( 1 ) PETITIONERS by filing the instant application under Section 482, Section 397 and Section 401 of the Criminal Procedure Code sought for quashing of the charge-sheet being No. 67 of 2005 dated 29. 06. 2005 under Sections 413 and 414 of the Indian Penal Code relating to Magra Police Station case No. 48 of 2005 dated 24. 04. 2005.

( 2 ) GRIEVANCES of the petitioners, as ventilated in the instant application, may briefly be stated as follows : -One Anil Kumar Saha, Sub-Inspector of Police, Magra Police station lodged a complaint on 24. 04. 2005 wherein he alleged that the two vehicles being WB 15-0405 and WB15a-1792, both loaded with stolen raw coal were waiting on Byepass Road near Gaja ghonta. He got secret information in this regard and found the said two vehicles were parked by the side of the road. The drivers of the said vehicles could be apprehended after a chase and on being asked to produce relevant documents in support of such transportation of coal, they failed to produce the same. They told that such coal was taken from one, Kamal Das of Hosenabad, who was habitually dealing with such stolen raw coal at Hosenabad depot. The said drivers were arrested and the two vehicles loaded with coal were seized by Police authorities. On the basis of such written complaint the case being Magra P. S. Case No 18 of 2005 dated 24. 04. 2005 under Sections 413 and 414 of Indian Penal Code was started.

( 3 ) THE petitioners claimed that they were in no way connected with the commission of the said offence and the coal was being carried with valid documents as would be evident from the challans issued by m/s. Maa Tara Coal and Coal Dust Traders. The said two vehicles were proceeding towards Rajeswaripur, Magra, Hooghly for supply to M/s. Rupantar Brick Field.

( 4 ) THE petitioner No. 1 is running the business of coal and coal dust under the name and style of M/s. Maa Tara Coal and Coal Dust Traders. He has been running the said business with all valid documents and also been paying Sale-Tax and Value Added Tax for the purpose of dealing with the said business of coal and coal dust. The petitioners were never implicated earlier in respect of such offences under Sections 413/414 of indian Penal Code and there could be no reason for describing them as habitual offenders. After completion of investigation concerned Police authority submitted charge-sheet No. 67/05 dated 29. 06. 2005 in connection with the said Criminal case for the offences under Sections 413/414 of indian Penal Code.

The petitioners were granted anticipatory bail by the high Court by an order dated 29. 07. 2005 in C. R. M. No. 5752 of 2005. The seized trucks were also released. There was no material in order to establish that the petitioners were ever arraigned as accused persons for such offence earlier.

( 5 ) BEING aggrieved by and dissatisfied with the said charge-sheet dated 29. 06. 2005 the petitioners approached this Court with a prayer for quashing of the same.

( 6 ) LEARNED Counsel for the petitioners submitted that the investigating Authority could not produce any iota of material so as to suggest that the coal, which was loaded in the two vehicles, was stolen property. Attention of the Court was drawn to Section 379 of Indian Penal code which prescribes the punishment for the commission of the offence of theft. Section 378 defines the offence of theft. In order to constitute the offence of theft it is necessary on the part of the Investigating Authority to establish (a) that there was dishonest intention to take property, (b) that the property was moveable property, (c) that it was taken out of the possession of another, (d) that it was taken without the consent of that other, and (e) that there was removal of the property in order to accomplish the taken of it.

( 7 ) MR. Mukherjee, as learned Counsel for the petitioners, in course of his argument laid emphasis on the expression "habitually dealing in stolen property" in Section 413 of Indian Penal Code.

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