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2012 DIGILAW 1321 (JHR)

Usha Devi v. State of Jharkhand

2012-09-05

R.R.PRASAD

body2012
ORDER By the Court.- This application has been filed for quashing of the FIR of Bagodar P.S.- Case No. 190 of 2012 registered under Section 7 of the Essential Commodities Act for contravening the terms and conditions of the licence issued under Bihar Trade Articles (Licences Unification) Order, 1984. 2. It is the case of the prosecution that when business premises of this petitioner, was inspected by the Sub-divisional Officer, Giridih on 19.11.2011 complaints were made by the card-holders that the commodities are being distributed in most irregular manner and that commodities are being given in less quantity still excess price is charged:- On such allegation. FIR was lodged by Block Supply Officer, Giridih which was registered as Bagodar P.S. Case No. 190 of 2012. 3. Mr. R. Krishna, learned counsel appearing for the petitioner submits that on account of alleged violation the provision as contained in Sections 5(1), 5(2) and 6(4) of Public Distribution System (Control) Order case has been lodged but accepting the entire allegation to be true, none of the alleged offences gets attracted as Clause 5(1) of the Public Distribution System (Control) Order, never concerns with the distribution of the commodities by the PDS Dealer whereas Clause 5(2) is not in existence and so far contravention of clause 6(4) of the said order is concerned, that is with respect to diversion of commodities while taking it from the Central go down to fair price shop which is never the case of the prosecution. 4. Learned counsel appearing for the petitioner submits that the Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order. 2001 whereby Annexe 6 to the Public Distribution System Order does prescribe that the State Governments are to issue an order under Section 3 of the Essential Commodities Act regulating sale and distribution of the commodities relating to Public Distribution System but the State Government of Jharkhand has not issued any such order under Section 3 of the Public Distribution System (Control) Order, 2001 and thereby the PDS Dealers who even indulge themselves with the illegality and irregularity in the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted. Thus, prosecution against the petitioner gets vitiated. 5. Mr. Thus, prosecution against the petitioner gets vitiated. 5. Mr. Mukhopadhyay, learned counsel appearing for the State submits that the Dealer under the Public Distribution System are being governed by the Bihar Trade Articles (Licences Unification) Order, 1984 and under that provision licences are being given to the PDS Dealer to deal with the matter relating to distribution of the commodities and therefore, unless that Unification Order is repealed specifically by any subsequently order, the provision of the said Unification Order would remain in vogue and thereby FIR never warrants to be quashed. 6. The proposition which has been advanced on behalf of the State seems to be contrary to the provision as contained in Clause 14 of the Public Distribution System (Control Order, 2001 which reads as under : 14. "Provisions of the Order to prevail over previous orders of State Governments.-The provisions of this order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement." 7. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provision as contained in Clause 14. 8. In such situation, the provision of the Unification Order after commencement of the Public Distribution System (Control) Order, 2001 would not be workable so far it relates to the matter relating to distribution of PDS commodities. 9. Similar issue fell for consideration before the Patna High Court in a case of Maheshwar Prasad and another v. State of Bihar, 2007 (2) PLJR 103 wherein it has been held that previous order relating to Public Distribution System becomes ineffective on commencement of the Public Distribution System (Control) Order, 2001. 10. Moreover, alleged violation of the provision as contained in Sections 5(1), 5(2) and 6(4) of the Public Distribution System (Control) Order, 2001 do not get attracted and as such, any prosecution on that account would be bad. 11. Under the circumstances, first information report of Bagodar P.S. case No. 190 of 2012 is hereby quashed. 12. In the result, this application stands allowed. Application allowed.