The necessity of a valid notification under Section 3 of the Essential Commodities Act to support a charge under Section 7, and the importance of a thorough investigation to ensure the prospect of a conviction.

1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), petitioner seeks quashing of the order dated 21.05.2011 passed by Special Judicial Mobile Magistrate (Excise), Jammu by virtue of which petitioner has been charge-sheeted under Section 7 read with Section 3 of the Essential Commodities Act, on the ground that the said order is contrary to the facts and circumstances of the case.

2. In the petition, it has been stated that petitioner was holding a valid license issued by the Agricultural Department for sale of fertilizer. It is stated that 38 bags of DAP fertilizer were seized by the Police which were procured by petitioner from the J&K State Agro Industries Development Corporation against payment vide receipt dated 04.10.2010. The further case of the petitioner is that no seizure was made by the Police in respect of material which was allegedly said to be sold by the petitioner on higher rate. The documents seized by the Police from the petitioner do not indicate that any material/fertilizers were sold by the petitioner on higher rate than the rate fixed by the Government to the complainant. It is further stated that the allegations leveled in the FIR and Challan do not disclose any cognizable offence.

3. I have considered the submissions made by the counsel for the petitioner.

4. The brief facts of the case are that, on 11.11.2010 complainant-Subash Chander lodged a written complaint in the Police Station, Gharota, stating therein that petitioner, who is running a store at Village Jandiyal Thathi for sale of fertilizers is charging a sum of Rs.550/- per bag, whereas the maximum retail price fixed by the Government is Rs.523/-; that petitioner is selling the fertilizer bag at a higher rate. On the basis of this, an FIR No. 97/2010 under Sections 420 RPC and 3/7 of the Essential Commodities Act, was registered with the Police Station, Gharota. After completing the investigation, the challan was produced before the court below. The court below after hearing the arguments, framed the charge under section 3/7 of the Essential Commodities, Act against the petitioner/accused on 21.05.2011.

5. I have carefully gone through the Challan and other material collected by the Investigating Agency during the investigation.

6. In brief the prosecution case is that petitioner/accused has charged the cost of fertilizer at the rate Rs.550/- per bag instead of Rs.523/-; but in record there is no such receipt or any other documentary evidence from where it can be inferred that accused/petitioner has charged Rs.550/- as cost of fertilizer per bag instead of Rs.523/-. During the investigation, the police has seized unsold 38 bags of DAP Fertilizer, which were lying in the shop of the petitioner, and not sold bags allegedly sold @ Rs.550/- per bag.

7. Petitioner has been booked u/s 3/7 of E.C Act. For deciding the case in hand, Sections 3 & 7 are reproduced hereunder:-

“Section 3. Powers to Control Production, Supply, Distribution, Etc. of Essential Commodities.

(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [12 or for securing any essential commodity for the defense of India or the efficient conduct of military operations 12], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made there under may provide,-

(a) for regulating by licenses, permits or otherwise the production or manufacture of any essential commodity;

(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintainin