IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3335 of 2008 JAWAHAR MISHRA, SON OF LATE ALIKNATH MISHRA, RESIDENT OF VILLAGE-AASI, P.S. GHANSHYAMPUR, DISTRICT- DARBHANGA………………………………………………PETITIONER. Versus THE STATE OF BIHAR……………………………OPPOSITE PARTY. ----------- For the Petitioner : Mr. Sufiyan, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. -------------- O R D E R The sole F.I.R. named accused of Ghanshyampur P.S. Case No.75 of 2007 has prayed for the quashing of the order dated 29.10.2007 passed therein by the learned Sub-Divisional Judicial Magistrate, Biroul at Benipur, Darbhanga, whereby he has taken cognizance against the petitioner under Section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”). Briefly stated the prosecution case inter alia is that Jamun Mukhiya and others of Village Aasi lodged complaint before the Sub- Divisional Officer, Biroul and District Supply Officer, Darbhanga, alleging that the petitioner being a dealer under the Public Distribution System sold food grains in the black market and sold kerosene oil to the consumers at a higher price. Separate orders for enquiring into the allegations were made by the two officials and the Anchal Adhikari, Gaura Bauram having enquired into the matter found the allegations levelled against the petitioner to be partly correct and accordingly - 2 - submitted his report vide letter dated 15.4.2007 and on the basis thereof the Public Distribution System licence of the petitioner was suspended and the Block Supply Officer, Gaura Bauram, was directed to lodge F.I.R. vide letter dated 17.4.2007. It is submitted on behalf of the petitioner that never in his long career of 25-30 years as a dealer under the Public Distribution System has any complaint been made against him and the instant case is a concerted backlash to the complaint made by him and one Dinesh Mishra before the Additional Director General, Vigilance Bureau, Patna, in respect of the conduct and behaviour of the Marketing Officer, Biraul on 29.11.2006 and the instant case came to be registered on 20.4.2007. It was also submitted that being a dealer under the Public Distribution System he was protected from any prosecution under the E.C. Act being an Agent of the State Government. This application is bound to succeed on the following grounds:- 1) The date and time of the alleged inspection/enquiry has not been disclosed. 2) The petitioner being a dealer under the Public Distribution System was exempted from prosecution in view of the provisions of Clause 31(2) of the Bihar Trade Articles (Licenses Unification) Order. 3) It is well settled by now that for a prosecution - 3 - under Section 7 of the E.C. Act, it is necessary that the person concerned is alleged to have contravened some Order made under Section 3 of the E.C. Act controlling trade of any commodity. In the absence of such allegation a prosecution under Section 7 of the E.C. Act cannot be sustained. For the reasons stated above, this application has to be allowed and the criminal prosecution of the petitioner is hereby quashed being an abuse of the process of the court. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 23rd of January, 2009. Pradeep Srivastava/A.F.R.