Heard Mr. N.K. Agarwal, Senior Advocate for the petitioners in both the cases namely, Criminal Miscellaneous No. 16443 of 2008 and Criminal Revision No. 707 of 2007. The State is being represented by Mr. Jharkhandi Upadhayay.

2. In both the aforesaid cases, the order dated 23.04.2007 passed by the learned Chief Judicial Magistrate, Purnea whereby cognizance has been taken under Sections 420, 421, 467, 468, 471, 414 of the Indian Penal Code and Section 7/8 of the Essential Commodities Act, has been challenged.

3. A case was lodged by the Project Executive Officer, Purnea alleging that on secret information that fake fertilizer is being sold or about to be sold, a raid was conducted. A truck loaded with fertilizer, was intercepted and it was found that the fertilizer was not of standard quality and some of the bags which were found loaded on the truck were not even of the company, claiming to be the manufacturer of such fertilizer. Some of the bags were found to be double stitched, giving an impression that the bags were tampered with for re-filling them with fake fertilizer. It was therefore, inferred by the informant that under the cover of genuine fertilizer bags, fake fertilizer was also being sold. The driver of the vehicle showed Challans suggesting that the fertilizers were sold by the petitioners of Criminal Miscellaneous No. 16443 of 2008 and were purchased by the petitioner of Criminal Revision No. 707 of 2007.

4. The first information report referred-to-above led to institution of a case vide Purnia Sadar P.S. Case No. 354 of 2006 dated 4.11.2006 under various sections of the Indian Penal code and Section 7/8 of the Essential commodities Act which was for the violation of the Fertilizer (Control) Order. The police after investigation submitted final report “false” as against the petitioners. However, the driver of the truck and another person were sent up for trial.

5. Learned Chief Judicial Magistrate, Purnia vide order dated 23.04.2007 differed with the police report and took cognizance against the petitioners as well alongwith the persons, who were sent up for facing trial.

6. Learned counsel for the petitioners submits that the very fact that the claim of the fertilizer was allowed by this Court, is an evidence of the fact that the petitioners deal with the fertilizer for which they had valid license. The bags of fertilizer which were not sold by the petitioners in Criminal Miscellaneous No. 16443 of 2008, which bags were found alongwith the bags of fertilizers actually sold, the petitioners could not have been saddled with any responsibility. Such grounds are also, as argued by the counsel for the petitioners, available to the petitioner of Criminal Revision No. 707 of 2007 who is the purchaser of the bags of fertilizers.

7. Learned counsel for the petitioners further submits that if the driver of the vehicle or any other person loads unauthorized bags of fertilizers in the same vehicle, that ought not to entail any criminal action against the seller-dealer or the purchaser-dealer. Let it also be noticed that the bags of fertilizer which were not sold under the challan by the petitioners of Criminal Miscellaneous No. 16443 of 2008, were not even claimed by them at any point of time. There is no allegation that the fertilizer which was sold and was loaded on the truck, to be transported to the purchaser, for which a challan was issued was of any sub-standard quality and/or of apocryphal origin.

8. In absence of any material leading to any inference, the petitioners in both the aforesaid applications, cannot be said to have committed any criminal offence. The order of cognizance therefore, cannot be sustained in the eye of law.

9. Perused the order impugned. There is nothing on record to suggest that the petitioners, were hand-in-gloves with the driver of the vehicle who was transporting the bags of fertilizer to the purchaser, who also is a dealer of fertilizer. The driver of the vehicle as stated by