Sitaram Kedia vs The State of Bihar

Ramchandra Pd. Sinha, J.—This application intersection 432 of the Code of Criminal Procedure has been filed by the accused petitioner for quashing; the prosecution of the petitioner pending in the court of Sub-Divisional Judicial Magistrate, Sitamarhi, East in G.R., case No. 120 of 1930 for the offence u/s 7 of the Essential Commodities Act (hereinafter to be referred as the ''Act''). The prosecution case is that on 14th of March 1980, the godown of the petitioner was raided. Since the house was locked and nobody appeared before the authorities conducting the raid, the same was sealed. On the 15th of March. 1980, the seal was broken and it was found that 70 qtls of medium class of rice in 70 bags were kept there. The allegation against the petitioner was that the storage was without any license and that no declaration as required under the Bihar Food grains (Declaration of Stock by Cultivators) Order, 1967, was made.

A written report incorporating the aforesaid facts was made by the Supply Inspector, Pupur Bazar, P.S. Pupur, District Sitamarhi, to the Officer-in-charge of the said Police Station on which a first information was drawn and a case was registered for the offence u/s 7 of the Act.

On completing investigation, the charge sheet was submitted. The petitioner had also filed a petition on 19.9.1980 before the Sub-divisional Judicial Magistrate, Sitamarhi East to the effect that no cognizance should be taken in the case as no offence is made out against the petitioner. The learned Sub-divisional Judicial Magistrate after hearing the parties took cognizance of the offence u/s 7 of the Act for violating the provisions of the Bihar Food grains Dealer''s Licensing Order, 1967 (hereinafter to be referred as the ''Order'') and rejected the petition filed by the petitioner by his order dated 20th of February, 1981.

By filing this application u/s 432 of the Code of Criminal Procedure, the petitioner has challenged the order of taking cognizance and his prosecution. It has been contended by Mr. Nawal Kishore Agrawal, learned counsel appearing on behalf of the petitioner that the petitioner has not violated any provisions of the Order. There is no allegation or materials to hold that the petitioner was dealer in food grains. The only allegation is that 70 qtls of rice were found in the house of the petitioner. On the aforesaid allegation and the materials found during investigation, it cannot be said that the petitioner was dealer in food grains and as such there is no question of violating the provisions of the Order in this case. Clause 3 of the Order prohibits to carry on business as a wholesale dealer or retail dealer except under and in accordance with the terms and conditions of a license issued in this behalf by the licensing authority. Sub-clause (2) of clause 3 of the Order further says that if any body other than a bonafide consumer or an agriculturist is found to have stored one or more food grains in any quantity exceeding ten quintals or more at any time it will be deemed that the storage was for the purpose of sale. It can be said in this case as the petitioner was found to have 70 qtls, it would be deemed that he stored the same for the purpose of sale. The said sub-clause does not say that if any body is found to have stored food grains exceeding ten quintals, it would be deemed that he was carrying on business in food grains. The said sub-clause merely that such storage would be deemed to have been stored for the purpose of sale. Mere storage of food grains exceeding ten quintals does not make a person to be a dealer as defined in sub-clause (b) and (d) of clause 2 of the said Order.

For this purpose, the learned counsel appearing on behalf of the petitioner has relied upon a case of Dhamru Sah Vrs the State of Bihar in Criminal Misc. No. 3546 of 1978 decided on 6th of July, 1981. He has also relied upon the case of Ramphal Nayak in Cr.W.J.C., No. 56 of 1977. The contentions of the petitioner are supported by the aforesaid decisions.

During the course of hearing of this case, the learned counsel appearing for the State was directed to obtain the case-diary in order to ascertain as to whether there is any material in the case-diary to show that the petitioner was dealing in food grains. The learned counsel appearing for State stated that the petitioner was carrying on a business in food grains within the meaning of the Order. A supplementary affidavit has also been filed on behalf of the petitioner stating therein that there is no material in the case diary to show that the petitioner was or is dealing in food grains. The contention of the petitioner are well founded. In the circumstance, I am of the opinion that the continuance of the prosecution of the petitioner would be an abuse of the process of the court. In the ire suit, the application is allowed and the impugned order dated 20th February, 1981 taking cognizance as well as prosecution of the petitioner is quashed.