The prosecution under the Essential Commodities Act requires the accused to be a licensee under the Public Distribution System, and for a conviction under the Indian Penal Code, it is essential to prove that the property in question is stolen.

1. This application is directed against the order dated 17.11.2005 passed by the learned Chief Judicial Magistrate, Khagaria, in Gogri P.S. Case No. 228 of 2005, G.R. No. 1218 of 2005 whereby he has taken cognizance of offence u/s. 414 of the Indian Penal Code as also sec. 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act).

2. According to the prosecution case based on the written report ot one Kaushlendra Kumar, Executive Magistrate, Gogri at about 5 P.M. on 19.9.2005 he received confidential information that several litres of kerosene oil had been kept in a room in the house of Md. Illiyas in Mohalla Muskipur, Road No. 14 by Ajay Choudhary of Jamalpur within Gogari P.S. illicitly {or the purposes ot selling it in black whereupon he raided the premises alongwith the police party and found the room locked. On an enquiry from Md. Iliyas it was gathered that the room had been taken on rent by the said Ajay Chaudhary some 1 1/2 months back but he was not aware of what activities were being carried on by the said Ajay Choudhary. It is said that thereafter the raiding party went to Jamalpur Bazar where Ajay Choudhary with his son were found presept and they were brought to the house of Md. Illiyas. It is further said that Gautam, the son of Ajay Choudhary had initially told that the key of the room was with his elder brother and he went to fetch the same. He returned after sometime and informed that the key was not available. The lock of the room was broken open in the presence of Md. Illiyas, Ajay Choudhary and a few others and from within six iron drums each containing about 200 ltrs. kerosene oil, 13 plastic drums each containing about 50 ltrs. kerosene oil, three plastic drums each containing about 30 Itrs. kerosene oil, one iron drum containing about 50 Itrs. kerosene oil, two empty iron drums, one empty iron drum and several incriminating articles for weighing were recovered. The total kerosene oil amounted to 1990 litres. Many of the assembled persons gave out that the said kerosene oil had been kept by Ajay Choudhary. The articles were seized under a seizure list and a copy thereof was handed over to Ajay Choudhary who was arrested.

3. It has been submitted on behalf of the petitioner that he is neither a licensee under the E.C. Act nor he was found in physical possession of the alleged kerosene oil and he was also not found selling the alleged kerosene oil in the black market. It was, therefore, submitted that sec. 7 of the Essential Commodities Act would not be applicable to him.

4. It was next submitted on behalf of the petitioner that no case had been lodged in any police station regarding theft of kerosene oil and as such there was no question of recovery of stolen kerosene oil so as to bring the offence within the ambit of sec. 414 of the Indian Penal Code.

5. The assertion of the learned counsel for the petitioner that he is not a licensee under the Public Distribution System has not been refuted by the State. It is by now well settled that only a licensee under the Public Distribution System can be prosecuted for violation of any terms and condition of licence issued under the Unification Order. This being the position the prosecution of the petitioner u/s. 7 of the Essential Commodities Act was completely without jurisdiction. I am supported in my view by the decision in the case of Mahanthi Yadav V/s. The State of Bihar, 2007 2 PLJR 289.

6. There is another aspect of the matter inasmuch as the learned Chief Judicial Magistrate was not competent or legally authorised to take cognizance of an offence u/s. 7 of the Essential Commodities Act.

7. So far as the offence u/s. 414 of the Indian Penal Code is concerned it is by now well settled that to convict the accused u/s. 414 of the Indian Penal Code it is necessary that the property which is the subject of the charge should be stolen property. Hence, a finding that it is stolen property is essential. In the instant case there is noth