JUDGMENT

B. K. PATEL, J. — On receipt of the prosecution report from the Marketing Inspector of Patrapur, cognizance of offence under Section 7 of the Essential Commodities Act (in short ‘the Act’) was taken by the learned J.M.F.C., Patrapur and processes were issued against four accused persons including the present petitioner on 22.1.2004 in 2(C) C.C. No.1 of 2004. It appears that the petitioner approached this Court previously in CRLMC No.708 of 2004 challenging the order of cognizance and issuance of process to her on behalf of M/s. Jagannath Traders. By order dated 8.4.2004, this Court in CRLMC No.708 of 2004 directed that if the petitioner would file an application before the J.M.F.C., Patrapur for reconsideration of the cognizance order, learned Magistrate shall consider the same on its own merit and pass necessary orders. In accordance with the direction of this Court, the petitioner filed a petition before the learned Magistrate praying to recall the order of taking cognizance. By the order dated 3.1.2005 impugned in this application, the petition for recalling the order of cognizance was rejected mainly on the ground that the learned Magistrate has no jurisdiction to review the order of taking cognizance.

2. It further appears that though the present application was filed on 17.1.2004 and, thereafter, by order dated 7.2.2005, order staying further proceeding in 2(C) C.C. No.1 of 2004 was passed, on 3.2.2005 evidence of P.W. 1, Chakradhar Barik was recorded by the learned Magistrate in course of which he was cross-examined on behalf of the defence also. Thereafter, on 10.2.2005, charge under Section 7 of the Act was framed against the accused persons including the present petitioner. The order of stay passed by this Court on 7.2.2005 appears to have been received by the learned Court below on 24.2.2005.

3. In support of the present application, it is contended by the learned counsel for the petitioner that there is no mate¬rial whatsoever to implicate the present petitioner with the commission of the alleged offence of illegal transaction in kerosene oil and thereby violating the provisions of the Orissa Public Distribution System Control Order, 2002. During pendency of this application, Shri Chakradhar Barik, Marketing Inspector, Patrapur, who filed P.R. was required to be filed an affidavit indicating the materials implicating the present petitioner with the alleged offence. Admittedly, M/s. Jagannath Traders, repre¬sented by the present petitioner, is the wholesaler of kerosene oil in the locality. However, in the affidavit filed on 22.2.2005, said Chakradhar Barik has not made any averment implicating the present petitioner with the alleged offence. It has been simply stated that from the statement of one Tutu Panda and another Balalasan Panda, it was inferred that the petitioner and the ac¬cused persons had indulged in black marketing in P.D.S. in open market at higher price without any authority of law. The above said Tutu Panda and Balalasan Panda have not been cited as witnesses in the prosecution report though, in the prosecution report, their statements have been cited to be relied upon as documentary evidence. It appears from the statements of the above two persons and report dated 31.8.2007 of Marketing Inspector, Patrapur Block, copy of which has been annexed as Annexure-2 to the present application, that Tutu Panda and Balalasana Panda have not made any allegation against the present petitioner. They appear to have stated to have lifted the kerosene oil stock from Sub-wholesale dealer co-accused Harish Ch. Pati as per the instruction of the co-accused Trinath Subudhi and transported the kerosene oil to Patrapur village. Thus, in spite of an opportuni¬ty being given to the officer, who submitted the prosecution report in the case against the present petitioner and others, no material is brought to the notice of the Court on the basis of which the present petitioner could be said to have been implicat¬ed i