Judgment :- The petitioner, who is a rice mill owner and a wholesale dealer in rice, faced with a criminal prosecution, has made a desperate attempt to challenge the Clause 6(4) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 as ultra vires of the Essential Commodities Act 1955 (Central Act 10 of 1955) and the Removal of (licensing requirements, stock limits and movement restriction) on specified Foodstuffs Order, 2002 in this Writ Petition. 2. Heard the arguments of Mr. R. Shanmuga Sundaram, learned Senior Counsel appearing for Mr. S.Ravi, learned counsel for the petitioner and have perused the records. 3. Learned Senior Counsel submits that the writ petitioners rice mill was raided by the respondents 3 and 4 on 9.4.2007 and 80 bags of rice, each bag weighing 70 kgs, which were distributed through Public Distribution System (PDS) was recovered from the mill. 4. According to the petitioner, the rice mill was owned by the petitioner and the same was leased out to one Raja and he is carrying on rice mill and rice business. On 5.4.2007, 100 bags of rice, which were transported towards the said rice mill in a lorry for polishing was also seized by the respondents and a criminal case in Crime No.69/2007 was registered for contravention of para 6 of Sub-para 4 of the of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 hereinafter referred to as "1982 Tamil Nadu Order" 5. Even for the seizure of rice bags from the rice mill, another criminal case has also been registered and the petitioner was shown as accused No.2. The petitioner further states that the case was foisted against him and he was not present in the scene of occurrence and the respondent No.3 demanded some illegal gratification and in that process, third respondent and fourth respondent are acting contrary to law. 6. With reference to the second incident, a second case in Crime No.70/2007 was registered against the petitioner. As against the registration of the criminal cases, the petitioner has moved the Criminal Court for bail and with reference to the release of rice in two crime Nos. viz., 69/2007 and 70/2007, already two writ petitions have been filed before this Court being W.P.No.4295 of 2007 and 4294 of 2007 and they are pending. As against the registration of the criminal cases, the petitioner has moved the Criminal Court for bail and with reference to the release of rice in two crime Nos. viz., 69/2007 and 70/2007, already two writ petitions have been filed before this Court being W.P.No.4295 of 2007 and 4294 of 2007 and they are pending. With reference to the seizure of the lorry, one Sudhan has filed another Writ Petition in W.P.No.4105 of 2007 and the same is also pending before this Court. The petitioner being inspired by the pendency of a Writ Petition pending in this Court filed by some third party (W.P.No.9571 of 2005), challenging the vires of para 6.4 of the 1982 Tamil Nadu Order has come forward to file the present Writ Petition so that if the said order is struck down, he can escape from the criminal prosecution. 7. Learned Senior Counsel appearing for the petitioner submits that the "1982 Tamil Nadu Order" issued by the State Government was issued in pursuance of Section 3 of the Essential Commodities Act 1955, (hereinafter called as E.C.Act) read with Central Governments notification in GSR No.800 dated 9.6.1978 and the "1982 Tamil Nadu Order" cannot stand and it has been allegedly repealed by 2002 order issued by the Central Government. 8. Learned Senior Counsel further submits that the Central Government having regard to the liberalisation of the economy has done away with restriction imposed on free movement of essential commodities and rice is also one of the essential commodities and there is no prohibition for taking rice from one place to another and in the absence of any valid law or control order, the respondents cannot harass the persons like the petitioner with criminal prosecution. Learned Senior Counsel further submits that on merits, the petitioner has got an excellent case and that he can prove that the rice was purchased in the open market and that the petitioner cannot be accused of cornering the rice distributed through Public Distribution System (PDS). Under the circumstances, learned Senior Counsel submits that in the absence of a fresh Control Order issued by the Government of India, para 6.4 of the "1982 Tamil Nadu Order" cannot stand on its own. 9. Under the circumstances, learned Senior Counsel submits that in the absence of a fresh Control Order issued by the Government of India, para 6.4 of the "1982 Tamil Nadu Order" cannot stand on its own. 9. When pointed out that no person has vested right to purchase the rice distributed through PDS, which is subsidised by both Central Government and State Government, the learned Senior Counsel submitted that the persons who are incharge of the Fair Price Shops (FPS) can be proceeded with for any violation of the guidelines issued under PDS Scheme and therefore, the petitioner cannot be harassed on the allegation of dealing with PDS. He also pointed out that the State Government is not in helpless situation as in the absence of "1982 Tamil Nadu Order", the normal criminal law (such as proceedings under Section 420 IPC) can be pressed into service against any person who commits the offence of cheating. 10. In the light of the submissions made by the learned Senior Counsel, it is necessary to refer to para 6 of the "1982 Tamil Nadu Order" order in its entirety. 6. Supply of Scheduled Commodities – (1) No person shall obtain in any scheduled commodities on a family card unless he- (i) registers himself with an authorised dealer, and (ii) Complies with any other directions which may be issued in this behalf by the Government, the Commissioner of Civil Supplies and Consumer Protection, the Collector, the Authorised Officer, or the Inspecting Officer as the case may be. (2) The authorised dealer with whom the family card is registered shall on production of such card by the holder, make necessary entries in the card and supply the scheduled commodities not exceeding the quantities for which he is eligible. (3) The authorised dealer shall not supply the scheduled commodities against any family card not registered with him or to non-card holder. (4) No person shall purchase any scheduled commodity obtained on a family card. 11. Before dealing with the legal aspects of the case, it is needless to point out that the State Government with effect from 3.6.2006 started distributing rice at subsidised rate at Rs.2 per Kg for the persons, who are living below the poverty line (BPL). The said programme has been successfully implemented in the State of Tamil Nadu. 11. Before dealing with the legal aspects of the case, it is needless to point out that the State Government with effect from 3.6.2006 started distributing rice at subsidised rate at Rs.2 per Kg for the persons, who are living below the poverty line (BPL). The said programme has been successfully implemented in the State of Tamil Nadu. Under the circumstances, it has come to notice that the rice which is distributed through PDS is cornered by rice mafia and are allowed taken to outside the State and are sold at a higher price and in many places, the rice is used as cattle feed; it will defeat the very PDS. Therefore, the State in order to avoid such misuse of PDS rice have been resorting to para 6.4 of the "1982 Tamil Nadu Order". There is no vested right to purchase rice, which are distributed through family cards. It is because of this stringent provision, the petitioner has chosen to challenge the vires of the said order so that he can have a cake-walk in the criminal prosecution launched against him. 12. Though the arguments advanced by the learned Senior Counsel are attractive at the first blush, on a deeper consideration of the issue, it is clear that para 6.4 of the "1982 Tamil Nadu Order" does not suffer from any infirmity and it did not get eclipsed because of the issuance of 2002 order by the Central Government issued under Section 3 of the E.C.Act. Paragraph 3,4 and 5 of the 2002 order reads as follows: 3. With the coming into effect of this Order any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarse grains, sugar, edible oil seeds, edible oils, pulses, gur, wheat products (namely maida, rava, suji, atta, resultant atta and bran) and hydrogenated vegetable oil or vanaspathi and shall not require a permit or license, therefore, under any order issued under the Essential Commodities Act, 1955. 4. The provisions of this Order shall take effect notwithstanding anything to the contrary in any Order made by a State Government before the commencement of this Order except as respects anything done, or omitted to be done, there under before such commencement. 5. 4. The provisions of this Order shall take effect notwithstanding anything to the contrary in any Order made by a State Government before the commencement of this Order except as respects anything done, or omitted to be done, there under before such commencement. 5. Issue of any order by the State Governments under powers delegated in GSR 452 (E) dated the 25th October, 1972 issued by the Government of India in the then Ministry of Agriculture (Department of Food) and GSR 800 dt. the 9th June, 1978 issued by the Government of India in the then Ministry of Agriculture and Irrigation (Department of Food) for regulating by licenses, permit or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any of the commodities specified in Clause 3 shall require the prior concurrence of the Central Government. 13. Taking advantage of para 5 of the 2002 Order of the Central Government wherein earlier order of 10th June 78 issued in GSR 800 has been referred, the learned Senior Counsel says once the Central Government Order is repealed, the State Governments Order which draws its power from it will therefore stand eclipsed. Learned Senior Counsel further points out that it is always open to the State Government to issue fresh orders with the prior concurrence of the Central Government in terms of para 5 of 2002 order. In the absence of such fresh notification, the old para 6.4 of "1982 Tamil Nadu Order" will stand automatically erased. 14. In fact para 6 of the said order clearly exempts the order of the Central Government made in 2001 relating to the PDS (Control). The said para is extracted below: "6. Nothing contained in this order shall affect the operation of the Public Distribution System (Control) Order, 2001 issued by the Central Government and orders of the State Governments issued in pursuance thereof." Therefore, it is necessary to refer to some of the contents of the 2001 order of the Central Government relating to PDS. Para 6(4) of the order is as follows: The authority or person, who is engaged in the distribution and handling of essential commodities under the Public Distribution System, shall not wilfully indulge in substitution or adulteration or diversion or theft of stocks from central godowns to fair price shop premises or at the premises of the fair price shop. Para 6(4) of the order is as follows: The authority or person, who is engaged in the distribution and handling of essential commodities under the Public Distribution System, shall not wilfully indulge in substitution or adulteration or diversion or theft of stocks from central godowns to fair price shop premises or at the premises of the fair price shop. Explanation: For the purpose of this clause; (i) "diversion" means unauthorised movement or delivery of essential commodities released from central godowns but not reaching the intended beneficiaries under the Public Distribution System; (ii) "Substitution" means replacement of essential commodities released from the central godowns with the same articles of inferior quality for distribution to the intended beneficiaries under the Public Distribution System. Further para 9 provides for penalties clearly states violation of the 2001 order including para 6 (extracted above) will be an offence under section 7 of the E.C.Act. The petitioner has been preciously charged only under that Section. Para 10(3) empowers the authorities to search, seize, remove stock of essential commodities if there was a contravention of the 2001 order. 15. Even otherwise, the rice, which are issued through PDS to the holders of family card under BPL stands on a different footing. What is liberalised by 2002 order of the Central Government is only free movement of essential commodities, which includes rice and therefore, the State Governments are not expected to create any further bottlenecks. Therefore, the arguments of the learned Senior Counsel based on the doctrine of eclipse "1982 Tamil Nadu Order" based on the 2002 Central Government must fail. 16. In the present case, the Court is concerned with the rice distributed through PDS in which no person could have any free dealing as the rice is distributed after heavy subsidy given by the State and Central Government. In fact, the rice is released by the Central Government from the Central Stock held by them to the States with a further subsidy given by both the Central Government and the State Governments. It is clear that it is a clause by itself. By the said process, families under BPL are identified and family cards are issued with a strict monitoring by the authorities under the E.C.Act by the various control orders issued by both State and Central Governments. It is clear that it is a clause by itself. By the said process, families under BPL are identified and family cards are issued with a strict monitoring by the authorities under the E.C.Act by the various control orders issued by both State and Central Governments. Therefore, the argument that "1982 Tamil Nadu Order" will stand erased in the light of liberalisation done permitting free movement of essential commodities by 2002 order of the Central Government can have no application in the absence of any express repeal of the "1982 Tamil Nadu Order" 17. The 2002 order of the Central Government is clearly confined to Removal of licensing requirement, stock limits and movement restriction imposed on specified food stuffs (which includes rice) is relatable only to the business in dealing with those commodities and has nothing to do with the administration of PDS. 18. It must be stated that 2002, order of the Central Government specifically refers to the Public Distribution System Control Order 2001 and various orders issued by the State Government in pursuance thereof. Once it is held that the order issued by the State Government is valid order and it is not get eclipsed by the issuance of 2002 notification, which only deals with free movement of essential commodities, which include rice and does not deal with rice distributed through PDS System, the entire edifice built by the learned Senior Counsel fails and therefore, the Writ Petition lacks any merits and shall stand dismissed accordingly. 19. If the learned Senior Counsels argument is accepted, then it will not only defeat the very purpose of establishing PDS for the BPL families holding family cards but it will likely to result in misuse of rice by rice mafia as the PDS rice will be taken away to other rice starving States and will be sold at premium frustrating the attempt of the State Government and Central Government in cushioning the cost of living (CLI) of the poor people in this country. 20. Learned Senior Counsels argument that the petitioner had not purchased PDS rice from PDS Shop and the petitioner had purchased the rice from open market, is only a defence available to him in the Criminal Court and the said defence cannot be gone into in this Writ Petition filed under Article 226 of the Constitution of India. 20. Learned Senior Counsels argument that the petitioner had not purchased PDS rice from PDS Shop and the petitioner had purchased the rice from open market, is only a defence available to him in the Criminal Court and the said defence cannot be gone into in this Writ Petition filed under Article 226 of the Constitution of India. Second argument that PDS is strictly monitored, and such diversion can be detected, is not available to the petitioner as it brings totally a different issue and it does not arise for consideration in this Writ Petition. 21. Under the circumstances, the Writ Petition is dismissed. No costs. Consequently, connected M.P.(MD) Nos.1 and 2 are also dismissed.