IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33377 of 2007 RAMJEE PASWAN, Son of Bindeshwar Rai, R/o village Andahra, P.S. Parsauni, District Sitamarhi …. Petitioner Versus 1. STATE OF BIHAR 2. Rambabu Patel, S/o Bindeshwar Rai, R/o Andahra, P.S. Parsauni, District Sitamarhi …. Opp. Parties For the petitioner :Mr. Surendra Kishore Thakur, Advocate For the State :Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 :None ----------- O R D E R 7 18.11.2008 The petitioner, a dealer under the Public Distribution System, who along with the Block Supply Inspector has been arrayed as accused has prayed for the quashing of the order dated 31.1.2007, passed by Sri Upendra Kumar, Judicial Magistrate, First Class, Sitamarhi, in Protest - cum – Complaint Case no. C1 – 1462 of 2005 whereby having found a prima facie case to have been made out under sections 323 and 504 IPC as also section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”), has requested the learned Chief Judicial Magistrate, Sitamarhi, to recall the file and sent it to the Special Court for E.C. Act for trial. It appears that one Rambabu Patel, a busy body, had initially filed a complaint case alleging inter alia that the petitioner since 1998 was not distributing grains and kerosene oil to the beneficiaries and by illegally obtaining signatures of the consumers he was selling the grains and kerosene oil in the black market. It is further alleged that the complainant being one of the customers of the - 2 - petitioner’s shop had complained to the authorities regarding the non supply for which was threatened and assaulted. The said complaint on being transmitted to the concerned P.S. under section 156(3) Cr.P.C. Parsauni P.S. Case No. 14 of 2005 was registered and the police after due investigation submitted a final form and recommended for action under sections 182/211 IPC against O.P. No. 2 as he had tried to mislead the police. It has been submitted on behalf of the petitioner that he is innocent and has been falsely implicated in this case since the earlier attempts by the complainant to involve him in cases had failed. The falsity of the case, it was submitted, would be apparently visible from the fact that the police in course of investigation had recorded the statement of several consumers of the petitioner’s shop none of whom appeared to support the prosecution case. It was further submitted that on the basis of an application filed by O.P.No. 2 before the concerned authorities on enquiring was held by the Supply Inspector who after a detailed examination of the records and stock registers of the shop found no irregularities in the conduct of business by the petitioner and a report in that regard was submitted accordingly. He also mentioned that none of the consumers had made any complaint to him. The learned counsel sought to bring to my notice the fact that the complainant had simultaneously filed a petition bearing Complaint Case No. 55 of 2002 before the Consumer Forum, Sitamarhi, making identical allegations and the said case was dismissed vide order dated 31.7.2006. - 3 - O.P. No. 2 in pursuance of notice issued to him put in an appearance by filing vakalatnama but at the time of the hearing of this matter, both he had and his counsel are absent. This application is fit to be allowed on the three grounds stated herein below:- Firstly dealers under the Public Distribution System are exempted from prosecution by virtue of Clause 31(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984, as they happen to be the agents of the Government and their prosecution would amount to be an abuse of the process of the Court. Secondly, as is well settled by a catena of decisions both of the Apex Court as also this court, for inviting prosecution under section 7 of the E.C. Act, the F.I.R. must disclose as to which Order made under section 3 of the E.C. Act has been contravened or violated and in the absence of such statement or declaration in the fardbeyan or compliant no prosecution lies under section 7 of the E.C. Act. Thirdly the allegation of sale in black market had been negatived by the inspection as also the police case and Consumer Forum. Due regard being had to the facts and circumstances of the case and the discussion made above prosecution of the petitioner herein would amount to an abuse of the process of the Court and the same cannot be sustained in the eye of law. Accordingly the application is allowed and the order taking - 4 - cognizance against the petitioner herein is hereby quashed. Spd/- (Abhijit Sinha, J.)