IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16798 of 2009 RICHHPAL KHANDEWAL, SON OF LATE MOTI LAL KHANDELWAL, RESIDENT OF MADHUBANI, WARD NO. 11, MADHUBANI TOWN, P.S.- MADHUBANI, DISTRICT- MADHUBANI. -------------- PETITIONER Versus STATE OF BIHAR ----------- 2 10.03.2011 Heard learned counsels for the petitioner and the State. The petitioner has challenged the order dated 28.02.2009, whereby, in a complaint case, cognizance has been taken under Section 7 of the Essential Commodities Act. One drum of blue kerosene was seized on 01.12.2005, when the F.I.R was lodged against one Sri Ram Narayan Kharga. He was not sent up for trial by the police when the petitioner has been charge sheeted since he was Kerosene oil dealer. Learned counsel for the petitioner submits that as per the order passed in Cr. Misc. No. 42286 of 2007, disposed of on 15.01.2009 Clause 31(1)(C) of the Bihar Trade Articles (Licenses Unification) Order excludes the applicability of the offences to a P.D.S., dealer appointed by the State Government which means that the dealer would not be prosecuted for having in 2 their possession, the article covered under the control Order 1984. Clause 31(2) (C) of the (Bihar Trade Articles Licenses Unification), order 1994 (herein after called as Unification Order) provides that nothing shall apply to be purchased, sell, storage for sell of trade articles by or on behalf of the Officer, Department, Institution or other organization of the State Govt. or such agencies as may be approved by the State Govt. The aforesaid provision excludes the organization or agencies of the State Govt. from the regions of notification/orders in respect of sell, storage for sell of trade articles by such agencies. Admittedly, the petitioner being the kerosene oil dealer, was appointed by the Civil Supply, Govt. of Bihar. The law, by now, is well settled by a catena of decisions of this Court, that by virtue of clause 31(2) (c) of the Unification/order the dealers under the public distribution system being the agents of the Govt., were exempted from prosecution. The Central Government framed the Public Distributing System (Control) Order 2001, under the Essential Commodities Act. The State 3 Government was required to issue necessary notification for implementation thereof in accordance with law. Such notification, admittedly, was issued and came into effect on 15.07.2007. Clause 17 of this notification stipulates that all prosecution initiated prior to 15.02.2007 shall continue to be governed in accordance with law at the time when the occurrence took place. The petitioner, therefore, would be protected under the Control Order, 1984. In view of the ratio, laid down by this Court as referred to above, the prosecution of the petitioner under Section 7 of the Essential Commodities Act is not permissible in accordance with law. Since, the case was instituted on 01.12.2005, so far as the merit of the case is concerned, the petitioner was not named in the F.I.R. The case was lodged against one Sri Ram Narayan Kharga and in the F.I.R., there is no accusation with regard to the selling of kerosene oil in black market. The impugned order of cognizance does not reflect that the stock of the petitioner, being kerosene oil dealer, was verified by the investigating agencies. 4 It is well settled law, in view of the ratio as laid down by the Division Bench of this Court, in the case of Sri Navin Prasad and five ors., reported in 1992(2) PLJR 331, that merely because some trade articles are being carried, it cannot be inferred without anything else that they were being carried for sale in black market. In the present case, it is not even inferred that the alleged kerosene oil was suspected to be sold in the black market. Nowhere, in the purported F.I.R., has any mention been made as to what orders U/S 3 of the E.C. Act, has been violated or contravened so as to call for a prosecution U/S 7 of the E.C. Act. It is by now well settled that for a prosecution U/S 7 of the E.C. Act, there must be some orders made under Section 3 of the E.C. Act, which is violated or contravened and in absence thereof, no prosecution U/S 7 of the E.C. Act, would lie. Learned counsel for the State, however, submits that the petitioner may raise all his contentions at the time of framing of charge. Considering the aforesaid submissions and in 5 view of the decision of this Court as aforesaid no useful purpose will be served in allowing to continue the present prosecution which will be an abuse of the process of the Court. Accordingly, the order of cognizance dated 28.02.2009 including the entire prosecution with regard to the petitioner in Madhubani Town P.S. Case no. 386 of 2005 are hereby quashed. This application is accordingly allowed. . Amrendra/- (Dinesh Kumar Singh, J.)