IMPORTANT POINT
Mere non-mention of a specific Order issued under Section 3 of Essential Commodities Act, 1955and / or contravention of clauses thereof, ought not to lead to quashing of FIR.

JUDGMENT

Manish Pitale, J.—The present reference has arisen by order dated 16/03/2019, passed by Division Bench of this Court and the question for consideration is found in paragraph-11 of the said order. The said question is being reframed for the sake of convenience, as follows:—

“Whether mere non-mention of a particular provision of an “Order” or “Order” issued under section 3 of the Essential Commodities Act, 1955, by itself is sufficient to quash and set aside a first information report (FIR) registered for offence punishable under section 7 read with section 3 of the said Act, so as to stop further investigating into the matter?”

2. While referring the said question, the Division Bench of this Court has taken into consideration an earlier order of another Division Bench of this Court in the case of Santosh Mangilal Gupta v. State of Maharashtra and another (Judgment and order dated 26/07/2013 in Criminal Application (APL) No.301 of 2013), wherein by relying upon judgment of the Hon’ble Supreme Court of India in the case of Prakash Babu Raghuvanshi v State of M.P., (2004) 7 SCC 490: (2004) 6 Supreme 668, the Division Bench quashed an FIR, registered for offence under the provisions of the Essential Commodities Act, 1955 (hereinafter referred to “Act of 1955”), on the ground that neither in the FIR nor in the affidavitinreply was there a reference to an “Order” issued under section 3 of the Act of 1955. The Division Bench, while referring the said question, took into consideration the contents of the FIR and found that although detailed allegations were made against the applicant (accused), there was no specific mention of an Order issued under section 3 of the Act of 1955. In this context, the said question arose as to whether mere nonmention of an Order issued under section 3 of the Act of 1955 in the FIR would lead to quashing of the same.

3. The few facts relevant in the present case are that on 24/08/2015 a written report was submitted by the Inspection Officer and Naib Tahsildar against the applicant, alleging that there was hoarding of essential commodities with a view to sell them in the black market. Although detailed written report leading to registration of the FIR gives details of the material that was allegedly found to be stored by the applicant for illegally selling it in the open market, no reference was made to any Order issued under section 3 of the Act of 1955, which was contravened by the applicant. Yet offences under sections 3 and 7 of the Act of 1955 were registered against the applicant.

4. The applicant filed the present application under section 482 of Code of Criminal Procedure for quashing of FIR on the ground that there was absence of any reference to a specific Order issued under section 3 of the Act of 1955, which had been contravened by the applicant and following the dictum laid down in the aforesaid Division Bench judgment of this Court in the case of Santosh Mangilal Gupta v State of Maharashtra and another (supra) followed in a number of subsequent Division Bench judgments, the FIR deserved to be quashed.

5. Mr. Firdoz Mira and Mr. A.J.Thakkar, learned counsel for the applicants submitted that the aforesaid judgment of Division Bench of this Court in the case of Santosh Mangilal Gupta v. State of Maharashtra and another (supra), followed in a series of judgments of Division Benches demonstrated that when there was non-mention of Order issued under section 3 of the Act of 1955, contravention of which was alleged, the FIR was required to be quashed. It was submitted that the Division Bench of this Court in Sanjay Mangilal Gupta v State of Maharashtra and another (supra) had relied upon the judgment of the Hon’ble Supreme Court in the case of Prakash Babu Raghuvanshi v State of M.P. (supra) and that there could not be any reason to doubt the principle laid down in the said judgment of the Division Bench of this Court. The subsequent Division Bench judgments relied upon by the learned