In The Case Of G.l. Didwania And Another v. Income Tax Officer

Cr. M. P. No. 343 of 2003 AnApplication under Section 482 of the Code of Criminal Procedure, 1973 Shyam Sunder Agarwal, son of late Makhan Lal Agarwal, resident of Bara, Nimdih, P.S. Sadar, Town Chaibasa, District Singhbhum West .......... Petitioner VersusThe State of Jharkhand………. Opposite Party PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner: Mr. Shankar Lal Agarwal, Advocate For the State: A.P.P. ___ 4. 6.2.2015:Heard Mr. Shankar Lal Agarwal, learned counsel appearing on behalf of the petitioner and the learned counsel for the State. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Sadar P.S. Case No. 58 of 2002 corresponding to G.R. No. 263 of 2002 including the order dated 10.02.2003 passed by the learned Chief Judicial Magistrate, Chaibasa, whereby and whereunder cognizance for the offences punishable u/s 406, 409, 420, 411 and 120B of the Indian Penal Code as also Section 7/8 of the Essential Commodities Act (E.C. Act) has been taken. The prosecution story arises out of a First Information Report (F.I.R.) instituted by the Block Supply Inspector Incharge, Sadar, Chaibasa is that on receiving a confidential information that two 407 trucks bearing registration No. BR18A-1786 and BR18A-7788 were coming to Chaibasa loaded with wheat/ rice for the purpose of black marketing, one truck was apprehended which was found loaded with wheat. It has further been stated that the truck bearing registration No. BR18A-7788 loaded with wheat was also intercepted. The driver disclosed that wheat was loaded from Jhinkpani and was to be unloaded in the house of the petitioner. On verification of the godown of the petitioner it was alleged that wheat was found in the bags having the marks of Food Corporation of India (F.C.I.) on them. After investigation the police having found the case to be true submitted charge-sheet u/s 406, 409, 420, 411 and 120B of the Indian Penal Code as also under Section 7/8 of the Essential Commodities Act (E.C. Act) and thereafter the learned Chief Judicial Magistrate, Chaibasa was pleased to take cognizance for the offence punishable u/s 406, 409, 420, 411 and 120B of the Indian Penal Code as also Section 7/8 of the Essential Commodities Act (E.C. Act). The learned counsel for the petitioner has submitted that the F.I.R. does not disclose any offence committed by the petitioner u/s 7 of the E.C. Act. He has further submitted that the State of Jharkhand vide letter No. 559 dated 24.4.2002 was pleased to remove all sorts of control including the permit and licence in respect of wheat, rice, sugar, edible oils and edible seeds and since in absence of any restriction, no case u/s 7 of the E.C. Act could have been instituted against the petitioner. It has further been submitted that in the confiscation proceeding which was initiated u/s 6A of the E.C. Act, no offence was made out and ultimately the Deputy Commissioner, West Singhbhum at Chaibasa released the articles. He, therefore, submits that once the confiscation case has ended in favour of the petitioner as such the criminal proceeding is also liable to be quashed. It is further submitted that in absence of any storage limit or any restriction on movement of rice and wheat, no criminal proceeding can be allowed to be continued. The learned counsel for the State on the other hand has submitted that trucks loaded with wheat and rice were being taken for black marketing and after a thorough investigation, the police has submitted charge-sheet against the petitioner and therefore at this stage the arguments of the counsel for the petitioner that no offence is made out against the petitioner, cannot be accepted. The learned counsel for the State on the other hand has submitted that trucks loaded with wheat and rice were being taken for black marketing and after a thorough investigation, the police has submitted charge-sheet against the petitioner and therefore at this stage the arguments of the counsel for the petitioner that no offence is made out against the petitioner, cannot be accepted. After hearing the learned counsel for the parties and after going through the records, I find that the State of Jharkhand vide letter No. 559 dated 24.4.2002 has been pleased to remove control with respect to wheat, rice, sugar and edible oil and edible oil seeds. The present occurrence is after the issuance of the said letter and therefore it cannot be said that on the date when the trucks were apprehended loaded with wheat and rice, there was restriction in movement and storage limits. In the case of G.L. Didwania and another v. Income Tax Officer 3. and another reported in 1995 Supp (2) SCC 724, the matter related to assessment under the Income Tax Act for which a criminal proceeding was also instituted and the Appellate Tribunal having set aside the assessment, the Hon’ble Supreme Court in the context of pending criminal case held as follows:- “4. In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s Young India and Transport Company and that finding has been set aside by the Income Tax Appellate Tribunal. If that is the position then we are unable to see as to whether the prosecution can be sustained in view of the order passed by the tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s Young India and Transport Company and that finding has been set aside by the Income Tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained.” In the present case the entire issue revolves around the restrictions on the movement of rice and wheat for which a confiscation case as well as a criminal case was instituted and since the confiscation was dropped against the petitioner and the very basis of the institution of the criminal case having become non-existent, the criminal proceeding with respect to the same allegations cannot be allowed to continue. In support of the argument by the learned counsel for the petitioner that even otherwise the C.J.M. was not authorized by the State Govt., he has referred to the judgment of Raj Kishore Prasad and another v. State of Bihar reported in 1999(2) East Cr C 273 (Pat) in which the Hon’ble Division Bench on reference by the learned Single Judge had held thus:- “12. We, accordingly, hold that a Judicial Magistrate of the 1[st ]Class, who was not “specially empowered” by the State Government cannot try an offence falling under Section 12-A(2)(b) of the Act. The Single Bench Judgment in Gopi Krishna Kejriwals’s case (supra) lays down the correct law and it is accordingly approved.” Class, who was not “specially empowered” by the State Government cannot try an offence falling under Section 12-A(2)(b) of the Act. The Single Bench Judgment in Gopi Krishna Kejriwals’s case (supra) lays down the correct law and it is accordingly approved.” The contention of the learned counsel for the petitioner is substantiated by virtue of the Notification dated 11.5.2001 issued by the Hon’ble Jharkhand High Court, Ranchi and it has been annexed to the supplementary affidavit and it has not been controverted by the State Govt. by filing counter affidavit. Such contention of the learned counsel The contention of the learned counsel for the petitioner is substantiated by virtue of the Notification dated 11.5.2001 issued by the Hon’ble Jharkhand High Court, Ranchi and it has been annexed to the supplementary affidavit and it has not been controverted by the State Govt. by filing counter affidavit. Such contention of the learned counsel for the petitioner in the face of the provisions of Section 12A of the E. C. Act and the Notification dated 11.5.2001 issued by the Hon’ble Jharkhand High Court and which remains uncontroverted by the State has to be accepted and on this ground also the criminal proceedings deserves to be quashed. Even otherwise in terms of clause 10 of the Public Distribution System (Control) Order 2001 which necessitates the State Government to authorize an authority with the powers of search and seizure of rice on a complaint of irregularities committed by the Public Distribution System Dealer and in the present case, in the absence of anything to show that the informant was authorized by the State Govt. in terms of clause 10 of the Public Distribution System (Control) Order 2001, the criminal proceeding becomes void ab initio. Reference in this connection may be made to a judgment of this Court in the case of Sangeeta Devi & another v. State of Jharkhand, reported in 2013(3) JCR 240 (Jhr.). Apart from the above, since it has been held that there was no restriction with respect to wheat and rice as there was no storage limit existing on the date of occurrence and the very basis of initiation of the criminal case u/s 7 of the Essential Commodities Act is non existent, no case under the provisions of the Indian Penal Code is also made out. In view of what has been discussed above, I do find merit in this application. This application is accordingly allowed and the entire criminal proceeding in connection with Sadar P.S. Case No. 58 of 2002 corresponding to G.R. No. 263 of 2002 including the order dated 10.02.2003 passed by the learned Chief Judicial Magistrate, Chaibasa, whereby cognizance for the offences punishable u/s 406, 409, 420, 411 and 120B of the Indian Penal Code as also Section 7/8 of the Essential Commodities Act (E.C. Act) has been taken, is quashed so far as the petitioner is concerned. Dated the 6[ th ], February, 2015Jharkhand High Court, RanchiMK/N.A.F.R (Rongon Mukhopadhyay, J)