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2008 DIGILAW 522 (PAT)

Arun Kumar Paswan @ Arun Kumar v. State Of Bihar

2008-03-20

ABHIJIT SINHA

body2008
Judgment 1. The petitioner, a dealer under the Public Distribution System, has moved this application for quashing of the entire criminal proceeding arising out of Sarai P.S. Case No. 69 of 2007 under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the E.C. Act") including the First Information Report thereof. 2. It appears that on receipt of complaints regarding the malfunctioning of the petitioner and his fair price shop, the Sub-Divisional Officer, Hajipur, by his Memo dated 7.5.2007 directed the Block Development Officer, Lalgunj, to get the matter enquired into and in compliance of the said directions, the Block Development Officer, Lalgunj, deputed the Block Veterinary Officer, Lalgunj, to make the desired enquiry. In course of the enquiry, it was allegedly detected that the petitioner had not distributed kerosene oil allotted for the month of February, 2007 amongst his consumers and that foodgrains had been distributed in the name of dead persons. Accordingly, the enquiry report dated 14.5.2007 of the Block Veterinary Officer was duly forwarded by the Block Development Officer to the Sub-Divisional Magistrate, Hajipur, who by his Memo dated 27.6.2007 directed the Block Supply Officer, Lalgunj, to register a case against the petitioner and it was on the basis of the written report dated 2.8.2007 of the Block Supply Officer that the aforesaid case came to be registered. 3. It has been submitted by the learned counsel for the petitioner that the F.I.R. does not disclose any element of cognizable offence and that the petitioner had been falsely implicated at the instance of Satya Narain Prasad Sinha, the Mukhiya who was inimical to the petitioner for having contested the election of Mukhiya against him and for having filed a complaint against him being Complaint Case No. 879 of 2007. The said Mukhiya had allegedly filed a false complaint against the petitioners malfunctioning and in connivance with the authorities had got prepared a false enquiry report. In this context it was submitted that the falsity of the case would be evident from the fact that kerosene oil for the month of February, 2007 was distributed in the presence of the Vigilance-cum-Distribution Committee and a certificate regarding the proper distribution had been granted by the Ward Member of the Panchayat. 4. In this context it was submitted that the falsity of the case would be evident from the fact that kerosene oil for the month of February, 2007 was distributed in the presence of the Vigilance-cum-Distribution Committee and a certificate regarding the proper distribution had been granted by the Ward Member of the Panchayat. 4. However, without dilly-dallying with these trivial issues, the instant application has to succeed on the following issues: (I) Dealers under the Public Distribution System and running fair price shops being representatives/agents of the State Government, in view of Section 31(2) of the Bihar Trade Articles (Licenses Unification) Order, 1984, they have been given due protection inasmuch as the Unification Order shall not be applicable to them with regard to sale or storage of the articles. A perusal of Clause 31(2)(c) of the Unification Order goes to show that the organization of the State Government and the agency approved by the State Government have specifically been exempted from the rigours of the Unification Order in respect of any violation relating to sale or storage for sale of trade articles by such agency. The petitioner being the agent of the State Government appointed under an agreement is absolved of any offence arising out of violation of the Unification Order with respect to sale or storage of the trade articles. Accordingly he cannot be prosecuted under Section 7 of the E.C. Act. (II) Section 7 of the E.C. Act deals with the persons who contravene any Order made under Section 3 of the E.C. Act but if there is no contravention of any Order then no criminal case can be launched against any person. The First Information Report herein does not disclose the nature of offence as to which of the Orders made under Section 3 of the E.C. Act had been violated. It is well settled by now that if the First Information Report/complaint does not disclose any offence then the Court can quash the prosecution under its inherent jurisdiction. (III) Clause 30 of Bihar Trade Articles Licenses Unification Order enumerates by designation the officers who have been vested with the power of entry, search and seizure. This provision being prohibitory in nature must be deemed to be mandatory. (III) Clause 30 of Bihar Trade Articles Licenses Unification Order enumerates by designation the officers who have been vested with the power of entry, search and seizure. This provision being prohibitory in nature must be deemed to be mandatory. The Block Veterinary Officer who had held the inquiry was not a competent officer under Clause 30 of the Unification Order not having been vested with powers of entry, search and seizure and, therefore, any F.I.R. based on such inquiry report could not be sustained in the eye of law. 5. For the reasons aforementioned I am of the opinion that the prosecution against the petitioner herein is an abuse of the process of the Court. Accordingly, the entire criminal proceeding against the petitioner arising out of Sarai P.S. Case No. 69/2007 is hereby quashed and the application is allowed.