Ragghu Alias Rakesh Bihari vs State Of Madhya Pradesh

Both these above petitions are arising out of the same Crime No.201/2015 registered in Police Station, Lidhora, Distt. Tikamgarh under Section 3/7 of Essential Commodities Act, 1955, therefore both the petitions are being disposed of by this common orders.

The facts giving rise to both these petitions, in short, are that ASI S.L. Rathi, posted at Police Station, Lidhora received information that blue kerosene was being transported in a vehicle, he along with Constable Ravindra Yadav, Constable Yashwant Yadav and Sainik Kalluram went to spot and saw tractor and trolley without exhibiting registration was coming. He stopped the tractor in which two drum loaded with 200 litre restricted blue kerosene was found. He asked for the papers. Both the applicants were on the tractor. They told that they purchased blue kerosene for their own use and not having any documents. Blue kerosene was restricted for free sale and it is to be distributed and sold by a licensee distributing shop. ASI S.L. Rathi found that both the applicants committed an offence under Section 3/7 of the Essential Commodities Act. Seized the tractor, took out the sample and prepared a seizure memo. Took the tractor and kerosene to the Police Station, Lidhora and alleged FIR has been registered at Crime No.201/2015. After completion of investigation, Inspector Jalam Singh Thakur, submitted charge sheet before JMFC, Jatara.

All the applicants, being aggrieved by that FIR and charge sheet has filed both these petitions on the ground that the whole checking, seizure and investigation were done by ASI S.L. Rathi who was not authorized to do the same. Applicant-Ragghu alias Rakesh Bihari who was working as a President of Lidhor Society, is a public servant, therefore, sanction under Section 197 of Cr.P.C. is necessary. Learned counsel for the applicants has placed reliance on the decision of this Court in the case of Banti Gupta Vs. State of M.P., 2016 (3) MPLC 47 (MP) and prays for quashing of all criminal proceedings initiated against the applicants.

Learned Govt. Advocate while opposing the aforesaid prayer submits that the applicants are found in transporting restricted blue kerosene illegally and supported the proceeding of investigation.

Heard learned counsel for the parties. Perused the case diary of Crime No.201/2015 registered at Police Station Lidhora. After perusal, this fact emerges out that all investigation process conducted by ASI S.L. Rathi posted at Police Station, Lidhora. No doubt he is below the rank of Sub Inspector of Police. He investigated into the matter and after investigation, Inspector of concerning Police Station filed a charge sheet before JMFC, Jatara. As per Clause-18 of M.P. Kerosene Dealers Licensing Order, 1979, ASI is not authorized to seize kerosene as, according to this clause, only a person not below the rank of Sub Inspector or above in the Police Department can seize the kerosene or any other vehicle carrying kerosene.

In the case of Banti Gupta (supra), cited by learned counsel for the applicants, this Court has quashed the FIR on the ground that as per Clause-11(5) of M.P. Public Distribution System (Control) Order, 2009 without prior permission of the Collector, action cannot be initiated under Section 7 of the Essential Commodities Act, if there is any violation of the PDS Order or the Central Order. As per Clause-10 of the said PDS Order, the officer who is empowered by virtue of this clause can carry out search action against the Fair Price Shop being run under PDS Control Order. However, in the present case after perusal of the case diary, there is patent defect found in the investigation that ASI S.L. Rathi seized the restricted blue kerosene and conducted all sampling and investigation process and another defects as mentioned in the case of Banti Gupta (supra). That prior permission of Collector is needed to search. In this case charge sheet has been filed and the case has been fixed for arguments before charge.

The case law cited by learned counsel for the applicant was pertaining to the M.P. Public Distribution System (Control) Order, 2009 and that PDS Order has been repealed by M.P. Public Distribution System (Control ) Order, 2015 which has been enforced on 25/3/2015 published in the M.P. Gazette on 25th March, 2015. As per Clause-20, the Order of 2009 has been repealed. In the present case the date of incident is 15/11/2015.

In M.Cr.C. No.13570/2017 (Ragghu alias Rakesh Bihari), the applicant also raised an application that at the time of carrying restricted kerosene, he was a public servant and without sanction under Section 197 of Cr.P.C., Court cannot take cognizance against him.

Considering all these facts, this Court finds that this is a pre-mature prayer made in both these petition invoking inherent powers enshrined under Section 482 of Cr.P.C. On perusal of copy of order sheet dated 13/07/2017 filed along with this petition, the case was fixed for arguments before charge. There is an opportunity for the applicant to be discharged by the trial Court. The applicants should raise all the objections before the trial Court where charge sheet has been filed. There is an opportunity to the applicant to file all legal and factual objection before the trial Court pertaining to the objection agitated in these both petitions filed under Section 482 of Cr.PC. When there is an opportunity of being agitated, the applicant should submit all the objections before the trial Court and after passing the order by the trial Court if the applicant is not satisfied by that order, he is free to move before this Court under the appropriate provisions.

With the aforesaid observations, both the petitions are disposed of.