IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1145 of 2007 MITHILESH PRASAD SINGH Versus STATE OF BIHAR & ORS ----------- 3 5.1.2009 Heard the learned counsel for the petitioner and the State. 2. In the instant writ application the petitioner prays for quashing the F.I.R. of Nardiganj P.S. Case no.56 of 2007 dated 10.8.2007 registered under section 7 of the E.C.Act. 3. The allegation is that the petitioner was diverting some of the foodgrains received under BPL Scheme, to a separate godown for the purpose of black marketing. It has further been alleged that the foodgrains in question bears F.C.I. mark and stitches on the cover of the bag. 4. The learned counsel assails the F.I.R. as well as the seizure on the following grounds. The first ground is that a dealer is an agency of the Government and as such exempted from prosecution under Clause 31(2) of the Bihar Trade Articles ( Licence Unification) Order, 1984 ( hereinafter to be referred to as ‘the Unification Order, 1984’). In this respect he relied upon a Bench decision of this Court in case of Arun Kumar Paswan reported in 2008 (3) PLJR 33 He submits that the authority has not pin pointed the specific provision which has been violated. 5. Learned counsel for the State submits that the allegation disclosed in the F.I.R. would constitute offence under section 7 of the E.C. Act. The contention of the petitioner that PDS - 2 - dealer is an agency of the Government and, thus, stands exempted from prosecution under Clause 31 (2) of the Unification Order,1984 is misconceived. Firstly, the Unification Order,1984 stands superseded by Public Distribution System (Control) Order, 2001. Clause 14 of 2001, Order states that any provisions of any previous order, contrary to the aforesaid order stands superseded. Though the 2001, Order came into effect substantially in the same year, the provisions regarding search and seizure became workable and effective only from May,2006 consequent to notification issued under clause 10 thereof. In this view of the matter the provision of Clause 31 (2) is no more available to the petitioner, as the occurrence is of July, 2007 and would be covered under PDS (Control) Order,2001 and not 1984, Order. Further more, this Court in a detailed Judgment in the case of Ramanand Prasad Vrs. The State of Bihar, reported in 2007 (4) BBCJ 211 has held that PDS dealer is not an agency of the State Government and thus is not exempted from prosecution under Clause 31 (2) of the Unification Order. In the aforesaid case this Court considered cases in which similar views as expressed in Arun Kumar Paswan ‘ supra’ has been expressed. This Court with due respect has differed with the view where it was held that PDS dealer is an agency of State Government and this exempted from prosecution under clause 31 (2) of 1984, Order. 6. It would appear from the allegation that an attempt was being made to divert the foodgrains in question meant for distribution under a scheme. Such allegation comes under Clause 6 - 3 - (4) of the 2001 Order which covers all such cases where an attempt is made either to substitute or to adulterate or to divert foodgrains which are supposed to be distributed under scheme or one which are lifted from F.C.I. or other Government godown for the purpose of distribution under Government scheme. 7. Storage of foodgrains and distribution under a Government scheme is entirely different than the business of purchase and sale of food grains. It is true that foodgrains have been denotified in the year, 2002 from the list of Essential Commodities . But these notifications relate to foodgrains which are meant for purchase and sale in open market. It does not cover foodgrains which are lifted under a Government godown or its agency for distribution under a Government Scheme. 8. In view of aforesaid discussions, this Court is of the view that petitioner has failed to make out any case for quashing the F.I.R. and as such his prayer in this respect is rejected. 9. As far as the prayer of petitioner regarding release of the foodgrains is concerned, it appears that the same was seized from his possession. This Court, for the present, is not going into the merit or otherwise of the allegations made in the F.I.R. Foodgrains are perishable commodities. In such circumstances, this Court observes that if the petitioner files an application before the S.D.O., Nawada, for release of the foodgrains, the same would be allowed in his favour on furnishing adequate security, 25% of which would be in terms of cash security. The release would be subject to result of criminal - 4 - prosecution. 9. This writ application is disposed of with the aforesaid observations and directions. Anilkr.sinha (Samarendra Pratap Singh,J.)