Patna High Court
Md. Qaiyum vs The State Of Bihar on 4 March, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.13560 of 2023
Arising Out of PS. Case No.-18 Year-2018 Thana- SUKHANI District- Kishanganj
======================================================
1. Md. Qaiyum, S/o Late Haji Abdul Kadir,
2. Kashif Quamar @ Gulab @ Md. Gulaab @ Md. Gulam, S/o Md. Qaiyum
Both are R/o Village- Bhagwanpur, Bairgachhi, P.S.- Jokihat, Distt- Araria.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. N.K, Agrawal, Senior Advocate
Mr. Kumar Rajdeep, Advocate
Mr. Arvind Kumar, Advocate
Ms. Diksha Kumari, Advocate
For the State : Mr. Parmeshwar Mehta, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 04-03-2025
Heard learned counsel appearing for the petitioners
and learned APP for the State.
2. The present application has been filed by the
petitioners for quashing of the order dated 21.07.2022
passed by learned Sub-divisional Judicial Magistrate,
Kishanganj in connection with Sukhani P.S. Case No.18 of
2018 and S.G.R. No.1741 of 2018, whereby the learned
jurisdictional Magistrate has taken cognizance for the offences
punishable under Sections 413, 414, 467 of the Indian Penal
Code (in short ‘IPC‘) and Section 7 of the Essential
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Commodities Act (in short ‘E.C. Act‘) and also by the same
order, charges were framed against the petitioners.
3. The case of prosecution set out against the
petitioners, inter alia, is that on 12.09.2018 at about 12:45
P.M., the Block Supply Officer namely, Amit Kumar Singh,
Thakurganj has submitted a written report to the S.H.O.
Sukhani Police Station, Thakurganj alleging therein that after
reaching at Sabodangi Chowk, the informant found that a
truck bearing Registration No.WB59A4055 was intercepted
by the Sukhani Police Officers. On verification, it was found
that the wheat bags were loaded in the truck and gunny bags
were printed with the monogram of F.C.I. and all the bags
were hand-stitched. It is further alleged that on enquiry from
the said truck driver namely, Chandrama Mahto, he said that
he has loaded the wheat in truck from M/s. Naaz Stock Point,
Araria and he produced the bill and mobile no., which was
mentioned on the bill. On call from the said mobile no., one
Safir replied that the wheat does not belong to him i.e. M/s.
Naaz Stock Point. Hence, the bill appears to be suspected. It
is further alleged that the driver of the truck gave his
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statement that he had taken the wheat from M/s. Naaz Stock
Point, Bhagwanpur, Araria and was going to Shakambari Flour
Mills, Siliguri and in the meantime, he was apprehended by
the Sukhani Police Officers. From the said truck, total 259
sacks containing 129.5 quintals of wheat were found loaded
in the alleged truck. It is further alleged that prima facie the
recovered wheat appears to be government subsidized items,
which was being taken to Siliguri for the purpose of black
marketing. The seized wheat were handed over to a PDS
dealer, namely, Babu Lal Singh, till further order.
4. Learned counsel appearing on behalf of the
petitioners submitted that the petitioners are not named in
the FIR. The owner and the driver of the alleged truck bearing
Registration No.WB59A4055 were made accused in the FIR.
It is further submitted that initially after investigation, the
police submitted charge-sheet on 31.01.2019 against one
Chandrama Mahto and learned A.D.J.-III, Kishanganj took
cognizance of the offences under Sections 413, 414, 467 of
the IPC and Section 7 of the E.C. Act. It is further submitted
that subsequently, supplementary charge-sheet vide Charge-
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sheet No.6 of 2022 dated 31.01.2022 was filed in the court
of learned S.D.J.M., Kishanganj and on 21.07.2022, it took
cognizance against the petitioners. It is further submitted that
the petitioners are not at all concerned with wheat found
loaded on the truck bearing Registration No.WB59A4055
and/or with the truck in question, on which wheat was found
loaded.
5. Learned counsel further submitted that even if
the prosecution case is accepted on its face value, no case is
made out under Section 7 of the E.C. Act and under Sections
413, 414 and 467 of the IPC. It is submitted that according to
FIR, all the bags were hand-stitched and not stitched by
machine and/or were not tagged with tag of F.C.I. It is further
submitted that petitioners are not at all concerned with M/s
Naaz Stock Point and he is neither partner nor the proprietor
of the firm. It is further submitted that only on the suspicion
without any basis or materials that the loaded wheat appears
to be government subsidized wheat and was being carried for
the purpose of black marketing to Siliguri is baseless and
unfounded and, therefore, the impugned order is fit to
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quashed/set aside. In support of his submission, learned
counsel has relied upon the legal report of Hon’ble Supreme
Court as available through State of Haryana and Ors. Vs
Bhajan Lal [1992 Suppl. (1) SCC 335]. Reliance was also
made on legal report of this Court as available through
Arvind Kumar vs. State of Bihar reported as 2014 (4)
PLJR 255.
6. Learned counsel appearing for the State while
opposing the prayer for quashing of the petition submitted
that the wheat, which was found loaded on the truck was
subsidized and same was carried by the petitioners for black
marketing.
7. It would be apposite to reproduce para-102 of
the legal report of Bhajan Lal case (supra), which is as
under:-
“102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
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give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise
to secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and sufficiently
channelised and inflexible guidelines or
rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint,
even if they are taken at their face
value and accepted in their entirety do
not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except
under an order of a Magistrate within
the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations
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evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against
the accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable
offence, no investigation is permitted by
a police officer without an order of a
Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is sufficient
ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which
a criminal proceeding is instituted) to
the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the
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(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge”.
8. It would be further apposite to reproduce Para- 6
and 7 of Arvind Kumar case (supra) as referred:-
“6. It has been settled by several
decisions of this Court that no prosecution
under the Essential Commodities Act could
be launched as against a private person.
The petitioner, admittedly, is not a dealer
under the Public Distribution System. He
has offered his preliminary explanation
about the circumstance under which the
kerosene oil was so purchased. In the
absence of any provision in the Essential
Commodities Act for launching prosecution
as against a private person, the petitioner
cannot be tried for such offence.
7. The Essential Commodities Act has
been framed for the benefit of
consuming public. For any violation of
the provisions of the Essential
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promulgated under the authority of the
Essential Commodities Act, only the
agents or the P.D.S. Dealers could be
prosecuted. Kerosene oil, being a
controlled item, is governed by a
necessary Control Order. However, since
the petitioner is not a P.D.S. Dealer, he
cannot be tried for the offence under
Section 7 of the Essential Commodities
Act.”
9. In view of aforesaid legal and factual
submissions, as petitioners are not the P.D.S. dealer, and also
not appears connected with alleged truck and shop i.e. M/s
Naaz Stock Point, Araria, in any manner, whereas implication
appears on the basis of suspicion out of confessional
statement of truck driver, the impugned order of cognizance
dated 21.07.2022 passed by learned Sub-divisional Judicial
Magistrate, Kishanganj in connection with Sukhani P.S. Case
No.18 of 2018 and S.G.R. No.1741 of 2018 with all its
consequential proceedings is hereby set aside and quashed
qua petitioners.
10. Accordingly, the petition stands allowed.
11. Let a copy of the judgment be sent to the
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learned trial court forthwith.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR AFR CAV DATE NA Uploading Date 05-03-2025 Transmission Date 05-03-2025
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