Madhya Pradesh High Court
Brijbhushan Karolia vs The State Of Madhya Pradesh on 16 September, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16th OF SEPTEMBER, 2022
WRIT PETITION No. 21035 of 2022
BETWEEN:-
BRIJBHUSHAN KAROLIA S/O SHRI GAYA
PRASAD KAROLIA, AGED ABOUT 48 YEARS,
OCCUPATION: SALESMAN R/O VIDVAS, TEHSIL
SURKHI, DISTRICT SAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIL LALA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
ITS PRINCIPAL SECRETARY, FOOD AND CIVIL
SUPPLIES AND CONSUMER PROTECTION
DEPARTMENT, MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR S AGAR , DISTRICT SAGAR
(MADHYA PRADESH)
3. THE DISTRICT SUPPLY OFFICER SAGAR
DISTRICT SAGAR (MADHYA PRADESH)
4. THE JUNIOR SUPPLY OFFICER (RURAL), SAGAR,
DISTRICT SAGAR (MADHYA PRADESH)
5. THE THANA INCHARGE, P.S SURKHI DISTRICT
SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. SWATI ASEEM GEORGE, PANEL LAWYER)
This petition coming on for hearing on this day, the court passed the
following:
Signature Not Verified
ORDER
SAN This writ petition is filed under Article 226 of the Constitution of India Digitally signed by TULSA SINGH Date: 2022.09.21 19:42:00 IST being aggrieved of order dated 30/08/2022 passed by respondent No.2- 2 Collector, Sagar, Distt.Sagar so also the impugned FIR dated 01/09/2022 recorded in pursuance of the order of Collector (Annexure-P/4) being contrary to clause-16(8) of the M.P. Public Distribution System (Control) Order, 2015 without fulfilling the requirement of Clause-16(3) of such Control Order.
It is submitted that as per Clause-16 para-3 in case of suspension of a fair price shop, fair price shop allotment authority shall issue show cause notice to the concerned fair price shop within ten days and as far as possible, pass final order within three months. Clause-16(8) provides that on finding an irregularity in operation of a fair price shop, if it is expedient in the opinion of the Collector, prosecution against chairman or head of the society/salesperson/employee of institution may be initiated.
Reliance is placed to an order of Coordinate Bench of this Court dated 27th July, 2022 passed in W.P. No.7706/2022 (Anwar Khan Vs. State of M.P. and others) pointing out that if the opinion of the Collector is not in specific words, then no decision could have been said to be taken by the Collector, therefore, finding the decision of the Collector to be contrary to law, petition was allowed. In this case, reliance is also placed on a decision of Division Bench of this Court in W.P. No.9398/2021 decided on 22/09/2021.
Placing reliance on this material, it is submitted that impugned FIR registering case Crime No.0403/2022 (Annexure-P/4) and the order dated 30/08/2022 passed by respondent No.3, its approval dated 31/08/2022 given by respondent No.2 be quashed.
Learned Panel Lawyer for the respondents supports the decision.
Signature Not VerifiedAnnexure-P/1 is the report of the Food Branch showing report of the SAN Digitally signed by TULSA SINGH Regional Junior Supply Officer, Sagar (Rural) that on 12/5/2022 he had carried Date: 2022.09.21 19:42:00 IST out inspection of Government Fair Price Shop, Widvance 1001169 Tahsil, 3 Sagar in presence of present petitioner, Salesman Brijbhushan Karolia and found that stock rate list was not updated. No register of the Nigrani Samittee/Board under Right to Information Act, Samples were not exhibited. Beneficiaries who were present informed that in March and April, 2022 they were to receive food grains on four occasions but salesman gave them free ration under PMGKAY scheme only once and regular distribution of food grains was made only twice.
Shri Brijbhushan Karolia in his statement which was recorded accepted that for last six months, he had not distributed kerosene oil.
On physical verification of stock, a chart was prepared in which shortage was recorded to the tune of 255.44 quintals of wheat, 60.04 quintals of rice, one quintal of sugar, 1.01 quintal of salt. Thus, it was found that there was a prima facie misappropriation of articles to be distributed through PDS to the tune of Rs.10,12,940/- which was recoverable as arrears of land revenue from salesman. It is also noted that said act of the salesman amounts to violation of Clause-10(4), 11(8), 13(2) and 18 of the Control Order. So also provisions contained in Section 3/7 of the Essential Commodities Act.
The concurrence was taken from the Collector who directed for registration of FIR and thereafter FIR came to be registered.
A perusal of the provisions contained in Clause-10(4) reveals that as per Clause-10(4), salesperson of a fair price shop is required to maintain updated information in such manner as is directed by the Commissioner from time to time.
Signature Not VerifiedSAN Clause-11(8) provides that salesperson of fair price shop shall not refuse Digitally signed by TULSA SINGH Date: 2022.09.21 19:42:00 IST to distribute food grains and other commodities in such quantity and rate as 4 specified by the State Government to any ration card holder registered in that fair price shop.
Clause-13(2) of the Control Order provides that no person shall commit substitution/diversion/adulteration during transportation, storage or distribution of food grains and other essential commodities kept for distribution under 'Targeted Public Distribution System'.
Clause-18 of the Control Order, empowers the Commissioner, Collector, Shop Allotment Authority to issue directions within their respective jurisdiction to ensure the planned distribution of essential commodities under the targeted public distribution system and the fair price shop/co-operative society/institution/body/group/agency are duty bound to follow such directions.
Section 3 of the Essential Commodities Act,1955 deals with powers to control production, supply, distribution, etc. of essential commodities. Section 3(2)(e) and (f) respectively prohibits the withholding from sale of any essential commodities ordinarily kept for sale; and confers the responsibility to sell the whole or specified part of the quantity held in the stock or produced or received by him.
Any violation of provisions contained in Section 3 of the Essential Commodities Act attracts penalties as are provided under Section 7 of the Act of 1955.
When provisions contained in Control Order are taken into consideration, then it is evident that Control Orders have been framed in exercise of powers conferred by Section 3 read with Section 5 of the Essential Commodities Act, 1955 and in pursuance of the S.O.681 (E) and S.O. 682 (E) both dated 30th Signature Not Verified SAN November, 1974 of Ministry of Industries and Civil Supplies (Department of Digitally signed by TULSA SINGH Date: 2022.09.21 19:42:00 IST Civil Supplies and Cooperation) and GSR 800 dated 9th June, 1978 of Ministry 5 of Agriculture and Irrigation (Department of Food), the State Government, hereby makes the following order regulating the control of Targeted Public Distribution System in State of Madhya Pradesh.
Thus, the provisions of Control Order emanates from the provisions contained in the Essential Commodities Act and do not supersede the substantive law contained in Essential Commodities Act, 1955. Another issue which is to be examined herewith that whether there is non-application of mind by the Collector i.e. whether he had applied his mind or not while granting sanction for registration of FIR.
File was placed before the Collector and the Collector has himself written a note that FIR be filed. No material is brought to notice of this Court except that file was swiftly cleared on the same date to show that there is non- application of mind of the Collector in granting permission to register FIR.
Thought learned counsel for the petitioner has vehemently argued that as per Clause 16(2), in case of violation under Clause-13 for quantity more than 10 percent of the monthly allocation or repetition of violation under the same clause, a person shall mandatorily be prosecuted under Section 7 of the Essential Commodities Act, but, variation in 10 percent quantity is for a period under enquiry which exceeds one month, therefore, provisions of this clause will not be attracted though appears to be attractive at the first glance but has no substance inasmuch as there is tepid admission of variation of more than 10 percent of the quantity at the time of verification of the stock.
As far as provisions contained in Section 13(2) of the Essential Signature Not Verified SAN Commodities Act is concerned, it is incorporated to take away arbitrary Digitally signed by TULSA SINGH exercise of discretion by the authorities. But, it cannot be used as a rescue trap Date: 2022.09.21 19:42:00 IST 6 when admittedly, there is violation of the provisions contained in the Control Order and the Essential Commodities Act and admittedly variation is more than 10 percent.
These aspects, it appears, were not brought before the Coordinate Bench of this Court which passed the order dated 31st January, 2022 in W.P. No.2286/2022 and order dated 27th July, 2022 passed in W.P. No.7706/2022. Even otherwise law is settled that civil and criminal remedies operate in different spheres. When resort is taken to the criminal remedy, it cannot be a defence that civil remedy is available and without exhausting civil remedy, criminal remedy cannot be taken recourse to or vice-versa.
As far as quashing of FIR is concerned, law is well developed. In the case of Madhavrao jiwajirao scindia and others Vs. Sambhajirao Chandrojirao Angre and others, (1988) 1 SCC 692, State of Haryana and others Vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, State of Bihar Vs. Rajendra Agrawalla, (1996) 8 SCC 164, so also in the case of M/S Neeharika, Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others (2021 SCC Online SC 315, that a complaint can be quashed where allegations made in the complaint even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
In M/S Neeharika, Infrastructure Pvt. Ltd. (supra), Hon'ble Supreme Court has held that right to investigate a matter in case of commission of cognizable offence cannot be taken away and its a prerogative of the Police Authorities to investigate such matter. In fact, in case of Indian Oil Signature Not Verified SAN Corporation Vs. NEPC India Ltd. and others, (2006) 6 SCC 736, Hon'ble Digitally signed by TULSA SINGH Date: 2022.09.21 19:42:00 IST Supreme Court was pleased to set aside the order of the High Court quashing 7 the complaint. Thus, when this legal position is taken into consideration, then there is no ground for quashing of FIR.
Accordingly, this writ petition fails and is hereby dismissed.
(VIVEK AGARWAL) JUDGE ts Signature Not Verified SAN Digitally signed by TULSA SINGH Date: 2022.09.21 19:42:00 IST