Madhya Pradesh High Court
Rajendra Singh Rajput vs The State Of Madhya Pradesh on 17 November, 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 17th OF NOVEMBER, 2022
WRIT PETITION No. 27356 of 2021
BETWEEN:-
RAJENDRA SINGH RAJPUT S/O SHRI
VISHWANATH SINGH RAJPUT, AGED ABOUT 44
YEARS, OCCUPATION: SALESMAN, POSTED AT
PRESENT ADIM JATI SEWA SAHKARI SAMITI
MARYADIT BALEH REHELI REHELI, DISTT
SAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DEVENDRA KUMAR TRIPATHI, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR ITS
SECRETRAY FOOD CIVIL SUPPLIES AND
CONSUMER PROTECTION MANTRALAYA
VALLABH BHAWAN BHOPAL MP (MADHYA
PRADESH)
2. COLLECTOR S AGAR DISTT.SAGAR (MADHYA
PRADESH)
3. SUB DIVISIONAL OFFICER (REVENUE) AND
EXECUTIVE MAGISTRATE REHLI DISTT.SAGAR
(MADHYA PRADESH)
4. JUNIOR SUPPLY OFFICER FOOD CIVIL SUPPLIES
AND CUNSUMER PROTECTION REHLI
DISTT.SAGAR (MADHYA PRADESH)
5. STATION HOUSE OFFICER SAGAR P.S. REHLI
DISTT.SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH BHATNAGAR, PANEL LAWYER)
Signature Not Verified
SAN
Th is petition coming on for hearing this day, th e court passed the
Digitally signed by AMIT JAIN
Date: 2022.11.18 18:44:50 IST
following:
ORDER
2 This writ petition under Article 226 of the Constitution of India is filed by the Salesman of Adim Jati Sewa Sahkari Samiti Maryadit Baleh, Tahsil Rehli, District Sagar challenging the FIR dated 1.4.2021 lodged by the District Authorities pertaining to Crime No.0219/2021 for the offence under Sections 3 & 7 of the Essential Commodities Act, 1955 mainly on two grounds; (1) there is no sanction of the Collector, District Sagar and (2) as per Clause 16(2) of the provisions contained in Madhya Pradesh Public Distribution System (Control) Order, 2015, the FIR could have been lodged only in case of violation under Clause 13 for quantity more than 10% 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, 1955.
It is submitted by Shri Devendra Kumar Tripathi, learned counsel for the petitioner that variation in the quantity is not more than 10% of the monthly allocation and, therefore, there is no justification in lodging of the FIR against the present petitioner.
It is submitted by Shri Piyush Bhatnagar, learned Panel Lawyer for the State in his turn submits that the State has filed copy of the order sheet as Annexure R/3 dated 6.3.2021, which depicts that the concurrence of the Collector, District Sagar was obtained before lodging of the FIR, therefore, the first ground is not available any more. He also submits that as per Annexure R/1, which is the report of Panchnama drawn by the Junior Supply Officer, Rehli, District Sagar and Tahsildar Rehli, District Sagar, the variation is of high magnitude, therefore, no indulgence is required in the matter.
Signature Not VerifiedAfter hearing learned counsel for the parties and going through the SAN averments made in the writ petition, it is evident that the first issue of not Digitally signed by AMIT JAIN Date: 2022.11.18 18:44:50 IST obtaining sanction from the Collector of District Sagar is put to rest in terms of 3 the order sheet Annexure R/3 dated 6.3.2021 and that does not require any further elaboration. As far as the second issue is concerned, that has already been dealt with by this Court vide order dated 16.9.2022 in Writ Petition No.21035/2022 (Brajbhushan Karolia versus State of Madhya Pradesh & Others).
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. Clause 11(8) provides that salesperson of fair price shop shall not refuse to distribute food grains and other commodities in such quantity and rate as specified by the State Government to any ration card holder registered in that fair price shop. Clause 13(2) 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 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 the essential commodities. Section 3(2)(e) & 3(2)(f) respectively prohibit the withholding from sale of any essential commodities ordinarily kept for sale and confer the responsibility to Signature Not Verified SAN sell the whole or specified part of the quantity held in the stock or produced or Digitally signed by AMIT JAIN Date: 2022.11.18 18:44:50 IST received by him. Any violation of provisions contained in Section 3 of the 4 Essential Commodities Act, 1955 attracts penalties as are provided under Section 7 of the Essential Commodities Act, 1955.
W h e n the provisions contained in the Madhya Pradesh Public Distribution System (Control) Order, 2015 are taken into consideration then it is evident that Madhya Pradesh Public Distribution System (Control) Order, 2015 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 November, 1974 of the Ministry of Industries and Civil Supplies (Department of Civil Supplies and Cooperation) & GSR 800 dated 9th June, 1978 of the Ministry of Agriculture and Irrigation (Department of Food) and 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 the Madhya Pradesh Public Distribution System (Control) Order, 2015 emanate from the provisions contained in the Essential Commodities Act, 1955 and do not supersede the substantive law contained in Essential Commodities Act, 1955. Another issue, which is to be examined herewith, is as to 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.
Thought learned counsel for the petitioner vehemently argues that as per Clause 16(2) of the Madhya Pradesh Public Distribution System (Control) Order, 2015, in case of violation under Clause 13 for quantity more than 10% of the monthly allocation or repetition of violation under the same clause, a Signature Not Verified SAN person shall mandatorily be prosecuted under Section 7 of the Essential Digitally signed by AMIT JAIN Date: 2022.11.18 18:44:50 IST Commodities Act, 1955 but the variation in 10% quantity is for a period under 5 enquiry, which exceeds one month, therefore, the provisions of the aforesaid Clause will not be attracted though appears to be attractive at the first glance but has no substance inasmuch as there is tacit admission of variation of more than 10% of the quantity at the time of verification of the stock.
A s far as the provisions contained in Section 16(2) of the Essential Commodities Act, 1955 is concerned, they are incorporated to take away arbitrary exercise of discretion by the authorities but it cannot be used as a rescue trap when admittedly there is violation of the provisions as contained in the Madhya Pradesh Public Distribution System (Control) Order, 2015 and the Essential Commodities Act, 1955 and admittedly variation is more than 10 percent.
As far as quashing of the FIR is concerned, the law is well developed in Madhavrao Jiwajirao Scindia & Others versus Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692, State of Haryana and others versus Bhajan Lal & Others 1992 Supp (1) SCC 335, State of Bihar versus Rajendra Agrawalla (1996) 8 SCC 164 & M/s Neeharika Infrastructure Private Limited versus State of Maharashtra & 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 a case alleged against the accused. In M/s Neeharika Infrastructure Private Limited versus State of Maharashtra & Others (supra), Hon'ble the Supreme Court has held that the right to investigate a matter in case of Signature Not Verified SAN commission of cognizable offence cannot be taken away and it is a prerogative Digitally signed by AMIT JAIN of the Police Authorities to investigate such matter. In fact, in Indian Oil Date: 2022.11.18 18:44:50 IST 6 Corporation versus NEPC India Limited & Others (2006) 6 SCC 736, the Apex Court was pleased to set aside the order of the High Court quashing the complaint. Thus, when this legal position is taken into consideration, then there is no ground for quashing of the FIR.
Accordingly, this writ petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.11.18 18:44:50 IST