The repeal of the Bihar Coal Control Order, 1956, by the Bihar Trade Articles (Licences Unification) Order, 1984, and the absence of a storage limit for coal on the date of the alleged offenses, rendered the prosecution of the petitioners under the Essential Commodities Act, 1955, unsustainable.

Surendra Narain Jha, J.-Both these application were heard together and they are being disposed of by this common judgment as common question of law is involved in these applications.

2. The short facts which led to the filing of Cr. Misc. No. 3201/1985 (R) are as follows. A fardbeyan was lodged on 5.6.85 by the Officer Incharge of Chirkunda Police Station alleging, inter-alia, that on the basis of a secret information, the factory premises of M/s. Lakshmi Narain & Brothers was inspected. It was stated that a truck was being loaded with burnt coal. The coal in question belonged to the petitioner and the same was being transported to Calcutta. The truck and burnt coal were seized by the informant On the basis of the aforesaid allegation, Chirkunda P. S. Case No. 94/1985 was registered, a copy of which is Annexure-1 appended to this application.

3. According to the petitioner's case, he was running a business under the name and style of M/s. K. K. Enterprises and the said firm was awarded contracts for lifting of kiln burnt ash by M/s. Sharad Refractories, M/s. Associated Ceramics Pvt. Ltd. and M/s. Chirkunda Ceramic Works. As per the terms of the aforesaid contracts, the petitioner had to arrange for removal of the said burnt ash within 2 to 3 days of each firing and the petitioner was offered a flat rate of Rs. 200/- to Rs. 225/- per kiln for the same. According to his case, the truck in question was being landed with such burnt ash and no offence whatsoever has been committed by him.

4. It was submitted on behalf of the petitioner that the burnt ash is not coal within the meaning of the provisions of law prevailing in the country and, in any view of the matter, there was no restriction on movement of even coal under the Bihar Trade Articles (Licences Unification) Order, 1984 (for short 'the Unification Order, 1984') so as to attract the penal provisions of section 7 of the Essential Commodities Act (for short 'the E C. Act').

5. The facts which led to the tiling of Cr. Misc. No. 4715/1986 (R), in short, are that on 20.4.1985 on secret information, the Officer Incharge of Gobindpur Police Station learnt that one Pradip Kumar was running a coal depot in illegal manner. He raided the depot and found that two trucks were being loaded with coal. It was stated in the F. I. R. that on enquiry, the persons present there, disclosed that the coal have been loaded from the depot of the aforesaid Pradip Kumar who had taken the depot on rent from the petitioner without any licence.

6. It was submitted on behalf of the petitioner that in the F. I. R. neither the petitioner was named nor there was any allegation against him and no offence has been committed by him as alleged by the prosecution.

7. From the statements mare in this application, it appears that the petitioner also challenged the vires of the provisions of the Unification Order, 1984 in the Calcutta High Court where some interim order of stay was passed and the petitioner was allowed to carryon business whatsoever licence. Therefore, no offence whatsoever has been committed by the petitioner.

8 Common plea has been taken on behalf of the petitioners by the learned counsel appearing on their behalf. In any event on the alleged date of occurrence ill both the cases, the storage limit of coal had not been fixed and, in that view of the matter no offence, whatsoever, has been committed by the petitioners of both these applications even if the allegations made in the F. I. R. are taken to be correct in its entirety. Therefore, the entire prosecution is misconceived and fit to be quashed.

9. In Cr. Misc. No. 3201/1985 (R), the date of occurrence is 5.6.85 whereas in Cr. Misc. No. 4715/1986 (R) the date of occurrence is 20.4.85. It was pointed out by the learned counsel that in Cr. Misc. No. 3201/1985 (R), it has been stated in the F.I.R. that there has been violation of provisions of Bihar Coal Control Order, 1956 which was already repealed and in Cr. Misc. No. 4715/1986 (R), nothing