satisfactorily account for such excess and shortages of the essential commodities. It was also found that the retailer lifted Atta weighing qls. 144.90 kgs. On 23.1.1996 and had sold it in black market. The commodities were seized, seizure list was prepared and the stock was kept in zima of the retailer. The Inspector, Vigilance having found materials against both the accused persons for violation of Clauses 6 and 14 of the Orissa Wheat and Wheat Product Control Order, 1988 Clauses 3 and 6A of Orissa Sugar Dealers Licensing Order, 1963; Clause 4 of Kerosene (Fixation of Ceiling Prices) Order, 1970 and Clause 3 of Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 and liable to be prosecuted under Sections 7 and 9 of the Essential Commodities Act, filed the Prosecution Report.

Learned Special Judge, Bhubaneswar has taken cognizance of the offence and directed issuance of N.B. Ws. as against the accused-Petitioners. It further appears that on 31.3.1999 an application u/s 205, Code of Criminal Procedure was filed on behalf of the accused-Petitioners to dispense with their personal attendance, but by order dated 2.4.1999, the learned Special Judge rejected the application filed u/s 205, Code of Criminal Procedure

The main ground on which the Petitioners have assailed this order is that in view of the fact that in the confiscation proceeding u/s 6-A of the Essential Commodities Act, the Collector having found in respect of certain articles that the discrepancy is negligible and within the permissible limits and as such those articles were directed to be released and therefore it is urged that the prosecution with regard to such materials like wheat and kerosene oil, cannot proceed legally. It has also been stated that the raids conducted on 20.6.1996 were illegal and without jurisdiction and as such the FIR lodged and consequent order of cognizance, are non est in the eye of law. It appears to be the contention of the Petitioners that the minor shortages were unintentional inasmuch as it was because, some of the consumers who had already made purchases, left the shop without lifting and or taking such articles.

A reading of the final form u/s 173, Code of Criminal Procedure prima facie indicates, which is not denied in the present application that some food articles like Atta, sugar and kerosene were in shortage and the stock position as reflected in the stock register did not tally with the actual physical stock position and, therefore, it cannot be said that either the FIR or the materials, prima facie did not disclose commission of any offence punishable under the Essential Commodities Act and for which this Court should exercise its inherent jurisdiction in quashing the proceeding.

The law is well settled that the High Court at the initial stage of a criminal proceeding at the stage of cognizance, can only interfere in the matter if a bare reading of the FIR or the complaint petition alongwith the statements or the materials, if any, does not make out a case or does not make out an offence. In other words, if a perusal of the FIR or the complaint petition along with the statements prima facie make out an offence as alleged, the High Court in exercise of its power u/s 482, Code of Criminal Procedure would not be justified in interfering with such order. The contention as raised in the petition that the Collector, Khurda having found some marginal shortage and on that basis having directed release of some of the seized articles like wheat and kerosene oil on the self-same allegation, the prosecution should not be allowed to be continued. It appears from the certified copy of the order of the Collector that the Collector also found shortages in respect of wheat and kerosene oil, but in the opinion of the District Magistrate, the discrepancy was small, he did not like to order confiscation of these articles. Such order cannot be the basis or foundation for quashing the criminal proceedings for violation of the Control Orders and the offences under the Essential Commodities Act.

In any view of the matter, I do not find any cogent ground to interfere in the order of cognizance and quash the proceedings initiated against the Petitioner and as such, this petition u/s 482, Code of Criminal Procedure is dismissed being devoid of any merit. Let the Special Judge proceed with the case expeditiously and conclude the trial at an early date.