Shri Omprakash Dugar and Another vs State of Assam

T.C. Das, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing a proceeding in G.R. Case No. 199 of 1977 pending in the Court of learned Sub-Divisional Judicial Magistrate, Kokrajhar, Goalpara u/s 7 of Essential Commodities Act read with Section 120B of the Indian Penal Code for alleged violation of the provisions of Clause 3 of the Assam Foodstuff (Prohibition of Withholding from Sale) Control Order, 1969, for short "Control Order".

The case against the Petitioners was started on the basis of a Complaint lodged by Shri K.M. Nag, Deputy Superintendent of Police, Bureau of investigation to the Officer-in-charge, Bongaigaon Police Station. On script of the report of the Investigating Officer or the complaint of Shri Nag lodged on 10.3.77 against (1) Motilal Kothari (2) Nauratanmal Kothari (3) Ranjit Singh Kothari (4) Dhanpat Singh Kothari and (5) the partners of M/s. Assam Stores, Bongaigaon, the learned Sub-Divisional Judicial Magistrate, Kokrajhar took cognizance of the offence.

On perusal of the order sheet it appears that on 31.3.78 the learned Sub-Divisional Judicial Magistrate Kokrajhar received charge sheet u/s 7 of the Essential Commodities Act read with Section 120B of Indian Penal Code from the Investigating Officer against accused Motilal Kothari and Om Prakash Dugar. The learned Court below on receipt of the charge-sheet as aforesaid, directed both the accused persons to appear in Court. On or about 19.8.78 the copies as referred to u/s 173 of Code of Criminal Procedure were furnished to the accused through their advocate. On perusal of the papers and documents including the copies of the Complaint, the Petitioners herein felt that further continuation of the proceedings would amount to abuse of process of Law as according to the Petitioners, there was no prima facie case made put against them and hence this application is made to quash the entire proceeding on the following grounds:

(i) That the allegations made against the Petitioner as to the violation of Clause 3 of the Control Order, 1969 is unwarranted, untenable and without material and as such the continuation of the Criminal proceeding against the Petitioners shall be nothing but the abuse of the process of the Court and therefore, the proceeding is liable to be quashed.

(ii) That taking all the allegations made in the Complaint petition at their face value, no ingredients of the alleged violation of Clause 3 of the Control Order, 1969 could be made out against any of the Petitioners.

(iii) That there is no allegation against the Petitioner No. 2 in the Complaint itself and there was no material whatsoever, prima-facie to show any collusion in respect of the alleged offence.

(iv) That the allegations made in the Complaint Petition and the documents relevant to the facts of the case if taken at their face value, make out absolutely no case against the Petitioners nor It could be considered that the facts of the case discloses the essential ingredients of an offence which bad been alleged against the Petitioners.

(v) Lastly, the decision of this Court passed in Criminal Revision No. 212 of 1974 disposed of on 28.8.78 is squarely applicable to the present case of the Petitioners.

The above noted grounds are the main springboard of attack to quash the proceeding as contended by Mr. J.P. Bhattacharjee, the learned Advocate General. Nagaland representing the Petitioners in the case.

To appreciate the contentions of the learned Counsel, it would be necessary to state the facts of the case and its origin which had culminated to lodge the present criminal proceeding against the Petitioners. The facts are as follows:

A consignment of 594 tins of mustard oil was booked on or about 1.10.76 by G.C. Oil Mill, Jaipur to New Borgaigaon under R/R. No. 1/728/53 under instruction of Mis. M.M. Kothari of Gauhati. The consignee and the consignor being self, the said consignment so booked was meant for delivery at destination. The relevant R/R was sent through the Bank of Baroda, Jaipur, to dispatch the R/R in question to the United Commercial Bank, Bongaigaon, for retirement of the said R/R by the party concerned. On receipt of the said R/R, the United Commercial Bank at Bongaigaon by its letter dated 11.10.76 to Assam Stores, Bongaigaon, intimated about the receipt of the R/R with a request to release the same on payment. In the meantime Shri Om Prakash, Petitioner No. 1 as an apart of M/s. M.M. Kothari submitted a declaration to the Chief Goods Clerk, New Bongaigaon Railway Goods Office that the consignment in question was routed through Bongaigaon Branch of United Commercial Bank and it would take sometime to release the same. It was further alleged by the prosecution that the Petitioner No. 1 in collusion with Assam Stores, Bongaigaon, and M/s. M.M. Kothari got the entire consignment of 334 tips of mustard oil unloaded from the Railway Wagon on 22.10.76 on which date the consignment reached Bongaigaon. After unloading the consignment, the same were stored in the railway godown at New Bongaigaon Station. The prosecution further alleged that the partners or/and the employee of the firm failed to take any step to take delivery of the consignment meant for sale to the consumers. Therefore, the entire stock of mustard oil was alleged to have been withheld from sale as the firm did not take any action for release of the stock and to sell the same to the retailers although the consignment was sent from Jaipur for the purpose of sale to the consumers within the State of Assam. Thereafter on or about 29.11.76 M/s. M.M. Kothari made an attempt to get release of the said consignment from the Railway godown but could not do so. On the basis of the above facts, the prosecution started on the Complaint lodged by Mr. K.M. Nag, Deputy Superintendent of Police, Bureau of Investigation on further allegation that the partners and employees of M/s. M.M. Kothari and M/s. Assam Stores, Bongaigaon in collusion, deliberately did not take delivery of the consignment till 30.12.76 and kept the entries stock of 594 tins of M. oil in the Railway godown at New Bongaigaon and thereby withheld from sale the entire stock for the purpose of creating artificial scarcity and black marketing. On the above allegations, the complaint was lodged for the commission of an alleged offence u/s 7 of the Essential Commodities Act, 1955, for contraventions of Clause 3 of Assam Foodstuff (Prohibition of Withholding from Sale) Control Order, 1969 read with Section 120B of the Indian Penal Code. On the basis of the Complaint lodged against the partners and the employees of the aforementioned two firms, the investigation was started and thereafter, the authority investigating the offence submitted charge-sheet in the Court of Sub-divisional Judicial Magistrate, Kokrajhar.

On going through the records of the case further facts may be noted, as revealed, relating to the proceeding. It is not disputed that the consignment of 594 tins mustard oil reached New Bongaigaon Station on 22.10.76 and was unloaded on the said date from the Railway wagon and kept in Railway godown as the Petitioners obtained no clearance for delivery of the consignment. As the consignor and the consignee was self, the relevant R/R had to be sent back to the consignor to endorse the same in favor of M/s. M.M. Kothari to enable them to take delivery of the consignment on passing the title of the goods to M/s. M.M. Kothari. However, the relevant R/R was subsequently endorsed in favor of M/s. M.M. Kothari on or about 25.11.76 and the same was sent through the concerned bank namely, United Commercial Bank, Bongaigaon to enable the party to take delivery of the consignment as owner of the goods on releasing the said R/R from the Bank. Thereafter, the agent of M/s. M.M. Kothari wrote to the Railway authority by a letter dated 30.11.76 requesting to allow them to take delivery of the- consignment. The Divisional Superintendent. N.F. Railway, Alipurduar, by his letter dated 1.12.76 in reply to the letter of M/s. M.M. Kothari, informed them that in view of the search warrant issued by the District Magistrate, Goalpara on 29.11.76 to search the Railway godown at New Bongaigaon Station, the entire stock of 594 tins of mustard oil was seized and thereafter removed from the railway godown and as such, the question of delivery of the consignment to M/s. M.M. Kothari could not arise. On perusal of the order sheet of the learned Court below, the further facts can be noted that on perusal of the report of Public Analyst, the learned Sub-divisional Judicial Magistrate by the order dated 27.9.77 directed the Judicial Magistrate to conduct the auction sale of the said consignment at a public auction. Subsequently, as it could not fetch appropriate value, the public auction which was held on or about 8.10.77, had to be dropped as the bid was not accepted to be fair and adequate. Thereafter, by an order dated 14.10.77, the learned Court below further directed to conduct another auction sale to dispose of the seized mustard oil. Accordingly, the second auction was held on or about 17.10.77. The Assistant Branch Manager, ''State fed'', Kokraihar, offered to pay Rs. 125/- pet 16 Kg. net tin of M. Oil as the Central Government announced fixation of price of M. Oil at Rs. 10/- per kg. By so order dated 7.11.77, passed by the Magistrate (Judicial) to whom the auction sale was directed to be conducted by the learned Sub-divisional Judicial Magistrate, verified the stock and found 577 tins of mustard oil gross weight 95 Qt. 03 Kg. 500 Gms (including weight of tins) could be sold in auction to M/s. N.B. Rice and Oil Mill, Bongaigaon for a sum of Rs. 72,613.30 paise. It was further found that 17 empty tins were lying at Stat fed godown at Bongaigaon. Therefore, the net shortage of the consignment of seized mustard oil was 17 tins of M. Oil each tin contained net 16 Kgs. of M. Oil. Under these circumstances and considering the allegations made in the Complaint Petition, the Criminal Proceeding was started against these two Petitioners for alleged contraventions of the provisions of Clause 3 of the ''Control Order''.

In order to consider the case at band, let me first take up the 3rd point as stated above as to whether there is any allegation against the Petitioner No. 2 in the complaint petition. As regards the Petitioner No. 1 Mr. Bhattacharjee has submitted that even if all the allegations made against him in the complaint are accepted in its entirety, nothing against him u/s 7 of the Act for alleged contraventions of the Clause 3 of the Control order has been made out. Therefore, according to the learned Counsel further continuation of the proceeding amounts to abuse of process of the Court and as such the entire proceeding is liable to be quashed. On perusal of the complaint petition it is not understood as to how the Petitioner No. 2 is entangled in this providing for alleged contravention of Clause 3 of the Order. It is according to prosecution that M/s M.M. Kothari is a commercial firm with the following persons namely, (a) Motilal Kothari (b) Nauratanrvn. Kothari (c) Ranjit Singh Kothari and (d) Dhanpat Singh Kothari. It cannot be ascertained from the complaint petition as to who of the partners and employees of M/s M.M. Kothari and M. Assam Stores, Bongaigaon entered into collusion to commit for offence u/s 7 of the Essential Commodities Act, 1955 for contravention of Clause 3 of the Control Order. No definite allegation is found as against Petitioner No. 2 though the complainant casually mentioned the name of Petitioner No. 1 stated to be an agent of M/s. M.M. Kothari claiming the consignment to the Railway authority. I have carefully perused the complaint petition and, other relevant documents and I find that there is no allegation whatsoever against the Petitioner No. 2. That being so, there is absolutely no material before the learned Sub-divisional Judicial Magistrate for issuance of process against the Petitioner No. 2 to stand the trial in this case. Therefore, the proceeding as against Petitioner No. 2 cannot stand and is liable to be quashed. The contention of the learned Counsel on point No. 3 is upheld as I find sufficient force in the said contention. Accordingly, the proceeding as against Petitioner No. 2 is quashed.

Now let me consider as regards the allegations made against Petitioner No. 1 and the gravamen of offence said to have been committed by him as alleged by the prosecution. At the outset it would not be out of place to mention that the name of Petitioner No. 1 is conspicuously absent in the complaint petition though in the body of the same his name has appeared an he claimed delivery of the consignment as an agent of M/s. M.M. Kothari, Before considering the submissions made by the learned Counsel as regards Point No. 1, 2, and 4 narrated above, let me consider the relevant provisions of the Assam Foodstuff (Prohibition of Withholding from Sale) Control Order, 1969. Clause 3 of the Control Order reads as follows:

Clause 3.

Prohibition of withholding from sale:

For the maintenance of supplies and services of foodstuffs essential to the life of the community no person shall withhold from sale any foodstuffs ordinarily kept for sale.

This Control Order was issued by the State Government in exercise of powers conferred under Clauses (e), (h), (i) and (j) of Sub-section (2) of Section 3 of the Essential Commodities Act, 1955 read with the Notifications of the Government of India, Ministry of Food and Agriculture (Department of Food), No. GSR III dated 24.7.67 and No. GSR 1508 dated 30.9.67. As per provisions of Section 3 Sub-section (2) Clause (e) of the Act a prohibition has been laid down for withholding from sale of any essential commodities kept for sale.

[Emphasis laid]

In view of the above, now let me consider as to whether the mustard oil tins which were stated in Railway godown till the time of delivery, could be said to have been kept for sale to attract the provisions of Clause (e) of Sub-section (2) of Section 3 of the Act and as contemplated in Clause 3 of the Control Order. Mr. Bhattacharjee, learned Counsel has argued that Clause 3 of the Control Order itself does not give any power to the Deputy Commissioner for issuance of any direction to seize the article from the Railway godown on the assumption that the same were kept for the purpose of withholding from sale to the retailers, The prohibitory order contained in Clause 3 of the Control Order is to create the prohibition and as such the power conferred under Clause (e) of Sub-section (2) of Section 3 of the Act under which this prohibitory order contained in Clause 3, cannot be stated to be a regulatory power. No doubt the power to regulate and the power to prohibit are distinct and separate. The powers to be exercised in that Sub-section (2) of Section 3 are prohibitory as well as regulatory in nature. This point has been discussed thoroughly in a decision of this Court in Criminal Revision No. 2) 2 of 1974 disposed of op 28.8.78 (Kundalmal v. State of Assam). This Court while considering the power under Clause (e) of Sub-section (2) of Section 3 of the Act under which the prohibitory order contained in clauses of the Control Order, discussed pros and cons and concluded:

...A perusal of the different clauses under Sub-section (2) of Section 3 will make it clear that some are prohibitory and others are regulatory in nature. Power to regulate occurs in Clauses (a) and (b) while Clauses (e) and (g) contain the power to prohibit. The rest of the Clauses (b), (c), (f), (h) thereof are not specific on the point, but impliedly partake the nature of regulatory power. As Clause (e) of Sub-section (2) of Section 3 and so also Clause (3) of the Control Order contemplates only a prohibitory order, the Deputy Commissioner could have no jurisdiction to issue any mandatory or regulatory order under the said Clause.

It was further held in that case;

...To deal with a situation like the present one, provisions have been made in Clause (f) of Sub-section (2) of Section 3 of the Act which gives powers to the Central Government, and for the matter of that to the State Government or any of its officers to whom such power may be delegated, to make an order requiring any person holding any stock of essential commodity to sell the whole or specified part of the stock to the Control Government or the State Government of to an officer or agent of such Government or to such other person or class of persona and in such circumstances that may be specified in the Order. Sub-section (3) of Section 3 further provides as below:

(3) Wherein any person sells any essential commodity in compliance with an order made with reference to Clause (f) of Sub-section (2), there shall be paid to him the price therefore as hereinafter provided-

(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;

(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any:

(c) where neither Clause (a) nos Clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.

The correctness of the above legal proposition has not been challenged by Mr. De, learned Public Prosecutor appearing on behalf of the State. The contention of the learned Public Prosecutor is that the facts of the case at band and the case cited above are distinct and different. Therefore, aforesaid decision of this Court is not squarely applicable to the present case. This submission of the learned Public Prosecutor cannot be accepted. The facts of a case may not be similar but the principle enunciated on interpretation of provisions of a Statute must be accepted if there cannot be any second opinion as to the interpretation and the applicability of the provisions of the Act to a particular case and tie legal aspect on that score. As regards the Petitioner No. 2, the learned Public Prosecutor has fairly submitted that he cannot plead more than what are factually available on records. The complaint petition does not disclose any material to throw any rope on Petitioner No. 2 for the prosecution in this case.

Mr. J.P. Bhattacharjee, learned Advocate General, Nagaland has submitted that M/s. M.M. Kothari or any of the partners including Petitioner No. 1 could not be prosecuted as the said firm became the owner of the goods on endorsement of the relevant R/R only on 25.11.76. It was but natural that tome duration of time had to be consumed to complete the formalities for taking delivery of the consignment. Therefore, after completion of formalities, the concerned firm M/s. M.M. Kothari wrote to the railway authority on 30.11.76 for delivery of the consignment. But in reply, the Railway authority concerned by its letter dated 1.12.76 intimated that the consignment in question was seized by the Police for alleged contravention of the provisions of Clause 3 of Control Order. The consignment was stored in the Railway godown and unless the delivery was effected, it could not be presumed that the consignment of mustard oil was kept withholding from sale. Before taking delivery of the articles, the consignment in question while in custody of the Railway authority, could not be meant for sale or to keep withholding from sale in the ease cited above i.e. criminal Revision No. 212 of 1974 a consignment of 745 tins of mustard oil was booked and ultimately the articles were stored in a warehouse belonging to the State Warehousing Corporation. Subsequently on verbal arrangement between the Deputy Commissioner and the party, the consignment of mustard oil tins were allotted to different Fair Price Shops and asked the dealers of the Fair Price Shops to lift the oil. As there was no further step from the side of the owner, the allot tees of the mustard oil could not take delivery of the same. It was alleged that the owner tactfully avoided the sale and willfully withheld the stock from sale in contravention of the provisions of Clause 3 of the Control Order. In nutshell, this was the allegation in that case. In the present case the matter is somewhat more favorable to the Petitioners as because the consignment was not delivered by the Railway authority due to non-compliance of certain formalities and as such the entire stock was kept in the Railway godown. The Railway authority could certainly levy due charges for the period for keeping the consignment in their godown till the date of taking delivery by the owner. As the facts revealed, the consignee in whose favor the R/R was endorsed, became the owner of the goods only a few days ago from the date of seizure of the consignment. Unless the goods were delivered and stocked in the godown under the control and custody of the owner, it could not be said that owner had any control over the goods and kept the goods withholding from sale which were meant for sale. Therefore, it must be held that the consignment of the mustard oil till the date of seizure was not in the custody of the owner and/or consignee but it was in the custody of the Railway authority as the same was not delivered to the consignee of the relevant R/R. In the above circumstances can it be said that the concerned consignee namely M/s. M.M. Kothari kept withholding the goods from sale? The simple answer would be that as there was no delivery of the consignment till the date of seizure, it cannot be said that the consignment in question was entirely under the control of the consignee and the same was meant for sale. Mere ownership by an endorsement would not help the consignee to have control of the commodities unless the consignee physically possess the same. The physical possession of the consignment was with the Railway authority as the consignment was not delivered on the date of seizure. The consignment was seized from the possession of the Railway authority. Therefore, it cannot be said that the consignee withheld from sale, the commodities which were kept for sale'' as contemplated under Clause 3 of the Order.

Mr. Bbattacbarjee, learned Counsel has drawn my attention to the scope of the provisions of Section 482 Code of Criminal Procedure and in that context has referred to me few decisions of the Supreme Court and also of this Court, Reference has been made to a decision of this Court as reported in 1971 AIR 146 Suresh Chandra Das v. State of Meghalaya and Amritlal v. State of Meqhalaya. In the above case it was held by this Court:

...When an application is made u/s 561A Code of Criminal Procedure a Court is required to consider whether on the existing materials before the Trial Court, a charge can be framed in consonance with the principles laid down in P.P. Kapur v. State of Punjab (AIR I960 SC 866)

It was further held:

...To allow the trial to continue, when manifestly there is no lethal evidence before the Court, on the mere probability of the prosecution at some future date supplementing its case by adducing further evidence, would in my opinion, constitute undue harassment of the accused and violate all principles of law. A trial cannot be allowed to proceed on contingent, hypothetical and anticipatory evidence.

Mr. Bhattacharjee has referred to me a latest decision of their Lordships of the Supreme Court as reported in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Municipal Corporation of Delhi v. Ram Kisan. Their Lordships considered the scope and the applicability of Section 597(2) and 482 of Code of Criminal Procedure which is an ad verbatim copy of Section 561A of the old Code. Their Lordships considered the ratio of the various decisions of the Supreme Court and in Paragraph 7 of the judgment, quoted the observations made in Raj Kapoor v. State reported in AIR 1989 SC 258 which runs as follows:

Even so, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.

While dealing with the quashing proceeding, guidelines can be found in paragraph 8 of the judgment of their Lorships in Delhi Municipality (supra). Paragraph 8 is quoted below:

Another important consideration which is to be kept in mind is as to when the High Court acting wide the provisions of Section 482 should exercise the inherent power in so far as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, where the scope of Section 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows (para 5):

Thus it may be safely held that in following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statement or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the all alienations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.

It was further concluded by their Lordships by saying in paragraph 10:

It is, therefore, manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the face of the complaint or the papers accord-paying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers u/s 482 of the present Code.

The learned Counsel has further referred to me Ramesh Chand Gaggar''s case as reported in 1983 (1) GLR 260 where it had been decided and discussed by the Court as to the applicability and scope of the provisions of Section 482 Code of Criminal Procedure. It was held in that .case that the High Court would be reluctant to quash a proceeding in course of its trial in lower Court even if there a fair chance for acquittal on the charges framed against him. But it will not be proper and fair if the accused is directed to stand the trial if it is found prima-facie that there is no allegation against him nor there is any nexus between the accused and the offence alleged to have been committed by him.

In State of Karnataka Vs. L. Muniswamy and Others, then? lordships while referring to the decisions of Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, observed and held:

These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record if unrebutted is such on the basis of which a conviction can be said reasonably to be possible.

Mr. De learned Public Prosecutor has no dispute as to the legal principle enunciated by their Lordships of the Supreme Court and also by this Court as referred to by Mr. Bhattacharjee. Mr. Dey has also referred to me the case of Municipal Corporation of Delhi Vs. Purshotam Dass Jhunjunwala and Others, and has submitted that the ratio of the said judgment of their Lordships of the Supreme Court appears to be that if on perusal of various clauses of the complaint, it is quite clear that a prima-facie case for summoning the accused has been made out, these would be no justification for quashing the proceeding under the provisions of Section 482 Code of Criminal Procedure more so, when further details in the shape of the evidence would be produced when the trial commences. The learned Public Prosecutor has further referred to me the decision of the Supreme Court as reported in AIR 1980 SC 22 Supdt. and Remembrance of Legal Affairs West Bengal v. Anil Kumar. That was a case under (Fire) Arms Act and the facts of the case are quite distinct and different from the instant case. Mr. De, the learned Public Prosecutor has referred the said decision of their Lordships in the context of possession of the property and to show the right of the, Petitioners to bold possession of the consignment in question. In the context of possession as interpreted by their Lordships in relation with Section 29(b) of Arms Acts, 1959 their Lordships held:

''Possession'' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of ''possession'' uniformly applicable to all situations in the context of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of ''possession''. Much of this difficulty and confusion is (as pointed out in Salmond''s Jurisprudence, 12th Edition, 1966) caused by the fact that possession is out purely a legal concept, ''Possession'', implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention, It involves power of control and intent to control. (See Dias and Hughes, ibid),

According to Pollock and Wright ''when a person is in such a relation to a thing that, so fir as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a home or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.

The above decision of their Lordships would not help Mr. De, in any manner on the facts and circumstances of the present case. Mr. De, the learned Public Prosecutor has further submitted that if the Petitioners desire to allege that there no is prima facie case, it would be open for them to challenge the existence of such prima facie case in the trial Court itself. Therefore, according to Mr. De, at this stage there is no scope for the Petitioners to pray for invoking the inherent jurisdiction of this Court to quash the proceeding. The contention of the learned Public Prosecutor cannot sustain on the ground that if it is found that there is no prima facie case made out either in the complaint petition or in other evidence produced either oval and/or documentary and if there is no legal evidence or any material evidence to prosecute the Petitioners in a criminal trial, it would be unfair and unjustified to harass the Petitioner unnecessarily any further.

From the foregoing discussions it is dear that the prosecution has no prima facie case against the Petitioner No. 1 as well. The prosecution is not in a position to connect the Petitioner No. 1 with the alleged offence. The materials on record do not show any violation alleged to have been committed by Petitioner No. 1 as provided under Clause 3 of the Control Order. Therefore, the prosecution u/s 7 of the Essential Commodities Act cannot stand. There is no material also to connect the Petitioners to have entered into collusion and/or conspiracy to commit the alleged offence as contemplated u/s 120B of the Indian Penal Code. It is clear that the prosecution has failed to show by material) documents namely, the complaint petition as well as the connected documents produced before the Courts that the Petitioners have committed alleged offence and on the basis of the allegations the issuance of process against the Petitioners was justified and reasonable. Therefore, the order of the learned Court below in aforementioned G.R. Case No. 199 of 1977 issuing process to both the Petitioners was unwarranted, untenable and bad in law. Hence the proceeding in the laid criminal case should be quashed which I accordingly, hereby do. It if farther directed that the sale proceeds of the mustard oil shall be paid to the firm M/s. M.M. Kothari.

In the result the petition it allowed and the proceeding of G.R. Case No. 199 of 1977 stands quashed.