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2013 DIGILAW 87 (ORI)

Kanhu Charan Dash v. State of Orissa

2013-04-03

B.K.NAYAK

body2013
ORDER 1. Heard learned counsel for the petitioner and learned Additional Standing Counsel for the Vigilance Department Perused the record. 2. Order dated 24.11.2012 passed by the learned Chief Judicial Magistrate, Gajapati, At-Paralakhemundi in G.R. Case No.23 of 2011 rejecting the petitioner's application for discharge has been assailed in this Criminal Revision. 3. On the basis of F.I.R. dated 24.05.2011 lodged by DSP, Vigilance, Berhampur, Berhampur Vigilance P.S. Case No.23 of 2011 corresponding to Vigilance G.R. Case No.23 of 2011 of the Court of Chief Judicial Magistrate, Gajapati, At-Paralakhemundi has been registered against the petitioner for alleged commission of offence under Section 7 of the Essential Commodities Act. 4. Allegations in the F.I.R. are that the petitioner is the Sales Assistant-cum-godown Assistant-in-charge of the Departmental Storage Centre, R. Udayagiri. On receipt of information about bungling in distribution of essential commodities to the retailers, the vigilance team made a surprise check of the departmental godown on 03.06.2010 in presence of ACSOs Sadar, Paralakhemundi and Inspector of Supplies, Kashinagar. The petitioner-Sales Assistant was present in the god own and on being asked he produced the registers and records maintained in the godown. It is further alleged that on verification of Tally Register, Stock Register, Issue Register and Sale Register for BPL rice, AAY rice, APL rice, Arnapurna rice, SC & ST rice, wheat and levy sugar, it was found that there was 551.38 quintal of rice and 21.30 quintal of sugar as per book balance. But on physical verification of stock, it was found that there was 576 quintals of rice and 41.55 quintals of sugar in the stock. Thus, there was 24.62 quintals of excess rice and 10.25 quintals of excess sugar than the book balance. It is further alleged that on a preliminary inquiry it was found that Sri Jayashreeram SHG, retailer for Nuagarh G.P. was issued with 93.5 quintals of rice on 1.6.2010 for distribution. But the SHG took only 180 quintals of rice leaving the balance 13.5 quintals of rice in the godown. Similarly, MD Lamps, R. Udayagiri was issued with 191.05 quintals of rice on 02.06.2010. But actually, Sri Dash has given only 180 quintals of rice leaving the balance 11.05 quintals of rice in the godown. On 03.06.2010, the petitioner has shown issue of 10.25 quintals of sugar to MD, Lamps R. Udayagiri, but he has not made delivery of the same to the Lamps. But actually, Sri Dash has given only 180 quintals of rice leaving the balance 11.05 quintals of rice in the godown. On 03.06.2010, the petitioner has shown issue of 10.25 quintals of sugar to MD, Lamps R. Udayagiri, but he has not made delivery of the same to the Lamps. It is, therefore, alleged that the petitioner was issuing less quantity of PDS Commodities to the retailers although he is showing issue of full quota of the same in the issue registers, for which there was 24.62 quintals of excess rice and 10.25 quintals of excess sugar found in the godown over and above the book balance, which was kept for the purpose of black marketing. It is alleged that the petitioner as such violated Clause-11 of the Orissa Public Distribution System (Control) Order, 2008 (in short the PDS (Control) Order, 2008) by retaining the excess stock showing false distribution and as such he is liable under Section 7 of the Essential Commodities Act. The petitioner filed a petition before the Court below to discharge him but by the impugned order, the learned Chief Judicial Magistrate, Gajapati, At-Paralakhemundi has rejected the said petition, mainly on the ground that the question of violation of Clause-11 of the PDS (Control) Order, 2008 is the matter for trial and, therefore, there is no justifiable ground to discharge the accused. 5. Learned counsel for the petitioner submits that Clause-11 of the PDS (Control) Order, 2008 contains different sub clauses, such as (1) (a) to (1) (1) and (2) (a) to (2) (e) and nothing has been shown as to which sub clause of Clause-11 has been violated. It is also his submission that the retailers who were issued with quota, could not lift the entire quota issued in their favour because of their transportation and labour problem, as evident from the statements of such retailers and that they in fact lifted those balance quantity on the very next day, i.e. 04.06.2010 and, therefore, there is no material on record with regard to black marketing of PDS commodities or violation of any provisions of Clause-11 of the PDS (Control) Order, 2008. It is, therefore, his submission that there being no prima facie case of any violation of Clause-11 of the PDS (Control) Order, 2008 by the petitioner no charge can be framed against him and, therefore, the rejection of his petition for discharge is unsustainable. It is, therefore, his submission that there being no prima facie case of any violation of Clause-11 of the PDS (Control) Order, 2008 by the petitioner no charge can be framed against him and, therefore, the rejection of his petition for discharge is unsustainable. 6. The learned Standing Counsel for the Vigilance Department submits that the violation alleged against the petitioner relates to Clause 11 (1) (b) of the PDS (Control) Order, 2008 and that since the petitioner showed issue of the Commodities in the register but actually retained part of such rice and sugar, he has prima facie violated Clause 11 (1) (b) of the PDS (Control) Order, 2008, and therefore, there is no infirmity in the impugned Order. 7. Clause 11 of the PDS (Control) Order, 2008 prescribes the responsibilities and duties of wholesaler/sub wholesaler/storage Agent. Sub-clause (1) (b) of Clause-11 reads as under: – "(1) The Wholesalers including Sub Wholesalers and Storage Agents shall be responsible to: (a) xxx xxx (b) Supply the Public Distribution System commodities to the retailer or sub wholesaler as the case may be, immediately on demand and subject to the prepayment of cost of commodities and production of tally register etc. as per prescribed procedure." It is evident that the wholesaler and Store Agent shall be responsible to supply the Public Distribution System Commodities to the retailer or sub-wholesaler as the case may be, immediately on demand and subject to payment of cost of commodities and as per prescribed procedure. 8. Admittedly, the Tally Register, Stock Register, etc. showed distribution of 93.5 quintals of rice to Sri Jayashreeram SHG, retailer on 01.06.2010 but the SHG took 80 quintals leaving a balance of 13.5 quintals of rice in the petitioner's godown. Similarly the MD LAMPS, R. Udayagiri lifted only 180 quintals of rice as against issue of 191.05 quintals leaving a balance of 11.06 quintals of rice in the godown of the petitioner. The MD LAMPS, R. Udayagiri also was shown to have been issued 10.25 quintals of sugar on 03.06.2010, but same had not been lifted from the godown by the time of visit of the vigilance team on that day. 9. The MD LAMPS, R. Udayagiri also was shown to have been issued 10.25 quintals of sugar on 03.06.2010, but same had not been lifted from the godown by the time of visit of the vigilance team on that day. 9. The statement of Mimansa Kumar Satpathy, the Sales Assistant, LAMPS R. Udayagiri recorded on 24.05.2011 by the Investigating Officer reveals that on 02.06.2010 he paid money for issue of 191.05 quintals of rice and that was reflected in the register, but he lifted 180 quintals leaving the balance 11.05 quintal due to transportation problem and so also on 03.06.2010 though 10.25 quintals of sugar was issued, the same was not lifted from the D.S.C. on that day because of labour and transportation problem and that he lifted the said balance rice and sugar from the Storage Centre on 04.06.2010. 10. Similarly, the statement of Surendra Dalei, the Secretary of Sri Jayashreeram SHG reveals that as against the issue of 93.5 quintals of rice on 01.06.2010 he and those President of SHG could be able to carry only 180 bags, i.e. 80 quintals of rice because of want of space in the vehicle, leaving the balance 13.5 quintals of rice in the godown of the petitioner and in fact he lifted the same later. His statement also reveals that on 01.06.2010 the petitioner asked them to take away the balance 13.5 quintals of rice early. Similarly the statement of Rabindra Subudhi, the President of Sri Jashreeram SHG reveals that as against the issuance of 93.5 quintals Of rice on 1.6.2010 he lifted only 80 quintals (160 bags) on that day and the petitioner told them to take away the balance soon and that the balance 13.5 quintals was taken later by the Secretary of the SHG. 11. From the aforesaid statements of the retailers, it is clearly revealed that they were unable to lift the entire quantity of rice and sugar issued in their favour because of transportation and labour problem and that the petitioner himself requested them to take away the balance soon. 12. Violation of Clause 11 (1) (b) of the PDS (Control) Order, 2008 would occur where even after payment of cost of the commodities and on demands the wholesaler/storage agent failed to supply the commodities immediately. 12. Violation of Clause 11 (1) (b) of the PDS (Control) Order, 2008 would occur where even after payment of cost of the commodities and on demands the wholesaler/storage agent failed to supply the commodities immediately. Unless there is material to show that the storage agent or the wholesaler deliberately refused or failed to supply the commodities on demand for which price has already been paid, there cannot be any violation of Clause 11 (1) (b) of the PDS (Control) Order, 2008. 13. The statements of the material witnesses, i.e., the retailers who were issued with the rice and sugar, as seen above, go to show that the petitioner has neither refused nor deliberately failed to supply the rice and sugar to the retailers. On the contrary, it is because of the difficulties and inconvenience of the retailers regarding transportation etc. they failed to lift the entire quaintly issued in their favour. Rather the petitioner advised them to 1m the balance left by them in godown soon. 14. Having regard to the circumstances as aforesaid it cannot be said that the petitioner has violated Clause 11 (1) (b) of the PDS (Control) Order, 2008 and, therefore, he cannot be charged under Section 7 of the E.C. Act. Accordingly, the impugned order is set aside and the petitioner is discharged from the charge leveled against him. The CRLREV is thus allowed. CRLREV allowed.