IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.37 of 2008 SHIV NARAYAN MANDAL Versus STATE OF BIHAR & ORS ----------- For the petitioner:Mr. Ranjan Kumar Jha,Advocate. For the State : Mr.Kaushal Kumar Jha, S.C.18. 3 8.12.2008 In the instant writ application the petitioner has prayed for quashing the F.I.R. of Jagdishpur P.S. Case No.183/07 dated 30.10.07 for the offence under section 7 of the E.C.Act. 2. The prosecution case , in brief, as made out on the written report submitted by the Marketing Officer, Jagdishpur Block, District- Bhagalpur is as follows:- The informant alleges that the D.D.C. during enquiry found 41.5 quintal rice said to be of Sampoorna Gramin Rojgar Yojna stored in the godown of the petitioner. He has further alleged that stock of aforesaid rice is not mentioned in register. As such, it is alleged that the same has been stored for the purpose of Black Marketing. 3. The petitioner submits that he is a P.D.S. dealer and out of 4558.87 quintals of rice allotted to him, only 4558.87 quintals of rice have been lifted by the agency concerned and rest 41.5 quintals of rice was yet lifted. The Junior Engineer also accepted that due to non-availability of vehicle the said rice could not be lifted. The learned counsel submits that the rice is a denotified commodity since 2002 and there is free sale of the same. It is further submitted that P.D.S. dealer being agency cannot be 2 prosecuted under section 7 of the E.C. Act, as such the F.I.R. is fit to be quashed. 4. The State has filed counter affidavit. In para 7 of the counter affidavit it has been stated that the petitioner has concealed the information regarding the balance of 41.5 quintal of rice in the stock register and instead showed zero stock of rice therein. The petitioner as such has violated condition 11 of PDS licence. Further more non-mentioning of remaining balance quantity still lying in the godown in the stock register is violative of Section 6 (4) of the P.D.S. Control Order,2001. 5. The contention of the petitioner that PDS dealer is exempted under Clause 31 of the Bihar Trade Articles (Licence Unification) Orders,1984; ( hereinafter to be referred to as „the Unification Orders, 1984) is misconceived. First of all the aforesaid Unification Order, 1984 stands superseded vide clause 14 of the Distribution System ( Control) Order, 2001 which has come into the effect from 31.8.2001. However, seizure and search under the aforesaid provision has become workable with effect from 25.5.2006 consequent to notification under Clause 10 of the P.D.S. Order of 2001. 6. In the instant case search and seizure was made on 14.7.2007 and an F.I.R. under section 7 of the E.C.Act was lodged. As such, the prosecution of the petitioner will be governed under P.D.S. Order,2001 and not under the Licence Unification Order,1984. The 2001 order nowhere states that P.D.S. Dealer is an 3 agency of the State Government and is exempted from prosecution. 7. Further more the contention of the petitioner that P.D.S. Dealer is an agent of the State Government and, thus, exempted from prosecution under clause 31 does n ot hold good even under 1984 Unification Order. This Court in the case of Rama Nand Prasad vrs.The State of Bihar reported in 2007 (4) BBCJ 211 has held that PDS dealer is not an agent under the State Government and, thus, exempted from prosecution under Clause 31 of 1984 Order. It would be relevant to quote para 18 of the aforesaid Judgment:- (18) “In view of the above discussion, this Court finds that the PDS dealers are not agencies which are approved by the State Government for being granted exemption under the Unifica- tion Order,1984, as such they do not come either in the category indicated in Section 31(1) pr 31(2) (a), (b), (c) and (d) of the Unification Order, 1984.” 8. The alleged act of concealing and not disclosing the available 41.5 quintals of rice in stock register meant for Sampoorna Rojgar Yojna constitutes violation of condition 11 of the Licence. The further allegation is that balance quantity of rice was purposely not entered in the stock register as motive was to sell the same in black market. The allegation is of attempt to divert the stock, by not showing relevant entry in the stock Register. The rice 4 in question has not been purchased by petitioner from godown or from other agencies or sources for free sale in market. The rice in question was received from agency of Government for distribution under a scheme. There is a basic difference regarding free sale of food grains purchased for aforesaid purposes and those received from government agency for public distribution. The allegation leveled against the petitioner, prima facie, comes within purview of Sub – Clause (4) of Clause 6 of PDS Order,2001. The Clause is quoted hereinbelow:- Clause 6(4):- “The authority or person, who is Engaged in the distribution and hording of essential commodities under the Public Distribution System, shall not willfully indulge in substitution or adulteration or diversion or theft of stocks from central godowns to fair price shop premises or at the premises of the fair price shop.” Explanation- xxxxxx 9. It is true that the food grains have been taken out of purview of essential commodities and one would be free to trade in the aforesaid items without any licence, and barrier on storage limit has been lifted. No one can be prosecuted for not maintaining stock and register for the sale. But, however, if the foodgrains found in the premises of a dealer is suspected of being stolen from FCI or other government agency or meant for 5 distribution under various scheme, the dealer would come under the purview of PDS Order,2001 particularly Clause 10 (4). 10. In view of the aforesaid discussions this Court does not find that the petitioner has made any ground for quashing the F.I.R. As such, the writ application stands dismissed. Anilksinha (Samarendra Pratap Singh,J.)