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Chhattisgarh High Court · body

2008 DIGILAW 247 (CHH)

Pooran Singh v. State of Chhattisgarh

2008-09-08

T.P.SHARMA

body2008
ORDER 1. By this petition, the petitioner has challenged legality and propriety of the order dated 29-4-2008 passed by the 1st Additional Sessions Judge, Ambikapur in Criminal Revision No.47/2007 whereby learned Additional Sessions Judge has affirmed the order framing charge dated 19-2-2007 passed by the Chief Judicial Magistrate, Ambikapur in Criminal Case No.232/2006. 2. The order impugned is challenged on the ground that the alleged violation of the Chhattisgarh (Food Stuffs) Civil Supply Public Distribution Scheme, 1991 (for short `the Scheme') has not been framed under the Chhattisgarh Foods Stuffs (Distribution) Control Order, 1960 (for short `the Control Order') and any violation of the Scheme is not punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (for short `the Act'). The Court below has committed gross illegality by framing charge. 3. I have heard learned counsel for the parties and perused the impugned order as also the copy of charge sheet filed on behalf of the petitioner. 4. Mr. Manoj Paranjpe, learned counsel for the petitioner, argued that in this case if the allegation made in the police report/charge sheet is admitted in its face value, even then conviction of the petitioner under Section 3 read with Section 7 of the Act could not be possible. He further submits that he is not challenging the order framing charge under Sections 409, 120-B of the I.P.C. Copy of the charge sheet reveals that the present petitioner has violated clauses 5, 6, 7 (4), 9 (1) (2), 11 and 12 of the Scheme, same is punishable under clause 13 of the said Scheme and also under Section 7 of the Act. The State Government has not framed any Scheme under the provisions of the Control Order because, the said Control Order does not confer any power upon the State Government to prepare such Scheme or any scheme and the Scheme prepared by the State Government is in exercise of the power conferred under Article 162 of the Constitution of India. The Scheme so prepared is not a part or made under the Control Order, therefore, any violation of the aforesaid Scheme is not punishable under Section 3 read with Section 7 of the Act. 5. The Scheme so prepared is not a part or made under the Control Order, therefore, any violation of the aforesaid Scheme is not punishable under Section 3 read with Section 7 of the Act. 5. Learned counsel for the petitioner placed reliance in the matter of Madhya Pradesh Ration Vikreta, Sangh and others v. State of M.P. and another1 in which while dealing with the question of power to make Scheme in terms of clause 2 (d) of the Control Order, the High Court of Madhya Pradesh has held that clause 2 (d) defines "Government Scheme to mean a scheme for distribution of foodstuffs to consumers through fair price shops set up by the Government in this behalf", but it does not confer any power to make any scheme. In absence of any enabling provisions to make such Scheme, any Scheme so made would not be a Scheme made under the Control Order. The Government is competent to prepare and make a scheme in exercise of power conferred under Article 162 of the Constitution of India. Violation of the Scheme made under Article 162 of the Constitution of India is not violation of any provisions of the Control Order, therefore, violation of such Scheme is not punishable under Section 3 read with Section 7 of the Act. Learned counsel also relied upon the judgment of the Apex Court in the matter of Madhya Pradesh Ration Vikreta Sangh Society and others etc. v. State of Madhya Pradesh and others2 in which the Apex Court has held that the Scheme so made is not violative of Articles 14 & 19 of the Constitution of India. He further placed reliance in the matter of Prakash Babu Raghuvanshi v. State of M.P.3 in which the Apex Court has held that the order includes a direction issued thereunder. In the case of violation of the Scheme, the case was remanded to the High Court for hearing afresh after taking copy of the said Control Order which was the foundation for taking action in the case. 6. In the case of violation of the Scheme, the case was remanded to the High Court for hearing afresh after taking copy of the said Control Order which was the foundation for taking action in the case. 6. On the other hand, learned counsel appearing for the State/respondent No.1 referring to the case of Madhya Pradesh Ration Vikreta, Sangh and others (supra), submitted that during the pendency of these petitions, the Government made a Scheme for distribution of foodstuffs through fair price shops under clause 2 (d) of the Control Order, same was under challenge before the High Court of Madhya Pradesh in the above case in which it was held by the Division Bench of the High Court of Madhya Pradesh in the year 1981 that the Control Order does not give any power to make any Scheme under clause 2 (d) or any other clause and any scheme made for distribution of food stuffs through fair prices shops may be a scheme made by the State Government in exercise of power conferred under Article 162 of the Constitution of India and not under the Control Order. But in the instant case, the petitioner has not challenged legality and propriety of the Chhattisgarh (Food Stuffs) Civil Supply Public Distribution Scheme made by the State Government before 1981, but he has challenged legality and property of the Scheme of 1991 which came into force with effect from 1-1-1992. The aforesaid scheme, which is under challenge in the instant case, is prepared in exercise of the power conferred by clause 4 of the Control Order. Vide notification No.F-4/113/ 89/XXIX/2 Bhopal dated 21-2-1991, the State Government has amended clause 2 (d) and clause 4 of the Control Order which came into force from 21-2-1991. Clauses 2 (d) of the Control Order reads thus: "Government Scheme" means the scheme for distribution of Food stuffs to consumers through fair price shops set up by the Government in this behalf under clause 4 of this order. Clause 4 of the Control Order reads thus: "Government may make a scheme for the distribution of Food stuffs to the consumers through fair price shops." 7. Clause 4 of the Control Order reads thus: "Government may make a scheme for the distribution of Food stuffs to the consumers through fair price shops." 7. Learned Panel Lawyer also submits that in the cases of Madhya Pradesh Ration Vikreta, Sangh and others (supra) & Madhya Pradesh Ration Vikreta Sangh Society and others etc.(supra), it has been held that the State Government was not empowered to make any Scheme under the Control Orders in absence of any enabling provisions. But the Control Order has been amended vide notification No.F-4/113/89/XXIX/2 Bhopal dated 21-2-1991 with effect from 21-2-1991 and after 21-2-1991, the State Government was empowered to make Scheme for distribution of food stuffs to the consumers through fair price shops. The State Government has made this Scheme in accordance with clause 4 of the Control Order for which the State Government is competent and the Scheme so made under clause 4 of the Control Order is the Scheme made under the Control Order which is part and parcel of the Control Order. Violation of such Scheme is violation of the Control Order, same is violative of Section 3 of the Act punishable under Section 7 of the Act. 8. This is a petition filed under Section 482 of the Cr.P.C. for quashment of criminal charge for offence punishable under Sections 3 read with Section 7 of the Act and 409 & 120-B of the I.P.C. Interference in exercise of inherent jurisdiction under Section 482 of the Cr.P.C. can be made in rarest of rare cases with a view to give effect to the order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice. Inherent jurisdiction or extra ordinary jurisdiction under Section 482 of the Cr.P.C. should be exercised sparingly, in rarest of rare cases. 9. Copy of the charge sheet reveals that the alleged offence has been committed on 11-11-1998. In exercise of the power conferred by clause 4 of the Control Order, the State of Madhya Pradesh has formulated a Scheme known as the Madhya Pradesh (Food Stuffs) Civil Supply Public Distribution Scheme, 1991 with effect from 1-1-1992. The present Scheme of 1991 has not been made under clause 2 (d) of the Control Order or under Article 162 of the Constitution of India. The present Scheme of 1991 has not been made under clause 2 (d) of the Control Order or under Article 162 of the Constitution of India. After amendment of clause 4 of the Control Order, the State Government was empowered to formulate a Scheme under the Control Order. In the case of Madhya Pradesh Ration Vikreta, Sangh and others (supra), the Division Bench of the High Court of Madhya Pradesh has held that the Government was empowered to prepare a scheme under Article 162 of the Constitution of India, but in absence of any enabling provisions under the Control Order, especially clause 2 (d) which only defines `Government Scheme', the State Government was not empowered to make any Scheme under the Control Order and any Scheme so made under Article 162 of the Constitution of India may be for distribution of food stuffs, but was not the Scheme under the Control Order, therefore, violation of any clause of such Scheme does not come under violation of the Control Order and same was not punishable under Section 7 of the Act. While considering the scope of making the Scheme and competency to make such Scheme by the State Government, the Apex Court held in the case of Madhya Pradesh Ration Vikreta Sangh Society and others etc.(supra) that the Scheme was not framed under the Control Order and in absence of any enabling provision for making such Scheme in the Control Order, the M.P. (Foodstuffs) Civil Supplies Public Distribution Scheme, 1981 was not formulated by the State Government under clause 2 (d) of the Control Order, the same was formulated under Article 162 of the Constitution of India. In the case of Prakash (supra), the Madhya Pradesh Sarvajanik Purit Vitaram Scheme, 1991 (another Scheme) was under challenge before the Apex Court in which the Apex Court has remitted the case to the High Court for consideration after obtaining the copy of such Control Order from the parties. 10. In the instant case, after amendment in the Control Order by way of clause 4 of the Control Order, the State Government was empowered to make the Scheme in exercise of the power conferred under clause 4 of the Control Order, as such, the State Government has formulated the Chhattisgarh (Food Stuffs) Civil Supply Public Distribution Scheme, 1991. 10. In the instant case, after amendment in the Control Order by way of clause 4 of the Control Order, the State Government was empowered to make the Scheme in exercise of the power conferred under clause 4 of the Control Order, as such, the State Government has formulated the Chhattisgarh (Food Stuffs) Civil Supply Public Distribution Scheme, 1991. The Scheme so formulated is a Scheme made under the Control Order and violation of such Scheme is violation of the Control Order, therefore, any such violation of the said Scheme is violation of the Control Order issued in terms of Section 3 of the Act which is punishable under Section 7 of the Act. After decision in the cases of Madhya Pradesh Ration Vikreta, Sangh and others (supra) & Madhya Pradesh Ration Vikreta Sangh Society and others etc.(supra), the State Government has amended the Control Order and made suitable provisions for making of the Scheme in terms of clause 4 of the Control Order for which the Government was competent to amend. 11. For the foregoing reasons, learned Court below has not committed any illegality or irregularity in framing charge punishable under Section 7 of the Act. I do not find any substance in the instant petition, same is liable to be dismissed and it is accordingly, dismissed.