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2008 DIGILAW 249 (PAT)

Bhola Sah v. State Of Bihar

2008-02-05

ABHIJIT SINHA

body2008
Judgment 1. The petitioner herein, a dealer under the Public Distribution System, has preferred this application for quashing of the order dated 22.9.2007 passed by the learned Chief Judicial Magistrate, Samastipur, in Kalyanpur P.S. Case No. 86 of 2006 whereby he has taken cognizance of offence under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the E.C. Act"). 2. The prosecution case can be culled out from the written report submitted to the Officer In-charge, Kalyanpur P.S. by the Block Development Officer on 30.7.2006 wherein it was stated inter alia that the Jamadar of Kalyanpur P.S. and Anchal guard had seized 21 bags of rice each of 50 Kgs. weight which was purportedly being transported elsewhere for purposes of blackmarketing by the petitioner. 3. It has been submitted by the learned counsel for the petitioner that he has no concern whatsoever with the seized rice and that the Block Supply Officer having visited the shop of the petitioner after the case had been registered had found no discrepancy or illegality in the business or maintenance of books of account. It was further submitted that even if it is presumed that the rice in question was being carried for the purposes of sale in the blackmarket, the same would not constitute an offence in the eye of law as preparation to commit an offence was not sustainable under Section 7 of the E.C. Act. It was next submitted that trade of rice, wheat etc. is free throughout the country including the State of Bihar in view of the orders issued by the Central and the State Governments by which all licensing provisions in respect of movement and storage control have been abolished. 4. The learned counsel sought to further assail the impugned order by referring to Section 32(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984 which gives special protection to the dealers under the Public Distribution System from prosecution. 5. 4. The learned counsel sought to further assail the impugned order by referring to Section 32(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984 which gives special protection to the dealers under the Public Distribution System from prosecution. 5. It was also submitted that neither the Jamadar nor the Anchal Guard were empowered under the provisions of the Bihar Trade Articles (Licenses Unification) Order, 1984, or under any Order made under Section 3 of the E.C. Act to conduct any search and seizure and as such the entire seizure and the case itself is illegal and not sustainable in the eye of law more so when the seized articles were not of any Government scheme. 6. Faced with the barrage of the sub- missions advanced by the learned coun- sel for the petitioner the learned A.P.P. frankly conceded that the submissions were well founded and there was no scope to rebut the same. 7. It is by now well settled by a catena of decisions that Section 31(2) of the Licenses Unification Order has given unparalleled protection from prosecution to dealers under the Public Distribution System as they happen to be the agents of the Government. In the instant case the petitioner is a dealer under the Public Distribution System and as such he is entitled to the protection stated above. 8. Thus having regard to the facts and circumstances of the case as also the law in respect of such matters it is quite apparent that taking of cognizance under Section 7 of the E.C. Act is not sustainable in the eye of law is an abuse of the process of the Court. 9. Accordingly the impugned order dated 22.9.2007 passed by the learned Chief Judicial Magistrate, Samastipur in Kalyanpur P.S. Case No. 86 of 2006 is hereby quashed and the application is allowed.