Patna High Court – Orders
Radhe Shyam Yadav @ Bhola Yadav vs The State Of Bihar , Through The District … on 20 January, 2026
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.29179 of 2019
Arising Out of PS. Case No.-359 Year-2018 Thana- ALOULI District- Khagaria
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RADHE SHYAM YADAV @ BHOLA YADAV Son of Late Bhuneshwar
Yadav Resident of Village - Pokhra, P.S.- Allouli, District - Khagaria
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR , THROUGH THE DISTRICT MAGISTRATE,
KHAGARIA. Bihar
2. The Block Supply Officer, Allouli Block, District - Khagaria. Bihar
3. Bihar State Food and Civil Supplies Corporation, Khagaria through its
Manager Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ajay Prasad, Advocate
For the State : Mr.Jharkhandi Upadhyay, A.P.P.
For the B.S.F.C. : Mr. Niraj Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
4 20-01-2026
Heard the learned counsel for the petitioner, the
learned APP for the state and the learned Counsel for the
B.S.F.C.
2. The present application has been filed for
quashing of the order dated 10.12.2018, whereby the learned
court has taken cognizance under section 420, 467 read with
section 34 of the Indian Penal Code and section 7 of the
Essential Commodities Act,1955 in connection with Allouli P.S.
Case No.359 of 2018.
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3. As per the prosecution, on 08.10.2018,
Allouli Police seized a truck bearing no. HR69D0555 loaded
with rice in the light of Memo No. 434 and brought the same to
the police station. Subsequently, on conducting search, some
documents and rice of Durga Rice Mill was found in the truck
and the driver of the truck could not be traced. Later the
proprietor-petitioner was asked for presenting the documents
relating to the rice loaded on the truck, which the petitioner was
not able to produce, and it was disclosed by the petitioner that
the rice was for sale. It was alleged that the seized rice was
government rice and the petitioner being proprietor has shown
invoice bill that the said rice was parmal rice and the same was
alleged to have been taken for black marketing and therefore the
loaded 402 quintal of arwa rice and the truck in question was
seized. Accordingly, a FIR was instituted against one unknown
truck driver and the petitioner-Radhe Shyam Yadav on the basis
of written report of the informant Ajay Kumar, Block Supply
Officer, Allouli.
4. Learned counsel for the petitioner submits
that the petitioner has valid document, registered for running
rice mill and he has purchased paddy from P.A.C.S and in spite
of giving the relevant papers to the local police, the petitioner
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has been falsely implicated in the present case.
5. It is the categorical submission of the learned
counsel for the petitioner that rice is not an essential commodity
as per notification by the Central Government and therefore the
provisions of the Essential Commodities Act, 1955 are not
attracted. Further, it is submitted that the sale of rice does not
come under the Control Order and that no confiscation
proceedings has been initiated against the petitioner.
Particularly, it is the submission that arwa chawal is not an
essential commodity and there is no price fixation on it and
therefore, there is no question of black marketing of arwa rice.
Despite the aforesaid, it is the submission of the learned counsel
for the petitioner that the rice of the petitioner is seized from the
truck which is perishable in nature. The seizure of the perishable
rice of the petitioner without strictly adhering to the procedural
requirements is also unsustainable and therefore liable to be set
aside.
6. It is pointed out by the learned counsel that
the seized rice as well as seized truck has already been released
by a coordinate bench of this Court vide order dated 06.03.2019
passed in C.W.J.C. No. 3968 of 2019 and order dated
11.03.2019 passed in C.W.J.C. No. 4306 of 2019, respectively.
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7. The learned APP for the State has opposed
the prayer of the petitioner.
8. I have heard and considered the submissions
of the parties and have perused the materials available on
record.
9. From the reading of the F.I.R it appears that
the truck and the rice of the petitioner was seized by the Supply
Officer, Allouli, on the suspicion of black-marketing.
10. It appears that the arwa rice, which has been
seized from the truck for the reason that petitioner could not
produce the paper of sale and purchase of food grains, and
therefore, it was suspected that seized rice is a Government
subsidized rice.
11. Pertinently, rice has been removed from the
ambit of Section 3 of the Essential Commodities Act, 1955 by
the Central Government vide Removal of (Licensing
Requirements, Stock Limits and Movement Restrictions) on
Specified Foodstuffs Order 2002.
12. From the perusal of the materials on record it
is clear that, there is no material even prima facie that the seized
rice is government subsidized rice.
13. This Court in the case of Shriram Rai v.
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State of Bihar, reported as 2006 SCC OnLine Pat 4 has held as
under –
3. Mr. Y.V. Giri, Senior Advocate, appearing on behalf
of the petitioners contends that no order made under
section 3 of the Essential Commodities Act restricts
movement of rice from one place to another and, as
such, petitioners cannot be said to have violated any
order made under the aforesaid provision to bring
the act within the mischief of Section 7 of the
Essential Commodities Act. In support of his
submission he has placed reliance on a Division
Bench Judgment of this Court in the case of Santosh
Kumar v. State of Bihar, [1990 (2) PLJR 520] and
my attention has been drawn to paragraph 9 of the
judgment, which reads as follows:–
“It is painful to note that the
authorities who are the custodians of
law and order are not acquainted
with the latest position of law. The
said Movement Control Order for the
violation of which the petitioner has
been put to harassment, was
rescinded as far back as on 30th
September, 1977. In that view of the
matter the entire prosecution seems
to be without any legal foundation
and it is fit to be quashed at this
stage.”
4. Reliance has also been placed on a decision of this
Court in the case of Tarapado Ghosh v. State of
Bihar, [1990 (2) PLJR 602] and my attention has
been drawn to the following passage from
paragraph 5 of the judgment:–
“The Bihar Food grains (Movement
Control) Order, 1957 had been in
operation for several years but this
Control Order was rescinded with
effect from first day of October, 1977
by the Central Government’s
Notification No. S.O. 696(E) 30th
September, 1977. This fact is
accepted by the learned State
Counsel. Therefore, admittedly
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April to June, 1978 there was no
Control Order under the Act to
restrict the movement of food grains
from Bihar to any outside place. It
follows, therefore, that if pulses were
booked from any place in Bihar,
which in the present case is Chapra,
to any destination outside the State
no offence arises on this account.”
xxx
6. Having appreciated the rival submission, I find
substance in the submission of Mr. Giri and the plea
of ignorance put forth by the District Supply Officer
is a pretence. From the allegation made in the First
Information Report, it is evident that supply is being
made at the purchase Centres of the State Food
Corporation through the middle men and not by the
farmers for whom the scheme was launched and this
according to the informant constitute offence under
section 7 of the Essential Commodities Act.
However, when a challenge is made, the plea of the
Informant is that due to ignorance under a bona fide
belief he got the case registered on the ground of
violation of the Unification Order, but later on he
came to know that food grains have been deleted by
notification issued prior to the date of seizure. Thus,
whole emphasis of the informant is to show his bona
fide in lodging the First Information Report but
nothing has been said to demonstrate that the
allegations made constitute any offence. In that view
of the matter, I am of the opinion that the allegation
made does not constitute any offence and hence,
prosecution of the petitioner shall be in abuse of the
process of the Court.
7. To put the record straight, Dr. Jha, points out that by
notification dated 11.2.2002 food grains were
deleted from the Unification Order but by
notification dated 25th of October, 2005 the
aforesaid notification deleting food grains was
modified and food grains excluding subsidised food
grain to be distributed through PDS Shops and
Purchase, sale as well as storage of food grains
through Government a/c was deleted. The
amendment reads as follows:–
Patna High Court CR. MISC. No.29179 of 2019(4) dt.20-01-2026
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mentioned order, the word
and bracket (Food grains)
(Excluding subsidised
foodgrains to be distributed
through PDS Shops and
Purchase, sale as well
storage of food grains
through PDS Shops and
Purchase, sale as well
storage of food grains
through (Government A/C)
used in Schedule I are hereby
deleted. Prior notification
may kindly be treated as
revised to this extent.”
8. He points out that the food grains of the Public
Distribution System therefore, is covered by the
Unification Order. This in no way advances the case
of the Opposite Party. It is not the allegation that
the foodgrain seized from the petitioners is in any
way connected or belonged to the Public
Distribution System or is from the Government
account. Thus, in my opinion, allegations made
against the petitioners do not constitute any offence
and hence, the prosecution of the petitioners shall
be an abuse of the process of the Court. It is fit case
in which jurisdiction under section 482 of the Code
of Criminal Procedure is fit to be exercised to quash
the prosecution.”
14. Thereafter a coordinate Bench of this Court
in the case of Ram Sagar Choudhary vs The State of Bihar &
Anr. reported as 2024 (3) PLJR 744 had held as under –
“6. This Court, in various judgments consistently held
that FIR under Section 7 read with Section 420 of
the I.P.C. cannot be instituted because of the
promulgation of the removal order (R/O) of 2002
which came into effect on and from 15.02.2002.
7. Some of the unreported decisions of this Court are
as follows:-
(i) Cr. Misc. No. 11049 of 2021 ( Naresh Sah vs.
State of Bihar & Anr.) decided on 19th May,
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(ii) CWJC No. 2245 of 2017 (Sandip Kumar
Jaiswal @ Sandip Jaiswal vs. The State of
Bihar and others) decided on 26.07.2018.
(iii) 2006 SCC Online Pat. 4 (Sriram Rai and
Anr. vs. the State of Bihar and others)
decided on 02.01.2006.
8. This Court is in conformity with the decisions made
by the Co-ordinate Bench mentioned hereinabove.
9. In view of such circumstances, the FIR was
maliciously instituted on the ground of mala fide by
the respondents and even if the FIR is taken at its
face value, it does not establish a case under Section
7 of the Essential Commodities Act.
10. Accordingly, FIR in connection with Parbatta P.S.
Case No. 108 of 2018 under Section 7 of the
Essential Commodities Act is quashed and set aside.
The criminal case instituted against the petitioner be
dropped.
11. The instant writ application is, accordingly, allowed
on contest. There shall, however, be no order as to
costs.”
15. This Court finds no reason to disagree with
the afore-quoted decision of the Coordinate bench of this Court
in Ram Sagar Choudhary (supra).
16. Considering the fact that the rice as well as
the truck seized does not attract section 7 of the Essential
Commodities Act and upon mere suspicion the prosecution has
been launched against the petitioner which is wholly
impermissible. The continuance of the criminal prosecution
despite even a whisper of material to suggest black-marketing
would amount to abuse of the process of court and therefore
impermissible.
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17. Accordingly, the impugned order taking
cognizance dated 10.12.2018, passed by the learned S.D.J.M
arising out of Allouli P.S. Case No.359 of 2018 is quashed and
set aside qua the petitioner.
(Sandeep Kumar, J)
tusharika/-
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