IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26684 of 2009 SATENDRA KUMAR Versus STATE OF BIHAR ----------- 03 29.03.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is a P.D.S. dealer. He is aggrieved by his prosecution in Triveniganj P.S. Case No. 169 of 2008 and the order of cognizance dated 7.12.2009 under Section 7 of the Essential Commodities Act and Section 379 of the I.P.C. The allegations are that the petitioner as a P.D.S. dealer at 8:30 P.M. was transporting food- grains given to him for distribution under the public distribution system with intention for black marketing, which was intercepted by the villagers. The villagers started to loot his food-grains, when the petitioner dumped the food-grains and ran away with his tractor and trailor. Learned counsel for the petitioner is right in his submission that of reading the allegations as they are, there was no occasion for the Court to take cognizance against him under Section 379 I.P.C., when the F.I.R. itself states that the provisions of the Penal Code were being invoked 2 against the unknown villagers, who allegedly stole and ran away with the food-grains of the petitioner and he dumped the same running away with his tractor and trailor. Learned counsel for the State finds it difficult to support the proceedings and the order of cognizance against the petitioner insofar as Section 379 I.P.C. is concerned. In absence of any allegations against the petitioner in the First Information Report to invoke Section 379 I.P.C. against him, when it is his grains which are alleged to have been looted by others, the entire proceedings and the order of cognizance against him under Section 379 I.P.C. is not sustainable. The proceedings and the cognizance is, therefore, quashed against him to that extent. The next submission on behalf of the petitioner relying upon two orders of this Court in Cr. Misc. No. 6695 of 2008 and Cr. Misc. No. 42675 of 2007 is that there can be no prosecution on apprehension of black marketing as it was based on conjectures and surmises. Moreover, prosecution of a public distribution system dealer was prohibited under Clause-31 (2) of the Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter 3 referred to as the Unification Order). Counsel for the State rightly points out that the Unification Order has been replaced by the Public Distribution System Control Order, 2001 but the notification by the State Government for enforcement thereof has been issued only on 25.5.2006 applying the same in the State. The defence available earlier under Clause-31(2) of the Unification Order is no more available. In the present case the F.I.R. has been lodged on 1.9.2008 long after the gazette notification dated 25.5.2006. Protection was, therefore, available only in between period 2001 to 25.5.2006. That aspect does not appear to have been considered in detail in Cr. Misc. No. 42675 of 2007 distinguishing it from the present case. The allegations are of transporting food- grains as a Public Distribution System Dealer at 8:30 P.M in the night. At 8:30 P.M. food-grains of a Government scheme cannot be stated outright to be a transportation being done in normal business hours so as to invoke the defence of an allegations of conjectures and surmises. The petition does not even make a whisper of a suggestion that no transportation was being done by the petitioner at 4 the unearthly hour at 8:30 P.M. That distinguish the case of the petitioner from Cr. Misc. No. 6695 of 2008 when this Court proceeded on the assumption that there was nothing to demonstrate that the petitioner was actually indulging in black marketing merely by reason of transportation. If food-grains were being transported by a Public Distribution System dealer during a period which was not surely business hour, the rest becomes his matter for defence to be decided in the trial. The application is dismissed with regard to the prosecution under the Essential Commodities Act. P.K. (Navin Sinha, J.)