The necessity of a notification/order under section 3 of the Essential Commodities Act for prosecution and subsequent conviction under section 7.

JUDGMENT :

1. The present petition has been filed by the petitioner under section 561-A Cr.P.C. (now 482 Cr.P.C) for quashing the order dated 08.10.2012 passed by the Principal Sessions Judge, Jammu (hereinafter to be referred as the revisional court) by virtue of which order dated 15.02.2011 passed by the learned Chief Judicial Magistrate, Jammu (hereinafter to be referred as the trial court) discharging the petitioner, was set aside.

2. The present petition has been filed primarily on the ground that there is no order as envisaged under section 3 of Essential Commodities Act that has been contravened by the petitioner and further when the prosecution has not placed on record any such order, the petitioner cannot be prosecuted for the commission of the said offence and convicted under section 7 of the Essential commodities Act.

3. Mr. Dheeraj Choudhary, learned counsel for the petitioner vehemently argued that that no order within the meaning of section 3 of Essential Commodities Act was placed on record by the Investigating Officer along with the challan and that is why the petitioner was discharged for the commission of offence under sections 3/7 of the Essential Commodities Act and the learned revisional court illegally set aside the order passed by the trial court and observed that the trial court should have granted further time to prosecution to place on record such order. He further submitted that even despite repeated opportunities, no such notification/order has been placed on record the violation of which has been claimed by the respondent, to have been made by the petitioner.

4. Mr. Aseem Sawhney, learned AAG submitted that the learned revisional court has rightly passed the order dated 08.10.2012 and there is no illegality in the order impugned.

5. Heard learned counsel for the parties and perused the record.

6. The allegation against the petitioner is that on 31.05.2008, SHO, Police Station Jhajjar Kotli along with police party was on the patrolling duty in a Government vehicle at Kah Fota area and during patrolling, SHO received information from the reliable sources that the petitioner is indulging in illegal sale of diesel and is earning undue profits and that the petitioner was having in his possession diesel in his Karyana shop. On the basis of said information, the SHO along with police party raided the shop of the petitioner and in the shop five plastic gallons containing about 100 liters of diesel were found. As such, the petitioner by keeping in his shop 100 liters of diesel for illegal sale has committed offence under sections 3/7 of the Essential Commodities Act. Thereafter, FIR bearing No. 57/2008 under sections 3/7 of Essential Commodities Act was registered at Police Station, Jhajjar Kotli. During the investigation, five plastic gallons of 20 liters capacity containing about 100 liters of diesel were seized. After completion of the investigation, the Investigating Officer proved the offences under sections 3/7 of the Essential Commodities Act against the petitioner and thereafter the challan was filed.

7. As the respondent did not place on record any notification/order under section 3 of the Essential Commodities Act, so the petitioner was discharged of the said offences vide order dated 15.02.2011. The respondent preferred revision petition against the said order of the trial court and the revisional Court vide order dated 08.10.2012 set aside the said order and directed the trial court to frame charges against the petitioner for commission of offences under sections 3/7 of the Essential Commodities Act. The revisional court also observed that the trial court should have granted some time to the prosecution to trace the said notification.

8. Thus, it is clear that the notification was neither submitted before the trial court nor before the revisional court and also no such notification/order purported to be issued under section 3 of the Essential Commodities Act, has been placed on record before this Court