IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48421 of 2007 BINOD SINGH @ BINOD KUMAR SINGH Versus THE STATE OF BIHAR ----------- 03 20.02.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order of cognizance dated 16.1.2006 under Section 7 of the Essential Commodities Act passed by the Sub-Divisional Judicial Magistrate-in-charge, Bikramganj in Nasriganj P.S. Case No. 55 of 2005. The allegations are that a surprise inspection was carried out on 1.5.2005 of the shop premises of the petitioner. The shop was found open on a Sunday. The stock register reflected receipt of 12,000/- liters of Kerosene Oil, when on enquiry, it was found that 12,000/- liters of Kerosene Oil was, in fact, received by a lorry on 1.5.2005 standing in the premises with the Kerosene load. The stock register dated 30.4.2005 showed stock of 28,012 liters of Kerosene Oil. The sale columns were not filled up. The stock register of 30.4.2005 reflected sale of 25301/- liters of Kerosene Oil which should have left stock balance of 2702/- liters of Kerosene Oil. Out of 12,000/- liters of Kerosene Oil in the lorry, 1384/- liters of Kerosene Oil were found in the underground tank. The submission is that the petitioner is a whole-sale stockist of Kerosene Oil appointed by the Government having License No. 7 of 1996. Clause- 4 of Bihar Trade Articles (Licenses Unification Control) Order, 1984 visualizes grant of licenses thereunder, both to - 2 - whole-sellers and retailers. This is further reflected in Clause-8, (3) (b) that one of the grounds for refusing the whole-sale licenses under the Act was possession of a retailer license for the same Trade Articles. Reliance was then placed on Clause-31 (2) (c) of the Order to urge that prosecution of a Public Distribution System dealer, appointed by the State government as its agent, was not permissible. This Court in more than one judgment has held that no prosecution was maintainable under the aforesaid Order against a retail-dealer appointed by the State Government. There was, therefore, no difference in the applicability of Clause-31 (2) (c) between a whole- sale dealer and retail dealer appointed under the same ‘order’ and both were entitled to the same protection. The Bihar Trade Articles (Licenses Unification Control) Order, 1984 was replaced by the Fair Price Order Distribution Control, 2001 by the Public Distribution System Control Order, 2001. A notification was required by the State Government under Clause-10 with regard to the enforceability of the same in the State of Bihar and which has been issued on or after 20.2.2007. The F.I.R. having been lodged on 2.5.2005. If the Trade Articles (Licenses Unification Control) Order, 1984 was also deemed to be applicable before enforcement of the former, the petitioner is exempted from prosecution by virtue of Clause 31 (2) (c) and if the Public Distribution System Control Order, 2001 be applicable, it was unworkable till 20.2.2007, in the State of Bihar in absence of the necessary notification for its enforcement. Learned counsel for the State submits that these are issues - 3 - of fact, to be decided during the trial itself. Learned counsel for the petitioner has rightly urged that the Trade Articles (Licenses Unification Control) Order, 1984 visualizes both, grant of a Whole-sale license and a retail license. The difference only lies in the stock nature of the business carried out and the limits of the stock permitted. Both have the nature of being an agent of the Government though with different capacities. The Court holds that a whole sale licensee appointed under the Bihar Trade Articles (Licenses Unification Control) Order, 1984 is entitled to the same protection as granted to a retail licensee under Clause 31 (2) (c) making his prosecution thereunder unsustainable The First Information Report has been lodged on 2.5.2005. On that date the Trade Articles (Licenses Unification Control) Order was not applicable due to the promulgation of the Price Distribution Control Order, 2001 and which also in its turn was unworkable in absence of necessary notification by the State Government for its enforcement issued only on 20.2.2007. There was thus no law in the interregnum on which the petitioner can be prosecuted. In the result, the prosecution of the petitioner in connection with Bikramganj in Nasriganj P.S. Case No. 55 of 2005 is quashed. The application stands allowed. P.K. (Navin Sinha, J.)