WPC NO.3918/2007 Page 1 14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 3918/2007 SHREE RAM STORE ..... Petitioner Through: versus THE COMMISSIONER FOOD & SUPPLIES DELHI & ANR. ..... Respondents Through: Mr. J.K. Chaudhary for Mr. Aditya Madan, Advocate CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 13.05.2009 1. The petitioner Mr. Om Prakash has impugned the orders dated 27.02.2007 and 14.05.2007 passed by the Commissioner, Food and Civil Supplies, Govt. of NCT of Delhi; dismissing his appeal and the review petition and confirming the order dated 12.12.2006 passed by Assistant Commissioner cancelling the fair price shop license granted to the petitioner and forfeiting the entire security deposit. 2. On 16.12.2006 the petitioner as a fair price shop licensee was issued 188 quintals of wheat for distribution amongst the cardholders. On 17.12.2006 (one day after the said wheat was issued), search was conducted in the premises of the petitioner by officials of the Food & Supply Department and the entire 188 quintals of wheat was found to be missing. Certain other irregularities were noticed and pursuant thereto Show Cause Notice dated 28.12.2005 WPC NO.3918/2007 Page 2 was issued alleging the following irregularities: “(a) Stock Board was not filled. (b) Complaint book was not available (c) Net variation – 15 Kg Wheat (short) was noticed in AAY category (d) Diversion of 188 Qtls APL Wheat in open market.” 3. The petitioner submitted his reply and was also personally heard by Assistant Commissioner (NW). The case against the petitioner was that the entire 188 quintals of wheat was sold and disposed of to 451 cardholders after it was received on 16.12.2005 till the search was conducted on 17.12.2005. Upon hearing the Assistant Commissioner (NW) held that 188 quintals of wheat cannot be dispersed to 451 cardholders within 7 hours. The order was confirmed in appeal vide order dated 27.02.2007 where again the petitioner was given personal hearing. The Secretary-cum- Commissioner while dismissing the appeal of the petitioner has observed as under: “ I have carefully gone through the records of the case as well as appeal memorandum under reference. I have also heard the appellant in person. The appellant has failed to establish convincingly, either before the licencing authority or during the proceeding in this Court, that he had supplied 188 quintals of APL wheat to bonafied cardholders. In a common sense also it is very difficult to believe that 188 quintals of wheat can be distributed to cardholders within such a short period, particularly keeping the fact in mind that the wheat under reference was supposed to be distributed to the cardholders of APL category, who generally do not show much interest in SFAs distributed through the PDS.” 4. Review petition was also dismissed vide order dated WPC NO.3918/2007 Page 3 14.05.2000. 5. Learned counsel for the petitioner was given a liberty to file affidavits of the cardholders vide order dated 11.02.2009. Two affidavits have been filed out of the 451 cardholders. The petitioner claims that he was able to obtain affidavit of 66 cardholders and these were filed with respondent officials. It is further alleged that the impugned order and the appellate orders are based on presumptions, which have no foundation that the petitioner could not have sold 188 quintals of wheat on 16.12.2005 and 17.12.2005. It is further alleged that the petitioner had kept the shop opened for 14 hours on the said dates and therefore it is possible to sell the entire 188 quintals of wheat. 6. 188 quintals of wheat is a substantial quantity. Admittedly the said quantity was found to be missing from the shop of the petitioner at the time of search/inspection on 17.12.2005. The presumption in these circumstances is that 188 quintals of wheat or substantial part thereof has been sold in the open market. The respondents in their counter affidavit have pointed out that even if it is accepted that the petitioner had kept his shop open from 3.25 PM to 10 PM on 16.12.2005 and from 8.00 PM to 3.00 PM on 17.12.2005, he could not have distributed 188 quintals of wheat to 451 cardholders. Before wheat was given to a cardholder the entries in the card had to be verified to find out the quantity of wheat which was to be sold. This obviously takes time. The respondents in this regard in the counter affidavit have stated as under: “Now considering that theoretically a single customer takes a minimum of 5 minutes (practically impossible in rush of people), in being finally disposed off, after making WPC NO.3918/2007 Page 4 all the entries in registers, collecting money then weighing the ration and handing it over would take: 451 x 5 = 2255 minutes, whereas the petitioner claims that in flat 940 minutes he distributed the 188 quintals of Wheat to 451 consumers and that too in a heavy rush as per his own claim. Unbelievable and impossible by any means, in the current set up. 6. That it is submitted that the petitioner has challenged the suspension orders saying that the same was based on “presumption and not actual fact”, here I would like to submit that “Probability” is a major mathematical factor, to reckon with. The duration of 14 hours or so is such a short span of time that not even a benefit of doubt could be given to the FPS holder.” 7. It may be noted that the official timings of fair price shop outlets are 9:00 a.m. to 1:00 p.m. and then 3:00 p.m. to 7:00 p.m. The statement of the petitioner that the shop was open for 14 hours on 16.12.2005 and 17.12.2005 does not appear to be correct. It fails to also take into account the arrival time and time when search/inspection was carried out on 17.12.2006. The view and decisions of the respondent authorities are backed by the doctrine of preponderance of possibility. The belief and the reasoning behind the conclusion is not perverse or a mere hunch. The fact that 188 quintal of wheat was not in the shop is admitted. The finding that the said quantity of wheat could not have been sold between 16th and 17.12.2005 is a presumption which a reasonable person would entertain on the given material. There is no justification to set aside WPC NO.3918/2007 Page 5 the said conclusion while exercising limited jurisdiction of judicial review under Article 226 of the Constitution of India. 8. There is no merit in the present writ petition and I do not think it is a fit case to interfere with the orders passed by the authorities is a writ petition under Article 226 of the Constitution of India. Dismissed. SANJIV KHANNA, J. MAY 13, 2009 Bsr/am/P