Shishupal Singh (Fair Price ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 7435 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 01.03.2023
 
Delivered on 15.03.2023
 
Court No. - 76
 

 
Case :- WRIT - C No. - 8026 of 2020
 

 
Petitioner :- Shishupal Singh (Fair Price Dealer Manjhola)
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Abdul Majeed,Sufia Saba
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Licence of petitioner's fair price shop was suspended on 31.08.2018 and a show cause notice was issued on the ground that E-PoS Machine was misused and tempered so that on the basis of entry of a single Aadhar card foodgrains were issued in the name of as many as 150 cardholders and as such foodgrains were not distributed to real cardholders.

2. Petitioner submitted reply and denied allegations and that E-PoS Machine cannot be tempered. There was no evidence that it was tempered and that there was no prior complaint against petitioner.

3. District Supply Officer, Moradabad considered reply filed by petitioner and found that no reasonable explanation was submitted by petitioner. It was also taken note that data of E-PoS Machine was examined by NIC and it was found that Aadhar card number was edited and number of other Aadhar card was seeded and foodgrains were issued to other persons by taking thumb impression on Biometric machine. List of about 150 transactions wherein one Aadhar card was used, was also made part of order dated 28.01.2019 whereby petitioner's fair price shop licence was cancelled.

4. Petitioner filed appeal against order dated 28.01.2019, however, the same was also rejected by means of order dated 05.09.2019 passed by Commissioner, Moradabad Division, Moradabad. Both these orders dated 28.01.2019 and 05.09.2019 are impugned in this writ petition.

5. Ms. Sufia Saba, learned counsel for petitioner, submits that explanation of petitioner was not considered. There was no proof that E-PoS Machine was tempered and report of NIC cannot be construed to be a sole ground to cancel petitioner's fair price shop licence.

6. Per contra, learned Standing Counsel appearing for State-Respondents supported impugned order for reasons given therein. He submits that data of E-PoS Machine was examined by NIC and it was found that single Aadhar card was used to issue foodgrains to as many as 150 cardholders. The report of NIC cannot be doubted.

7. Heard learned counsel for parties and perused the material available on record.

8. The issue of E-PoS has been dealt in detail by a Coordinate Bench of this Court in Awadhesh Kumar vs. State of U.P. and others, 2022(3) ADJ 53 and relevant paragraphs of judgment are reproduced as under:

"65. This is a case affecting 43 districts of the State in which, in the month of July, 2018, by the use of E-PoS Machine, ration meant for poor and eligible cardholders to be distributed from the Central Pool by the State Agencies have been syphoned off. With the advancement of technology and more and more use in daily life, the effort is for upliftment of life of an individual both by the State and through individual effort.

66. Here is a case where the Government made effort to stop pilferage in the public distribution system, for the first time by enacting Act of 2013, thereafter framing Rules of 2015, mandating and bringing in the use of technology through E-PoS Machine, wherein the data of a cardholder was to be feeded and by use of his biometric authentication, ration was to be distributed. The sole aim and purpose was to eliminate in the Public Distribution System, the pilferage of goods by the dealers by not providing the benefit which was extended by the Government through various beneficial schemes meant for poor and downtrodden who are forced to live life of poverty and hunger. The basic object was to eliminate hunger and to fulfil the goal enshrined in our Constitution that an individual lives a life of dignity.

67. The Aadhaar Act of 2016 gave a boost to the objective of Act of 2013, and after implementation and its validity being upheld by the Apex Court in K.S. Puttaswamy's case (supra), it became easy for the Government in fulfilling its object by entering the details of an individual cardholder in E-PoS Machine and only on the verification of biometric, which was done by the Authority known as UIDAI through server of NIC that ration can be distributed.

68. This system was introduced so as to break corrupt nexus between the dealers and the officials of the Food and Civil Supply Department. Without the authentication of biometric of a cardholder, ration could not be distributed. Once, the biometric was used for current cycle, it gets locked and second transaction was not possible. The Government could now keep an eye and have the exact figure of the ration/essential commodities sent by it from the Central Pool to the State Agencies for distribution and the amount of foodgrains distributed to the cardholders.

69. But, this transition from the manual process of distribution of goods to use of E-PoS Machine was not smooth and had certain hurdles. Earlier, in the year 2014-15, an assessment of State Government regarding urban and rural eligible cardholders was around 15 crores but, feeding failed and therefore, fresh exercise was undertaken pursuant to the enforcement of Control Order of 2016 by the State in the year 2017.

70. The State chose four System Integrator who were required to provide E-PoS Machine to the dealers and a contract was entered with the System Operator for feeding of Aadhaar details in E-PoS Machine. State had required the process to be completed within three months. But, as there was some problems, time was extended.

71. It was during the process of feeding which started throughout the State, that large scale syphoning off foodgrain meant for the cardholders happened.

72. As pointed out in Power Point Presentation of feeding and seeding by both the sides, it is clear that the first step is of entering the details of Aadhaar of a beneficiary into the E-PoS Machine, where neither authentication is done nor any OTP is generated and this is called ''feeding'. According to the State, this was dynamic mode, wherein system operator could enter the detail and edit the same number of times till it was finally locked during the evening hours.

73. It is admitted to both the parties that only once in the evening the data, which was feeded during the day time, was locked and then it became irreversible and could not be changed because of its authentication by the Competent Authority i.e. UIDAI. This process is seeding of the Aadhaar details.

74. E-PoS Machine is undoubtedly with the custody of the dealer and it was during the day time that the feeding was done in the E-PoS Machine, as it was in dynamic mode. During the feeding process, the data could be changed/altered number of times till it was finally locked after verification.

75. The catch lies here. Taking advantage of the fact that entire Aadhaar details of all the ration cardholders attached to a particular dealer/shop was not feeded and seeded and the process was continuing, while the distribution of essential commodities continued, interpolation was made by the dealer in the details and using one or two Aadhaar numbers, ration from dormant cardholders was withdrawn.

76. The most interesting part is that this exercise was done only in the month of July, 2018 in most part of the State. The argument made at the behest of petitioner's counsel that it was not possible without connivance of District Supply Officer and official of NIC does not impress the Court as the E-PoS Machine was in the custody of dealer and during day time, the data can be feeded and edited number of times till it was finally locked in the evening.

77. From perusal of transactions sheet brought on record by the State through personal affidavit of Principal Secretary, it reflects that most of the transactions had taken place between an interval of 2-3 minutes. Looking from the practical aspect, it is not possible for any dealer to carry out the transaction and deliver the goods after completing the formality within two minutes.

78. The argument regarding role of officials of Supply Office and NIC cannot be considered on two counts, firstly, neither any specific allegation has been made in the writ petition against any of such officials nor they have been impleaded as a party. Moreover, in the representation of petitioner as well as during oral arguments, such allegations have been made. Secondly, the Court finds that there was no requirement of use of login ID or password as the Machine was open for feeding during the day-time and the dealer, with the help of unknown operator, as alleged in the show cause notice, had performed number of transactions as the details was finally locked in the evening. All the transactions in the leading case is of the day time.

79. Reliance placed upon decision in case of Ravi Yashwant Bhoir (supra) is not applicable as petitioners have failed to make out any case of mala fides either in the writ petition or through argument. The Apex Court in Ratnagiri Gas and Power Private Limited (supra) while distinguishing between malice in fact and malice in law had taken note of the said judgment.

80. Coming to the argument advanced by Sri Trivedi that the concept of feeding and seeding required authentication from the Competent Authority, thus, the dealer was incapacitated to perform any such act and make any interpolation at its end was not possible, cannot be accepted due to the fact that feeding of Aadhaar data was being carried out for the first time in the E-PoS Machine and it was in a transition phase.

81. The feeding part became irreversible only after the authentication by the Competent Authority, which was done only once during the day and that too the evening, leaving it open during the day time for altering and editing data number of times. Thus, the concept of seeding has two facets, one when the Machine is on dynamic mode wherein feeding is done and data can be altered number of times till it is finally locked and becomes irreversible. Secondly, when the data fed is authenticated by Competent Authority and becomes irreversible, which is called static mode.

82. In K.S. Puttaswamy (supra), Power Point Presentation was given in Supreme Court in regard to process of feeding and seeding of Aadhaar details and authentication by the Competent Authority. The Apex Court had found that the system was foolproof and once authentication was done by the Competent Authority, no change can be made in the details feeded in the Machine.

83. Similarly, while the details of Aadhaar was being fed in the E-PoS Machine, during feeding, the details could be changed subject to verification and authentication by the Authority. Once, it was done, the change became irreversible.

84. The dealers, taking advantage of this hybrid mode, had resorted to such illegal activities and syphoned off ration of dormant cardholders. They were aware that no enquiry would be conducted as the cards were dormant and no one would come up to make any complaint. But, on verification of transactions it was found that using details of few Aadhaar numbers, ration of thousands of cardholders was withdrawn throughout the State of U.P.

85. Argument, that information given by District Supply Officer clearly demonstrate that dealer can neither change the software in E-PoS Machine, nor prepares the Password/login ID nor he can feed the Aadhaar details, is of no help to the petitioners, as it was a general information which was sought in the year 2019 after the entire work of feeding and seeding was over.

86. No information was sought in regard to the fact that, at the first instance, when feeding began, whether without data being authenticated, the same can be changed or altered? It is an accepted fact that once the process of seeding is over, no one can change the same and transaction will be completed only after authentication of biometrics of a beneficiary.

87. An argument has been raised on behalf of the petitioner that it was not possible for dealers situated in 43 districts of State to come up with one idea and performs such illegal transaction in one month. This Court finds that as the entire feeding and seeding process was not completed and was in a transition mode, the dealers had an opportunity before the data was locked permanently and was in a dynamic mode, they withdrew rations of the dormant cardholders.

88. "Process of Seeding" includes both feeding and seeding of Aadhaar details of a beneficiary in E-PoS Machine. As discussed earlier, the process is divided into two parts, firstly, by entering the data where it is in dynamic mode and, secondly, upon its verification, it gets locked and is in static mode. Petitioner's argument is only to the extent of static mode where the data become irreversible and gets locked, and there is no role of the dealer therein to get it altered or changed.

89. This fact is accepted to the State that once feeding is over and the data gets locked, it becomes irreversible and beyond the approach of the dealer to alter it. But in the case in hand, the transaction took place while the process was in dynmic mode and not in static mode. The word "Process of Seeding" incaptulates both feeding and seeding and it cannot be read in isolation.

90. Thus, during the transition period, first, the data was feeded and after authentication, it was seeded and then only became irreversible.

91. Alternate argument raised in regard to technical glitch or malfunctioning of software in the month of July, 2018 has no legs to stand, as petitioners have tried to raise contradictory plea and argument. When the petitioners failed to nail the officials of the department, an attempt has been made to portray that technical glitch occurred in the working of software. This Court finds that most of the transactions were carried out by the dealers of dormant cardholders. Moreover, the Card ID are different but only few of the Aadhaar numbers have been given for all the Card IDs, this cannot be a technical glitch but a deliberate attempt.

92. Further, the transaction sheet, reveals that in the 4th Column, Ration Card ID of all the 311 cardholders are different but 6th Column mentions only 2 Aadhaar numbers. This cannot be a technical glitch, and the State has come out with a case that out of 311 Cardholders, 236 Cards are dormant and rest of the cardholders are not identifiable.

93. In fact, through Section 12 of Act of 2013, the Government had mandated for use of technology through computerization and leveraging Aadhaar so that actual beneficiary may receive foodgrains and to eliminate all those cardholders from the system, who were not entitled under the Act to get the foodgrains.

94. Dealers are well aware that once the entire data of ration cardholders are fed in E-PoS Machine and distribution takes place through use of biometric by authentication, pilferage in the system would be reduced to negligible. This was a last ditch attempt to squeeze out the maximum from the kitty of the State misusing the technology.

95. As discussed earlier, technology advancement is beneficial to the mankind, but its misuse can be detrimental to the society at large when used with wrong intention.

96. As it is clear that on 17.10.2017, the State Government had apprised the Commissioner, Food and Civil Supplies, U.P. that the work of Aadhaar seeding was to be carried out in the entire State, for which E-tendering was required, pursuant to which the Commissioner, Food and Civil Supplies on 18.10.2017 required all the District Magistrates of the State for seeding of Aadhaar Card in the E-PoS Machine.

97. In the letter addressed to the Collectors, it was made clear that the feeding work was to be completed within three months. Thus, it can be safely said that the State as well as the different authorities had been using the word seeding of Aadhaar Card in the E-PoS Machine, though the process of seeding is bifurcated into two parts, namely, ''feeding' and ''seeding'.

98. In the present case, on 10.01.2018, the District Supply Officer, Meerut had issued a letter to M/s Rising Star IT Solution, the System Integrator, requiring him to complete the work of feeding within three months. Thus, the argument that the order of Collector as well as process initiated by State Government in 2017 using the terminology ''seeding' was a process irreversible, is a fallacy.

99. Seeding is the final and ultimate part of the process wherein Aadhaar data is entered in the E-PoS Machine and after verification from the Competent Authority, the data gets finally locked and is thus called ''seeded'.

100. It appears that the petitioners have fallen in trap of the word ''seeded' and its use at different places has led them to believe that the process initiated by the Government became irreversible on mere feeding of data. In fact, the details of Aadhaar feeded during the day time could be easily changed and altered number of times unless and until it was authenticated by the Competent Authority wherein the process became irreversible and the data stood seeded.

101. The argument raised by learned Additional Advocate General as to the basic order having not been challenged by the petitioner, this Court finds that though there is a lacuna that only the consequential order has been challenged by the petitioner but the Court, at this stage, declines to accept this plea as the matter is being heard and decided after exchange of pleadings by both the sides.

102. The entire controversy in all the connected bunch matters raises similar question that it was not in the domain of dealers, nor they could edit or change the data which had seeded by the department. The entire narration on their behest was to the extent, including information received under Right to Information Act that dealer cannot make any change in the seeded data and the LoginID/Password was not in their custody.

103. After analysis, the Court finds that entire controversy is being dragged on in the garb of the word ''seeded'. The terminology is vast and includes both ''feeding' and ''seeding'. One should be remindful of the fact that prior to the use of E-PoS Machine, an exercise being undertaken by the State Authorities for seeding of the Aadhaar details of a beneficiary, the PDS System was working manually.

104. The entire effort of both Central and State Governments was to reduce pilferage of essential commodities meant for eligible cardholders by the use of electronic device with biometric authentication of beneficiary.

105. Petitioners have not denied the ration being given to the dormant cardholders in their reply nor in the writ petition. Their entire effort rest on the fact that no official of the department had been made liable and further no inquiry has been conducted, nor any complainant has come forward and made complaint before the State is of no consequence as neither any official of the department has been made party in the writ petition nor any allegation has been made against them. Moreover, the case of the State is specific to the effect that ration was withdrawn of the dormant cardholders. Thus, no question arises for anyone coming forward and making complaint.

106. In Ekta Shakti Foundation (supra), Apex Court had clearly laid down the concept of equality, as envisaged under Article 14 of the Constitution, which is a positive concept and cannot be enforced in a negative manner. The petitioners were under the obligation to prove their case, rather shifting the burden and blame upon the State.

107. Considering the facts and circumstances of the case, this Court finds that no interference is required in the order dated 25.11.2019 passed by District Magistrate.

108. In the result, the writ petition fails and is hereby dismissed.

109. Similarly, in all the other connected matters, this Court declines to interfere in the order of cancellation passed by District Supply Officer and the same having been affirmed by the District Magistrate, cancelling the licence of the fair price shops in question.

110. All the writ petitions are hereby dismissed."

9. In the present case also E-PoS Machine was misused and on the basis of single Aadhar card foodgrains were issued in the name of as many as 150 cardholders, which was scrutinized by NIC also. The report of NIC would not be doubted as well as petitioner has not come up with any material to contradict report. Therefore, facts of present case are squarely covered by judgment passed by this Court in Awadhesh Kumar (supra) and I do not find any illegality or irregularity in impugned order warranting interference in writ jurisdiction.

10. Writ petition lacks merit. Dismissed accordingly.

11. Interim order, if any, stands vacated.

Order Date :-15.03.2023

AK