IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42584 of 2007 JAWAHAR PRASAD @ JAWAHAR SAH, SON OF LATE PRITHVI CHAND SAH, RESIDENT OF VILLAGE-ROUTA BANSI, P.S. SOUR BAZAR, DISTRICT-SAHARSA. ……………………………………………………………………………………..PETITIONER. Versus THE STATE OF BIHAR…………………………………………………OPPOSITE PARTY. ----------- For the Petitioner : M/s. N.K. Agrawal, Senior Advocate, D.N. Tiwari and Saket Tiwari, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ---------------- O R D E R 2. 05.01.2009 It is a matter of great consternation that notwithstanding the catena of decisions of this Court succinctly laying down in emphatic terms and reiterating the immunity that is available to the dealers under the Public Distribution System (hereinafter referred to as “the PDS dealers”) from prosecution in view of clause 31(2) of the Bihar Trade Articles (Licences Unification) Order, 1984, the Supply Officers of all categories in the State of Bihar remain either immune thereto or are deliberately remiss thereof and continue to initiate proceedings against PDS dealers with impudence. The petitioner herein, a PDS dealer, facing such tribulation has prayed for the quashing of the order dated 20.06.2007 passed by the learned Sub-Divisional Judicial Magistrate, Saharsa, in Sour Bazar P.S. Case No.236 of 2006, whereby he has taken cognizance against the petitioner under Section 7 of the Essential Commodities Act (“the E.C. Act” for short). 2 According to the prosecution case, the informant, the Block Supply Officer, Sonbarsa, on directions from the Sub-Divisional Officer, Saharsa, to enquire into the seizure of 29 bags of rice kept at the Police Station held the desired enquiry and came to learn that the said bags had been brought to the Police Station by the A.S.I from Routa Bhapatiya Road where they were found loaded on two tamtams. He also learnt that the bags did not belong to the F.C.I. and were stitched manually which led him to form a presumptive opinion that the bags had been changed with a view to sell the contents thereof in the black market. The tamtam wallas in course of interrogation are said to have disclosed that the said rice had been loaded at the P.D.S shop of the petitioner. Admittedly the Central Government promulgated the Public Distribution System (Control) Order, 2001, with effect from 31.8.2001 and Clause 14 thereof superseded all orders controlling PDS dealers. However, the same was held by a Bench of this Court in Maheshwar Prasad V. State of Bihar, reported in 2007(2)PLJR 103, to be not workable in Bihar till June, 2006. However, the provisions of the 2001 Order became enforceable only when the State Government, in view of Clause 7 thereof, promulgated the Public Distribution System (Control) Order 2007 on 20.2.2007. As such, in effect the said Order became operational only from 20.2.2007. In the instant case, the occurrence is said to have taken place on 1.11.2006 when the 2001 Order was not legally enforceable/operational. Therefore the protection available to a PDS 3 dealer was available to the petitioner. That apart the allegation against the petitioner is of diverting rice from his ration shop for presumed black marketing. But there is no Control Order regulating the trade or movement of rice in the State. In view of the discussions made in the foregoing paragraphs the impugned order and the prosecution of the petitioner is an abuse of the process of the court and is required to be quashed. Accordingly, the criminal prosecution of the petitioner is quashed and the application is allowed. P.S. (Abhijit Sinha,J)