- (1.) : Vishnudeo Narayan, J. This application has been filed by accused petitioner under section 482 of the Cr.P.C. to quash the entire criminal proceeding of Putki P.S. Case No. 86 of 1991 corresponding to G.R. No. 1502 of 1991 including the order dated 4.12.1995 taking cognizance under section 7 of the Essential Commodities Act in this case now pending in the court of Special Judge, Dhanbad.
(2.) THE facts giving rise to this application are as follows: - Informant J.D. Upadhyay, Project Officer, Moonidih Coal Washery, P.S. Putki,, District -Dhanbad of M/s B.C.C.L. lodged a written report before the O/C, Putki Police Station stating, inter alia, therein that more than 20 persons were engaged by the accused petitioner on 24.5.1991 at about 11.30 A.M. to commit theft of slurry from plot nos. 247, 248, 249 and 291 in village Gopinathdih and the aforesaid plots have already been acquired under the provisions of the L.A. Act, the possession of which was delivered to B.C.C.L by the L.A. Authorities on 29.6.1988. It has also been alleged that in terms of the judgment dated 17.8.1990 of the Apex Court slurry has been held to be coal and is a mineral and its regulation is within the exclusive jurisdiction of the Central Government and it belongs to the B.C.C.L. and it comes out from the washery belonging to the B.C.C.L. and only the B.C.C.L. is entitled to remove slurry from any land whatsoever. It has also been alleged that some interested persons are now lifting slurry illegally and without any authority from B.C.C.L. from the land nearby where slurry in accumulated and discharged from Moonidih Washery. On the basis of the written report a case under section 379 I.P.C. was initially instituted against the petitioner on 1.6.1991 at 12.00 hours but subsequently offence under section 7 of E.C. Act was added in the formal F.I.R. After investigation the charge sheet has been submitted under section 379 I.P.C. and under section 7 of E.C. Act. The learned Special Judge vide order dated 4.12.1995 took cognizance in this case under section 7 of E.C. Act for violation of the clause 3 and 10 of Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as 'the Order') and ordered for issuance of summons against the petitioners.
(3.) 2000(4) PLJR 520], Ambika Prasad Singh vs. State of Bihar [2000 East Cr.C. 861 (Pat)] and Sidheshwar Pandey and another vs. State of Bihar and Others (C.W.J.C. No. 6231 of 1994 -unreported decision of Patna High Court, Patna), it has been submitted that on the alleged date of the occurrence the Order aforesaid was not workable in relation to coal in view of the fact that in the Order storage limit had not been fixed either in relation to wholesale dealer or in relation to retail dealer. If has also been submitted that by notification dated 17.10.1985 storage limit has been fixed relating to different articles of retail dealers and wholesale dealers with respect to each commodity separately but so far coal is concerned, it has been simply stated in clause 13 of the notification that coal dealer means a person who at any time holds stock of coal in a quantity exceeding 10 quintals and it has no where been stated therein that what is the storage limit of wholesale dealer or a retail dealer and unless the storage limit of the wholesale dealer or a retail dealer is fixed, the Order aforesaid is not at all workable. Lastly it has been contended that the investigation in this case has been made by one Sri J.P. Das, who is Assistant Sub Inspector of Police which is in violation of clause 30 of the said Order which authorizes any police officer not below the rank of Sub Inspector to make search and seizure and investigate the case.;