IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54147 of 2007 SUBODH PASWAN, S/o LATE CHAMO PASWAN, RESIDENT OF VILLAGE KHUTAHA P.S. LODIPUR (SABOUR) DISTRICT BHAGALPUR ………………. PETITIONER Versus STATE OF BIHAR ………….. OPPOSITE PARTY ----------- 2 18.2.2009 Heard Mr. D.K.Pandey, the learned counsel for the petitioner and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Petitioner who is a dealer under the Public Distribution System and the sole FIR named accused of Sabour (Lodipur) P.S. Case No. 42 of 2005 has prayed for quashing of the order dated 12.8.2005 passed therein by the learned Sub Divisional Judicial Magistrate, Bhagalpur, whereby he has taken cognizance against him for offence punishable under section 7 of the Essential Commodities Act (hereinafter referred to as “the E.C. Act”). The aforesaid case was instituted on the basis of a written report dated 15.2.2005 submitted by the Block Supply Officer, Goradih inter alia stating that at about 12.05 P.M. on 12.2.2005 he along with The Block Veterinary Officer and Circle Inspector raided the shop premises of the petitioner and submitted his report to the Block Development Officer, Goradih. According to the report the shop was found closed and the petitioner was found absent and on demand the family members of the petitioner could not produce any paper, register or documents in respect of the shop. It is alleged that in their presence a physical verification of the articles present was made and no essential commodities or foodgrains like wheat and rice or kerosene oil could be found. It is also alleged that while the verification was going on three bags full of cereals was being unloaded from a thela. Two of the bags contained - 2 - one quintal each of rice and the third bag contained one quintal of wheat. On being questioned the thela wala disclosed that the wheat and rice had been sent by the petitioner from Mirjan Hat but he could not produce any papers in respect thereof. The three bags of cereals were seized under a seizure list and were handed over to Ward Member Smt. Siya Devi for safe keeping. Irregularities in maintaining registers in respect of the food items was also sought to be pointed. It has been submitted by the learned counsel for the petitioner that keeping a shop closed is no offence which could be penalized under section 7 of the E.C.Act and that at the time of the alleged inspection of his shop the petitioner had gone to Bhagalpur for medical treatment. Other points were sought to be raised by the learned counsel for the petitioner which need not be dealt with in detail since I am of the opinion that this application has to succeed on three major issues. 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 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. - 3 - Thirdly when the relevant papers were not made available to him, as claimed, then how could the informant detect irregularities in the registers. Due regard being had to the facts and circumstances of the case and the discussions 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 cognizance against the petitioners herein is hereby quashed. Spd/- (Abhijit Sinha, J.)