Patna High Court
RAJEEV SINGH @ RAJEEV KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
Prosecution under Section 7 of the Essential Commodities Act cannot proceed without a specific control order being identified, and the order taking cognizance of the petitioner is quashed.
Summary
The petitioner, Rajeev Singh, challenged a 2016 order of the SDJM Begusarai that took cognizance against him under IPC section 465 and Essential Commodities Act (ECA) section 7 for alleged black‑marketing of rice. The FIR originally named nine accused; the petitioner’s name was added later on the investigating officer’s application. The petitioner argued that the godown was owned by his brother and let to a tenant, that he was not a PDS dealer, and that the FIR did not specify any control order under ECA section 3 that was allegedly violated. The Court held that without a specific control order, prosecution under ECA section 7 cannot stand, and that the addition of the petitioner as an accused was unlawful. Consequently, the order taking cognizance was quashed, and the petition was allowed.
Issues considered
- Whether the FIR discloses a specific control order under Section 3 of the Essential Commodities Act, as required for prosecution under Section 7.
- Whether the addition of the petitioner as an accused after the FIR was filed is valid.
- Whether the court had jurisdiction to take cognizance against the petitioner under the IPC and ECA.
- Whether the seizure of the goods was lawful and the prosecution sustainable.
Legislation cited
- Essential Commodities Act — s. 3, 6A, 6C, 7
- Indian Penal Code — s. 420, 465, 467, 468, 471
Subjects
- Essential Commodities Act
- black marketing
- control order
- cognizance
- addition of accused
- illegal seizure
- jurisdiction
- IPC
- Public Distribution System
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.80406 of 2019
Arising Out of PS. Case No.-141 Year-2014 Thana- PHULWARIA District- Begusarai
======================================================
RAJEEV SINGH @ RAJEEV KUMAR Son of Rameshwar Prasad Singh
Resident of Village-Sihma, Police Station-Matihani, District-Begusarai.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Santosh Kumar, Sr. Advocate
Mr. Sanjeet Kumar, Advocate
For the State : Mr. Ganesh Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 12-03-2026
In this case, the petitioner has challenged the order
dated 06.12.2016 passed by the S.D.J.M, Begusarai in
connection with Phulwaria P.S. Case No. 141 of 2014, by which
the learned Magistrate has taken cognizance against the
petitioner under section 465 of the Indian Penal Code and under
section 7 of the Essential Commodities Act.
2. The prosecution case is that the informant-
Circle Officer, namely Kamlesh Kumar Singh along with other
officials went to the godown of Bakhthan Astan and found that
some persons were loading bags on a Truck bearing No. BR-
06C-8413 and others were packaging rice in bags having F.C.I
printed on it. Upon seeing the police, the persons at the godown
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tried to flee, but the police managed to apprehend them and
thereafter, they disclosed their names and addresses. The munsi
(clerk) of the godown namely, Suresh Prasad, disclosed that the
godown belongs to this petitioner and at his instance the F.C.I.
sealed rice bags were replaced with ‘double tiger’ marked bags
and the same were being supplied to the local market.
Accordingly, the present F.I.R. bearing Phulwaria P.S. Case No.
141 of 2014 was registered under sections 420, 467, 468, 471 of
the Indian Penal Code and under section 7 of the Essential
Commodities Act.
3. Learned Senior Counsel for the petitioner
submits that the petitioner was not named in the F.I.R. but the
Investigating Officer of the case filed a petition before the court
below for adding his name as accused in the case and thereafter
the name of the petitioner was added as an accused in the F.I.R
and the court below vide impugned order dated 06.12.2016 has
taken cognizance against the petitioner.
4. Learned Senior Counsel for the petitioner
further submits that the godown in question actually fell in the
share of the own brother of the petitioner namely, Pankaj
Kumar, who had let out the same to the co-accused Suresh
Prasad Singh @ Sujeet Kumar Mishra and in this regard a
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‘kirayanama’ (rent-agreement) was also executed between them
and said Suresh Prasad Singh alias Sujeet Kumar Mishra, was
engaged in running the business of food-grains in the said
godown. Further, the seized food grains and articles have been
released in favour of said co-accused - Suresh Prasad Singh on
the petition filed by him in the court below. Therefore, it is the
submission of learned Senior Counsel for the petitioner that
neither the petitioner nor any of his family members were in any
way concerned with the business run by the tenant.
5. It is the submission of the learned Senior
Counsel for the petitioner that even the F.I.R. does not disclose
any violation of provision of specific Control Order made under
section 3 of the Essential Commodities Act, violation of which
is punishable under section 7 of the E.C. Act. The seized food
grains is free sale commodity and there is no control order, made
under section 3 of the E.C. Act which prohibits the sale and
purchase of food-grains.
6. It is the categorical submission of learned
Senior Counsel for the petitioner that since the petitioner is not a
P.D.S. dealer, the provisions of Public Distribution System
(Control Order), 2007 would not be applicable against him.
7. It has been submitted by learned Senior
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Counsel for the petitioner that the allegation of black marketing
of foodgrains is wrong as keeping of the food-grains is not an
offence and further there is no allegation against the petitioner
of having sold the foodgrains. Further, there is no allegation in
the F.I.R. or even in the charge-sheet for violation of any of the
order made under section 3 of the E.C. Act.
8. It has categorically been submitted by the
learned Senior Counsel for the petitioner that in exercise of the
powers conferred by Section 3 of the aforesaid Act and with
prior concurrence of the Central Government, the Hon’ble
Governor of Bihar has been pleased to make an order, G.S.R. 2,
dated the 12.10.2002 which is known as Bihar Trade Articles
(Licensing Unification) Order 1984, by which the word 'food
grain' has been repealed. Furthermore, under the provisions of
Section 2G of the Bihar Trade Articles (Licensing unification
order) 1984, the word 'food grain' has been defined which means
any one or more of the food grains as specified in Part A of the
Schedule 1 and includes product of such food grains other than
husk and bran. Therefore, it is the contention of the learned
Senior Counsel that there is no law at present, restricting the
movement of wheat and rice inside the State of Bihar.
9. He next submits that the initiation of the
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criminal proceeding is also without jurisdiction because of the
reason that the goods were not seized by the officers, who under
the provisions of the Act, are authorized by the State
Government to make search and seizure. It is well settled
principal of law that any Criminal Proceeding initiated on the
basis of illegal search and seizure is not maintainable in the eye
of law and hence the impugned order is fit to be set aside.
10. The learned Senior Counsel for the petitioner
next submits that during the investigation only the statement of
official witnesses have been recorded which are more or less
same when compared to each other and no independent
witnesses have been examined by the investigating officer in
this regard. Also, from the allegation, made in the F.I.R. and
evidence collected during the course of investigation nothing
incriminating has been found against the petitioner.
11. Learned Senior Counsel for the petitioner has
relied upon the following decisions:-
i. Hari Narain Mahto vs. The State of
Bihar reported as 2009 (3) PLJR 82
= 2009 SCC OnLine Pat 1232;
ii. Ranjeet Kumar vs. The State of
Bihar & Anr. reported as 2009 (4)
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PLJR 310 = 2009 SCC OnLine Pat
1406;
12. The State has opposed the prayer made by
the petitioner in the present petition and has supported the
impugned order.
13. I have considered the submissions of the
parties and perused the materials on record.
14. From the perusal of the records, it appears
that the F.I.R. was registered on 02.09.2014 against nine named
accused persons and the present petitioner was not named as an
accused in the aforesaid F.I.R., however, he has been arrayed as
an accused based on an application preferred by the
Investigating Officer on 27.09.2014 which came to be allowed
by the learned S.D.J.M., Begusarai vide order dated 29.11.2014.
Thereafter, the charge-sheet was submitted.
15. Pertinently, the F.I.R. instituted by the
official informant does not disclose the specific Control Order
which has allegedly been violated to invoke section 7 of the
Essential Commodities Act. This Court in the case of Hari
Narain Mahto (supra) had categorically held that when the
F.I.R. fails to disclose the specific Control Order made under
section 3 of the Essential Commodities Act, which has been
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allegedly violated, then no prosecution would lie under section 7
of the Essential Commodities Act. Further, a bald statement that
the articles seized on mere suspicion of black-marketing cannot
meet the essential ingredients for the criminal prosecution.
16. It will be relevant to quote paragraph nos. 6
to 8 of the decision rendered in the case of Hari Narain Mahto
(supra) which read as under:-
“6. This application is fit to be allowed on the
following grounds stated hereinbelow:—
The F.I.R. does not disclose as to which
Order made under Section 3 of the E.C.
Act has been violated, Section 7 of E.C.
Act deals with the persons who
contravene any Order made under
Section 3 of the E.C. Act thereof but
when the F.I.R. does not disclose which
Order made under Section 3 of E.C. Act
has been contravened no prosecution
lies.
7. Secondly mere allegation that the articles seized
was purportedly for the purposes of
blackmarketing is not complete in the
prosecution. The element of sale being also
absent the allegation of black-marketing is not
complete.
8. Due regard being had to the facts and
circumstances of the case and the discussions
made above the prosecution of the petitioners
herein would amount to an abuse of the process
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of the Court and the same cannot be sustained in
the eye of law.” (emphasis supplied)
17. Further, in the case of Ranjeet Kumar
(supra) this Court while dealing with the confiscation order
passed by the Collector, has held as under:-
“5. Shri N.K. Agrawal, learned Senior Counsel
appearing on behalf of the petitioner submits
that the entire exercise right from culminating in
the confiscation order has been wholly without
jurisdiction. He submits that so far as wheat and
rice are concerned, there is neither any storage
restriction nor any movement restriction nor any
licensing requirement under any order made
under the Essential Commodities Act. He further
submits that there is no statutory price fixation
under Essential Commodities Act in relation to
wheat and rice and that being so, there is no
question of blackmarketing of wheat and rice as
held by this Court as far back as in 1982 PLJR
304 in Pritamlal Yadav v. State of Bihar. He
further submits that before the Collector can
assume jurisdiction to initiate confiscation
proceeding or order confiscation, it is incumbent
upon him to find that any provision of any order
issued under Section 3 of the Essential
Commodities Act is violated in absence whereof
the very initiation of the proceedings becomes
wholly without jurisdiction and the order of
confiscation is also without jurisdiction. He
further submits that a reference to the order in
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question would show that Collector has not
given any finding with regard to violation of any
provision of any order issued under the
Essential Commodities Act. He has acted merely
on suspicion and surmises. It is further
submitted that a first information report is
merely an allegation but it is not known under
what jurisprudence, the learned Collector has
treated the first information report as a gospel
truth for this Court has more than a decade back
held that any ipse dixit stated by the State
cannot be taken to be gospel truth and before a
person is required to defend his case, it is for the
State to establish by cogent materials its case.
Here, the Collector had accepted the first
information report as a gospel truth and treated
it as a judgment of petitioner's criminal acts.
That is not permissible or sustainable in law.
6. Having heard the parties, the writ petition is
being disposed of at this stage itself.
7. A bare perusal of the order shows a very
dispensing trend. Valuable property of petitioner
is being confiscated in such a casual manner.
The right to initiate a confiscation proceeding
under Section 6A of the Essential Commodities
Act is dependent on a prima facie finding of a
violation of any provision of any Order issued
under Section 3 of the Essential Commodities
Act. The entire ordersheet of the Court of
Collector has been annexed. At no point of time
has the Collector even bothered to look as to
what order and in what manner which order is
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being violated. The entire proceeding started on
suspicion of blackmarketing. When there being
no statutory price fixation for sale of wheat and
rice under any order issued under the Essential
Commodities Act, still allegation of
blackmarketing is made. That is not sustainable
in view of the Division Bench judgment of this
Court in the case of Pritamlal Yadav (supra).
That is not all. Collector gives a finding that on
basis of allegations in the first information
report, which he takes to be the gospel truth
against all canons of justice and all rule of law,
he holds the wheat and rice to be an FCI wheat.
If it is FCI wheat then at best it could be a case
of theft of FCI wheat. That is not an offence
under Essential Commodities Act for which
Collector has jurisdiction to confiscate. The
tragedy is that even though it has been over one
year since the case was instituted, FCI has not
led any claim in respect of the wheat in question.
Still the Collector treats it to be FCI wheat. The
person, whose property it is alleged to be stolen,
is not laying his claim, but the learned Collector
has chosen to lodge a case on their behalf. This
is another curious aspect contrary to the rule of
law. In my view, virtually all these matters stand
concluded by judgment of Justice B.N. Agrawal,
as he then was, speaking for Division Bench in
the case of Dharmdeo Yadav v. State of Bihar
since reported in 1990 (2) PLJR 169 where the
jurisdiction of the Collector, in such matters,
have been elaborately discussed and if one
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reads the said judgment, it could be found that
every part of the judgment has been flagrantly
violated by the Collector in the present
proceedings.
8. In nutshell, in the entire proceedings, there is
no reference to any order or any provision of
any order issued under Section 3 of the
Essential Commodities Act which could be said
to have been violated. Bald, vague allegations
of black-marketing do not get us anywhere
especially when we are dealing with property
rights of citizens. Article 300 of the
Constitution clearly stipulates that no person
can be deprived of his property except by
procedure established by law. Here, petitioner
has been deprived of his property without
authority of law because the power under
Section 6A of the Essential Commodities Act
could only be exercised on certain facts being
there. Those facts not being there nor having
been found to be there, the exercise was clear
abuse of process of Court and cannot be
sustained.
9. The order of confiscation, therefore, is set aside.
The Collector, Muzaffarpur is now directed to
act in terms of Section 6C and there being no
statutory price fixed for wheat and rice in terms
of Section 3(3B) of the Act, the Collector would
be bound to pay the petitioner the market price
of the wheat and rice on the day when the wheat
and rice were sold irrespective of the price of
the wheat and rice on which it was sold and the
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amount deposited in the Government Treasury.
Apart from it, the petitioner would be entitled to
the statutory interest as provided under Section
6C(2) of the Essential Commodities Act.”
(emphasis supplied).
18. From the afore-quoted decisions, it is
abundantly clear that the prosecution cannot be launched sans
mentioning the specific Control Order which is alleged to be
violated. In the present case, the F.I.R. does not disclose any
Control Order issued by the State Government under Section 3
of the Essential Commodities Act, which is said to be violated
by the petitioner. Mere suspicion with bald and vague allegation
of black-marketing could not suffice to launch a criminal
prosecution against the petitioner.
19. It is also noted that the brother of the
petitioner had let out the premises in question to the co-accused,
who was using the aforesaid premises for running a business of
foodgrains. Furthermore, the seized food grains and articles
have since been released in favour of said co-accused on the
petition filed by him in the court below. Pertinently, the
petitioner is not a P.D.S. dealer. No prosecution under the
Essential Commodities Act can be launched against a private
person, more-so, when no specific allegation is attributed
against him.
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20. Considering the aforesaid facts, this
application is allowed. Accordingly, the order taking cognizance
dated 06.12.2016 passed by the S.D.J.M, Begusarai in
connection with Phulwaria P.S. Case No.141 of 2014 is hereby
quashed and set aside qua petitioner.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R
CAV DATE 19.01.2026
Uploading Date 12.03.2026
Transmission Date 12.03.2026
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