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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4647/2011 & CM No.9430/2011 (for stay)
M/S JAI AMBEY STORE ..... Petitioner
Through: Mr. Pardeep Gupta & Mr. Keshav
Kumar Choudhary, Advocates.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. S. Fatima, Adv. for Ms. Anjana
Gosain, Adv. for GNCTD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 07.07.2011
1. The writ petition impugns the order dated 16th June, 2011 of the Appellate Authority, Department of Food, Supplies & Consumer Affairs, Govt. of NCT of Delhi dismissing the appeal of the petitioner against the order dated 18th January, 2011 of the Assistant Commissioner cancelling the authorization/license granted to the petitioner for a fair price shop No.8982 in the name and style of M/s Jai Ambey Store.
2. The following facts are not in dispute.
(i) On 9th December, 2010, a raid was conducted by the officials of the Delhi Police on the godown of one Maha Durga Shiv Shakti W.P.(C) No.4647/2011 Page 1 of 8 Store also granted license to operate a fair price shop being no.7784. In the said raid, gunny bags of Specified Food Articles (SFAs) meant for distribution through the shop of the petitioner were found in the godown of Maha Durga Shiv Shakti Store.
(ii) An inspection of the shop of the petitioner was carried out on 13th December, 2010 and in physical verification of SFAs 304 bags of wheat and 112 bags of rice of about 50 Kgs. each were found.
(iii) A show cause notice dated 31st December, 2010 was issued to the petitioner in which it was inter alia stated that bags of SFAs having the markings of the fair price shop of the petitioner were seized from the godown of Maha Durga Shiv Shakti Store; that on inspection on 13th December, 2010 of the shop of the petitioner, the quantity of wheat and rice found was inclusive of the supplies which the petitioner claimed to have received on 9th December, 2010 through the vehicle which had been seized in the godown of Maha Durga Shiv Shakti Store; that the same indicated diversion of SFA by the petitioner with the connivance of Maha Durga Shiv Shakti Store inasmuch as the documents of receipt of supplies on 9 th December, 2010 had been signed by the petitioner without receiving the said goods and the petitioner had also recorded the goods in his stocks W.P.(C) No.4647/2011 Page 2 of 8 register without the goods having been received. It was thus alleged that the petitioner had diverted the SFAs meant for public distribution for selling in black market and had contravened the provisions of Delhi Specified Articles (Regulation of Distribution) Order, 1981. It was also alleged that the petitioner had not submitted the certificates stating that he had personally met the Head of Family of each Consumer Card user, verified his address and ascertained the location of his address, also in violation of the order aforesaid.
(iv) The petitioner submitted a reply dated 17th January, 2011 to the aforesaid show cause notice denying any collusion with Maha Durga Shiv Shakti Store and stating that the SFAs were delivered at his shop between 12.00 to 3.00 pm and after unloading his goods, the vacant truck left his place and it is for this reason only that in the inspection on 13th December, 2010 no substantial deficiency in the SFAs was found. It was however not disputed that the petitioner had not submitted the certificate of meeting the Head of Family of each Consumer Card user, as he was required to submit.
3. The Assistant Commissioner as aforesaid, for the reason of gunny bags of SFAs, supplied by the Food Corporation of India (FCI) and meant for distribution through the fair price shop of the petitioner having been W.P.(C) No.4647/2011 Page 3 of 8 found in the godown of Maha Durga Shiv Shakti Store, concluded that the petitioner had diverted the said SFAs in the open market and accordingly cancelled the license of the petitioner.
4. The Appellate Authority in the order impugned held that the name of the fair price shop of the petitioner had clearly come out in the records of the Police relating to the raid on the godown of Maha Durga Shiv Shakti Store, where it had been mentioned that wheat bags and rice bags having the markings of the fair price shop of the petitioner had been found in the godown of Maha Durga Shiv Shakti Store and the same showed the involvement of the petitioner. It was further held that there was no other explanation for the gunny bags meant for the shop of the petitioner being found in the premises of Maha Durga Shiv Shakti Store and the petitioner had not been able to explain as to how the rice and wheat bags meant for his shop were found at the premises of another fair price shop. It was further held that the truck carrying goods for supply to the shop of the petitioner on 9th December, 2010 having been seized in the premises of Maha Durga Shiv Shakti Store, could not have delivered the stocks to the petitioner as claimed by the petitioner. The Appellate Authority thus concluded that the petitioner in the four days between the raid in the godown of Maha Durga Shiv Shakti Store and the inspection of the shop of the petitioner appeared W.P.(C) No.4647/2011 Page 4 of 8 to have manipulated his stocks to contend that supplies received on 9 th December, 2010 were in his shop.
5. The star argument of the counsel for the petitioner is that while the Appellate Authority has dismissed the appeal of the petitioner, it has allowed the appeals of others similarly placed as the petitioner and orders in whose favour are filed as Annexures P-10 to P-12 to the writ petition.
6. I have perused Annexures P-10 to P-12 but I am unable to find that their cases are the same as against the petitioner. Firstly, there was no allegation against them of non-submission of the certificate aforesaid. Secondly, it was alleged against them also that gunny bags meant for them were also found in the godown of Maha Durga Shiv Shakti Store but the Appellate Authority found that their fair price shop number did not match with the number on the gunny bags found in the godown of Maha Durga Shiv Shakti Store. The said argument of the petitioner thus fails.
7. The counsel for the petitioner has contended that as long as in the inspection on 13th December, 2010 of the shop of the petitioner, no substantial deficiency in stocks was found, the license of the petitioner ought not to be cancelled.
8. I am unable to agree. The possibility of the petitioner in the four days between the raid in the godown of Maha Durga Shiv Shakti Store and the W.P.(C) No.4647/2011 Page 5 of 8 inspection in his premises, making up his stocks cannot be ruled out. No error is thus found in the inference so drawn in the impugned order.
9. The report of inspection on 13th December, 2010 of the shop of the petitioner does not state that the stocks found were in the gunny bags through which the supplies on 9th December, 2010 are claimed to have been received by the petitioner at his shop and seizure whereof earlier on 9th December, 2010 in the godown of Maha Durga Shiv Shakti Store is not disputed. The petitioner in his reply to the show cause notice did not state that the gunny bags bearing his fair price shop number and found in the godown of Maha Durga Shiv Shakti Store, could not be his, inasmuch as the gunny bags dispatched by the FCI and bearing his fair price shop number were, in the inspection on 13th December, 2010 found in his shop.
10. Since the proceedings against the petitioner were initiated for the reason of discovery of gunny bags of SFAs meant for the shop of the petitioner being found in the godown of Maha Durga Shiv Shakti Store, the only explanation which the petitioner was required to furnish was of the same and which has not been furnished either before the Department or first Appellate Authority or before this Court.
11. Faced with the aforesaid the counsel for the petitioner has contended that it was for the respondents to allege that in the inspection on 13 th W.P.(C) No.4647/2011 Page 6 of 8 December, 2010 of the shop of the petitioner, the gunny bags bearing the fair price shop number of the petitioner and through which supplies were made on 9th December, 2010 were not found.
12. The argument though attractive holds no water. The explanation had to be rendered by the petitioner and the counsel for the petitioner cannot on the basis of technicalities of law defeat the obvious. The strict rules of criminal prosecution cannot be invoked. The petitioner has no absolute right to carry on the said trade and has merely been granted a license on the terms and conditions thereof and if the respondents who had granted the license owing to the facts aforesaid, entertain suspicion about the conduct of the petitioner, in my opinion the same is sufficient to cancel the license particularly when this Court also does not find any perversity in such suspicion. It cannot be lost sight of that the complaints against the fair price shops of diverting the SFAs meant for poor and needy to the open market and in the process illegally enriching themselves are rampant. This Court cannot, in exercise of power of judicial review, lightly interfere with such actions of the authorities and such interference may not only demoralize the authorities responsible for taking action but also encourage the other licensees to indulge in similar practices.
13. The petitioner though claims to have received the supplies on 9 th W.P.(C) No.4647/2011 Page 7 of 8 December, 2010, has not placed before this Court any document of having so received the supplies. I am unable to assume that when such goods are delivered/received, no document with respect thereto will be created/maintained. The counsel for the petitioner though is unable to inform the prescribed procedure for such delivery and as to whether any document in this regard exists, seeks time to produce the same.
14. Since the repercussions of the order against the petitioner are severe, it is deemed expedient to grant an opportunity to the petitioner. The argument of parity with order dated 23rd May, 2011 in W.P.(C) No.8082/2010 titled Rajesh Gupta Vs. Govt. of NCT of Delhi shall also be considered on that date.
List for further hearing on 13th July, 2011.
CM No.9431-32/2011 (both for exemption) Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW, J JULY 07, 2011 bs W.P.(C) No.4647/2011 Page 8 of 8