IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31077 of 2008 Ajit Prasad S/O Late Mankeshwar Prasad, resident of village- Gopal Math, P.S. Thawe, District- Gopalganj ------------------ Petitioner Versus The State of Bihar ----------------- Opp.Party ----------- For the petitioner : M/S N.K.Agrawal, Sr.Advocate, and Vijay Anand, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. ------------- O R D E R 4 13-01-2009 The sole accused of Thawe P.S.Case no.36 of 2008 registered under Section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C.Act”) has prayed for the quashing of the entire proceeding arising therefrom. The Assistant District Supply Officer, Gopalganj filed a written complaint inter alia alleging therein that on 16.4.2008 he conducted investigation on the directions of the Sub Divisional Magistrate, Gopalganj , in connection with the distribution of kerosene oil and foodgrains under the “Antodaya Scheme” in the shop premises of the petitioner and found that the petitioner who is a dealer under the Public Distribution System for Panchayat Ekderwan ( Block Thawe) committed black marketing by not supplying the required quantity of foodgrains under the “Antodaya Scheme” to the card- holders and that some persons complained of non-distribution of ration-card and coupons by the petitioner. It has been submitted on behalf of the petitioner that he has been a dealer under the Public Distribution System for over 17 years - 2 - and there has never been any complaint against him nor does he suffer from a criminal history and though being innocent ,he has been falsely implicated in this case on the specious ground that 32 consumers had made allegations against him about non-supply/ irregular supply of commodities to them. In this connection, it was sought to be submitted that out of these 32 consumers 19 consumers were attached to the shop of the petitioner in the month of February,2008 vide Memo no.133 dated 6.2.2008 of the District Supply Officer and six of the remaining complainants were never attached with the petitioner’s shop. It was further submitted that the remaining seven consumers had been attached with the petitioner’s shop from the very beginning and from complaints made by these seven original consumers , it would be evident that only two consumers made allegation of non-supply once and the others accepted of having received supply on three occasions. It was further sought to be submitted that although 19 consumers were attached to the shop of the petitioner in the month of February ,2008, yet the allotment for them was made only in the month of March,2008 and, accordingly, the quota for the month of February,2008 was delivered to them in the month of March,2008 and for the month of March,2008 delivery was received on 9.4.2008 and while the delivery to the consumers was in process, the present F.I.R. was lodged on 16.4.2008 and it was very natural that many consumers by then could not get delivery and the commodities were lying in the stock. In respect of the “Antodaya Scheme” it was submitted that - 3 - there were 50 card-holders thereunder attached with the petitioner’s shop and the card system for them had been abolished and coupon system had been introduced from May, 2007. In this connection, it was sought to be submitted that many of the card-holders because they were closely known to the petitioner did not bring Ration Card or coupon and notwithstanding the same delivery was made to them. The learned counsel for the petitioner further submitted that being a dealer under the Public Distribution System , he was exempted by provisions of Clause 31(2) of the Bihar Trade Article ( Licenses Unification) Order,1984 from prosecution as they were designated to be agents of the Government. The learned counsel further sought to point out that he could not be held liable for an offence of Section 7 of the E.C. Act as no Order issued under Section 3 of the E.C. Act is said to have been contravened and the prosecution of the petitioner would amount to an abuse of the process of the court. In the instant case, the First Information Report does not disclose the nature of offence and as to which of the Order made under Section 7 of the E.C. Act had been contravened/violated. Both the points raised by the learned counsel for the petitioner regarding the exemption from prosecution of dealer under the Public Distribution System and provisions of Section 7 of the E.C. Act not being applicable in absence of a mention in the F.I.R. of any Order made under Section 3 of the E.C. Act being violated is no more res integra in view of the several decisions of the Apex Court as also this Court. A counter affidavit has been filed by the Assistant District - 4 - Supply Officer, Gopalganj . He has sought to rely on a letter bearing number 798 dated 4.3.2006 issued by the Food, Supply and Commerce Department in the Government of Bihar in the light of the decision dated 2.5.2003 passed by the Hon’ble Supreme Court in Writ Petition ( Civil) No.196 of 2001 ( People’s Union for Civil Liberties Vrs. Union of India & Ors.), wherein their Lordships to facilitate the supply of grains had issued the following directions: “1. Licensees, who (a) do not keep their shops open throughout the month during the stipulated period. (b) Fail to provide grains to BPL families strictly at BPL rates and no higher, (c) Keep the cards of BPL households with them, (d) Make false entries in the BPL cards, (e) Engage in black-marketing or siphoning away of grains to the open market and hand over such ration shops to such other person/organizations Shall make themselves liable for cancellation of their licenses. The Concerned authorities/functionaries would not show any laxity on the subject. 2. Permit the BPL household to buy the ration in instalments. 3. Wide Publicity shall be given so as to make BPL families aware of their entitlement of foodgrains.” A reading of the directions of the Hon’ble Apex Court shows that the dealers under the Public Distribution System shall make themselves liable for cancellation of their licenses by contravening any of the five overtacts pointed out in the order of the Hon’ble Apex Court. It, thus, follows that in the event a dealer under the Public Distribution System violate any of the five conditions laid down by the - 5 - Hon’ble Apex Court he would be liable for cancellation of his license but the same presumably would not invite any prosecution thereunder. In that view of the matter, the notification issued by the Government of Bihar in the Department of Food, Supply and Commerce does not come to the rescue of the prosecution in the instant case. On the contrary, the submissions advanced by the learned counsel for the petitioner regarding the exemption granted to the dealer under the Public Distribution System and or an Order made under Section 3 of the E.C. Act being violated, as mentioned in the F.I.R., would be relevant .In absence thereof no prosecution would lie against the dealer under the Public Distribution System. Due regard being had to the facts and circumstances of the case, the F.I.R. against the petitioner is hereby quashed and the application is allowed. ( Abhijit Sinha, J ) NKS/-