IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3933 of 2008 UMESH PRASAD @ LICHI, S/o Durga Sao, Resident of Mohalla Patel Nagar, Gaya Road, Islampur, P.S. Islmapur, District Nalanda …. Petitioner Versus THE STATE OF BIHAR ……… Opp. Party ----------- For the Petitioners : Mr. Ravi Kant Kumar, Advocate For the State : Mr. Jharkhandi Aupadhaya, A.P.P. O R D E R ------- The petitioner, a dealer under the Public Distribution System, has prayed for the quashing of the First Information Report of Islampur P.S. Case No. 158 of 2007 whereby the petitioner is sought to be prosecuted for alleged commission of offences under sections 406, 420 IPC and section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”). The allegation against the petitioner is that in course of a raid on his godown premises huge quantity of rice, wheat, sugar and “Fortune” brand mustard oil was recovered and it was presumed on the basis thereof that the storage was for the purpose of black marketing. The learned counsel for the petitioner sought to press his application primarily on the ground that his prosecution could not be sustained in law since he was provided immunity by virtue of Clause 31(2) of the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as “the Unification Order”) and the provisions of the Penal Code was not applicable since no offence thereunder was made out. In opposing the first contention of the learned counsel for the petitioner, the learned A.P.P. sought to submit that the protection under the Unification Order was no more available to him as the same stands superseded by virtue of - 2 - Clause 14 of the Public Distribution System (Control) Order, 2001, which came into force with effect from 31.8.2001. In support of his submission he placed reliance on the decision of Shiv Narayan Mandal Vs. State of Bihar reported in 2008(3) PCCR 382. Without entering into an academic discussion regarding the availability or non availability of the immunity to dealers under the Public Distribution System this application has to succeed on other grounds. Section 7 of the E.C. Act deals with persons who contravene any Order made under Section 3 of the E.C. Act but if there is no contravention of any Order then no criminal case can be launched against any person. The First Information Report of the instant case does as to which of the Orders made under Section 3 of the E.C. Act had been contravened / violated rendering the prosecution of the petitioner a necessity. The allegation of the petitioner indulging in black marketing was mere assumption without any basis. According to the assertions made in the written report of the Block Supply Officer which forms the basis for the F.I.R. he raided the godown premises of the petitioner on receipt of confidential information of the petitioner storing huge quantities of wheat, rice sugar and mustard oil. However, he does not state of the informer making any allegation of the petitioner indulging in black marketing. In absence of any material to indicate indulgence in black marketing, the allegation of the petitioner indulging in black marketing is ill founded. There is yet another aspect of the matter. It is by now well settled that where two legislations are in operation the general provision should yield to the special provision. The E.C. Act being a Special Act will hold the field over - 3 - the Penal Code and as such the petitioner cannot face prosecution under the Penal Code when he is simultaneously sought to be prosecuted also under the E.C. Act. Even otherwise the offence of sections 406 and 420 IPC also do not appear to have been made out from the assertions in the written report. In view of the discussions made in the foregoing paragraphs the intended prosecution of the petitioner is an abuse of the Court and has to be quashed. Accordingly, the application succeeds and the F.I.R. in question is hereby quashed. The Patna High Court Dated The 16th April, 2009 Sanjay Pd/- A.F.R. (Abhijit Sinha, J.)