IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4289 of 2008 DILIP KUMAR MISHRA Versus STATE OF BIHAR & ANR ----------- 3. 9.5.08 Heard Mr. Basi Ahmad Khan for the petitioner, and Dr. Maya Nand Jha, learned Additional Public Prosecutor for the opposite party. The sole petitioner has preferred this application under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), and seeks to challenge the order dated 24.12.2007, passed by learned Sub Divisional Judicial Magistrate, Biraul at Benipur in Tr. No. 1682 of 2007/G.R. No.245 of 2007( State of Bihar Vs. Dilip Kumar Mishra), whereby application under section 227 of the Code for his discharge has been rejected and the petitioner has been directed to stand his trial. Opposite party no.2, at the relevant point of time, was Block Supply Officer and had lodged the present First Information Report, alleging therein that the petitioner is the holder of license of 2 public distribution system. Complaints were being received of diversion of products supplied to him for retail sale. It is stated therein that he would borrow B.P.L.cards of the holders and misuse the same to divert the quotas meant for sale to them. These allegations lead to investigation, ultimately. Cognizance was taken on 12.6.2007 under section 7 of the Essential Commodities Act and the petitioner has been summoned to stand his trial. The petitioner thereafter filed an application under section 227 of the Code praying therein to discharge him which has been rejected by the impugned order. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the licencees of public distribution system are exempted from prosecution in terms of Clause 31 of the Bihar Trade Articles(Licences Unification) Order, 1984(hereinafter referred to as Unification Order). He relies on the judgment of the learned Single Judge of this Court reported in 2007(1) P.L.J.R. 714( Md. 3 Waizuddin Vs. The State of Bihar). He, therefore, submits that the impugned order is fit to be quashed. Learned Additional Public Prosecutor has supported the impugned order and submits that the aforesaid Clause 31 of the Unification Order has been deleted. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The Central Government has issued Public Distribution System (Control) Order, 2001, which was published in the Gazette of India(Extraordinary) dated 31.8.2001, and corrected vide G.S.R. 797(E) dated 23.10.2001, and G.S.R. 96(E) dated 11.2.2002. The preface of the same reads as follows:- "Whereas the Central Government is of the opinion that it is necessary and expedient so to do for maintaining supplies and securing availability and distribution of essential Commodities under the Public Distribution System; Now, therefore, in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government hereby 4 makes the following Order, namely.” It is thus manifest that the order has been promulgated to stream-line the functioning of Public Distribution System Clause 14 of the Unification Order reads as follows: “14.Provisions of the Order to prevail over previous Orders of State Governments.-The provisions of this Order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement.” It is thus evident that the aforesaid Clause 31 of the Unification Order has been deleted with effect from 31.8.2001. In that view of the matter, the petitioner is not entitled to get the benefit of Clause 31 of the Unification Order. Learned counsel for the petitioner has relied on the judgment of learned Single Judge passed in the case of Md.Waizuddin(supra). The aforesaid Order of 2001 was not brought to the notice of the learned Single Judge while 5 disposing of the case. It appears to me on a perusal of the F.I.R. that a prima facie case is made out against the petitioner under the provisions of law for the alleged violation of which cognizance has been taken. The petitioner has been rightly summoned. This application is dismissed. ( S. K. Katriar, J.) Vinay/