Delhi High Court
Shree Ram Store vs The Commissioner, Food & ... on 13 May, 2009
Author: Sanjiv Khanna
14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3918/2007
SHREE RAM STORE ..... Petitioner
Through:
versus
THE COMMISSIONER FOOD &
SUPPLIES DELHI & ANR. ..... Respondents
Through: Mr. J.K. Chaudhary for Mr. Aditya
Madan, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 13.05.2009
1. The petitioner Mr. Om Prakash has impugned the orders dated
27.02.2007 and 14.05.2007 passed by the Commissioner, Food and
Civil Supplies, Govt. of NCT of Delhi; dismissing his appeal and the
review petition and confirming the order dated 12.12.2006 passed by
Assistant Commissioner cancelling the fair price shop license granted
to the petitioner and forfeiting the entire security deposit.
2. On 16.12.2006 the petitioner as a fair price shop licensee was
issued 188 quintals of wheat for distribution amongst the
cardholders. On 17.12.2006 (one day after the said wheat was
issued), search was conducted in the premises of the petitioner by
officials of the Food & Supply Department and the entire 188 quintals
of wheat was found to be missing. Certain other irregularities were
noticed and pursuant thereto Show Cause Notice dated 28.12.2005
WPC NO.3918/2007 Page 1
was issued alleging the following irregularities:
"(a) Stock Board was not filled.
(b) Complaint book was not available
(c) Net variation - 15 Kg Wheat (short) was noticed in AAY
category
(d) Diversion of 188 Qtls APL Wheat in open market."
3. The petitioner submitted his reply and was also personally
heard by Assistant Commissioner (NW). The case against the
petitioner was that the entire 188 quintals of wheat was sold and
disposed of to 451 cardholders after it was received on 16.12.2005
till the search was conducted on 17.12.2005. Upon hearing the
Assistant Commissioner (NW) held that 188 quintals of wheat cannot
be dispersed to 451 cardholders within 7 hours. The order was
confirmed in appeal vide order dated 27.02.2007 where again the
petitioner was given personal hearing. The Secretary-cum-
Commissioner while dismissing the appeal of the petitioner has
observed as under:
" I have carefully gone through the records of the case as
well as appeal memorandum under reference. I have
also heard the appellant in person. The appellant has
failed to establish convincingly, either before the licencing
authority or during the proceeding in this Court, that he
had supplied 188 quintals of APL wheat to bonafied
cardholders. In a common sense also it is very difficult to
believe that 188 quintals of wheat can be distributed to
cardholders within such a short period, particularly
keeping the fact in mind that the wheat under reference
was supposed to be distributed to the cardholders of APL
category, who generally do not show much interest in
SFAs distributed through the PDS."
4. Review petition was also dismissed vide order dated
WPC NO.3918/2007 Page 2
14.05.2000.
5. Learned counsel for the petitioner was given a liberty to file
affidavits of the cardholders vide order dated 11.02.2009. Two
affidavits have been filed out of the 451 cardholders. The petitioner
claims that he was able to obtain affidavit of 66 cardholders and
these were filed with respondent officials. It is further alleged that
the impugned order and the appellate orders are based on
presumptions, which have no foundation that the petitioner could not
have sold 188 quintals of wheat on 16.12.2005 and 17.12.2005. It is
further alleged that the petitioner had kept the shop opened for 14
hours on the said dates and therefore it is possible to sell the entire
188 quintals of wheat.
6. 188 quintals of wheat is a substantial quantity. Admittedly the
said quantity was found to be missing from the shop of the petitioner
at the time of search/inspection on 17.12.2005. The presumption in
these circumstances is that 188 quintals of wheat or substantial part
thereof has been sold in the open market. The respondents in their
counter affidavit have pointed out that even if it is accepted that the
petitioner had kept his shop open from 3.25 PM to 10 PM on
16.12.2005 and from 8.00 PM to 3.00 PM on 17.12.2005, he could
not have distributed 188 quintals of wheat to 451 cardholders.
Before wheat was given to a cardholder the entries in the card had to
be verified to find out the quantity of wheat which was to be sold.
This obviously takes time. The respondents in this regard in the
counter affidavit have stated as under:
"Now considering that theoretically a single customer
takes a minimum of 5 minutes (practically impossible in
rush of people), in being finally disposed off, after making
WPC NO.3918/2007 Page 3
all the entries in registers, collecting money then
weighing the ration and handing it over would take:
451 x 5 = 2255 minutes, whereas the petitioner claims
that in flat 940 minutes he distributed the 188 quintals of
Wheat to 451 consumers and that too in a heavy rush as
per his own claim. Unbelievable and impossible by any
means, in the current set up.
6. That it is submitted that the petitioner has challenged
the suspension orders saying that the same was based on
"presumption and not actual fact", here I would like to
submit that "Probability" is a major mathematical factor,
to reckon with. The duration of 14 hours or so is such a
short span of time that not even a benefit of doubt could
be given to the FPS holder."
7. It may be noted that the official timings of fair price shop
outlets are 9:00 a.m. to 1:00 p.m. and then 3:00 p.m. to 7:00 p.m.
The statement of the petitioner that the shop was open for 14 hours
on 16.12.2005 and 17.12.2005 does not appear to be correct. It fails
to also take into account the arrival time and time when
search/inspection was carried out on 17.12.2006. The view and
decisions of the respondent authorities are backed by the doctrine of
preponderance of possibility. The belief and the reasoning behind the
conclusion is not perverse or a mere hunch. The fact that 188 quintal
of wheat was not in the shop is admitted. The finding that the said
quantity of wheat could not have been sold between 16th and
17.12.2005 is a presumption which a reasonable person would
entertain on the given material. There is no justification to set aside
WPC NO.3918/2007 Page 4
the said conclusion while exercising limited jurisdiction of judicial
review under Article 226 of the Constitution of India.
8. There is no merit in the present writ petition and I do not think
it is a fit case to interfere with the orders passed by the authorities is
a writ petition under Article 226 of the Constitution of India.
Dismissed.
SANJIV KHANNA, J.
MAY 13, 2009
Bsr/am/P
WPC NO.3918/2007 Page 5
