Udaiveer Singh vs State Of M.P.
2021 Latest Caselaw 3778 MP

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                   HIGH COURT OF MADHYA PRADESH
                              WP.No.4067/2012
             (Udaiveer Singh Vs. The State of M.P. & Others)

Gwalior, Dated : 31.07.2021

         Shri Harshad Bahirani, learned counsel for the petitioner.

         Shri Sanjay Kumar Sharma, learned Govt. Advocate for the

State.

         With the consent of the parties, the matter is heard finally

through Video Conferencing.

         The petition under Article 226/227 of the Constitution of India is

being filed by the petitioner seeking following reliefs:-

             "1.     That, the impugned order issued at Annexure
             P/1 dated 28.04.2012 with regard to initiating the
             prosecution proceeding under Section 3/7 of the
             E.C.Act may kindly be quashed in the interest of
             justice.
             2.      That, any other suitable relief which this
             Hon'ble court deems fit in the fact of the
             circumstances of the case. The cost of the present
             petition also may kindly be awarded."

         Challenge is made to the order dated 28.04.2012 passed by the

Collector-cum-District Supply Officer has issued a letter to the S.D.O.

for initiation of prosecution against the petitioner for breach of the

Madhya Pradesh Pubic Distribution System (Control) Order 2009

(hereinafter referred to as the PDS Control Order 2009) wherein, which

is punishable under Section 3/7 of the Essential Commodities Act.

         It is submitted that the order impugned is contrary to sub-clause
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             HIGH COURT OF MADHYA PRADESH
                          WP.No.4067/2012
          (Udaiveer Singh Vs. The State of M.P. & Others)

11 of the Clause 11 of the PDS Control Order 2009 wherein it has been

clearly provided that before institution of prosecution under

sub-clauses 9, 10 of Clause 11, a show cause notice shall be issued in

writing and opportunity of hearing will be given. It is submitted that

for invoking the power of the Madhya Pradesh Public Distribution

System (Control) Order 2009, lead society is established by the

Collector with the permission of the State Government. Thus, under

Clause 2 J of the PDS Control Order 2009 lead society means a

cooperative society registered under the Society Act 1960. In

pursuance to the aforesaid provision, the lead work was given to the

Sewa Sehkari Sanstha Mehgaon who is the bank cooperative body and

rune their work under the District Cooperative Bank Maryadit, Bhind.

The petitioner was carrying his job honestly and faithfully without any

hindrance but suddenly information was received with respect to any

inquiry being conducted by the Civil Supply Officer- Mr. R.S.Bhadoria

wherein it is alleged that the petitioner was indulged in black

marketing which is an offence under the Madhya Pradesh PDS Control

Order 2009 for punishable under Section 3 and 7 of the Essential

Commodities Act. The inquiry report was submitted before the

Collector and on the basis of the inquiry report, the Collector has

directed to the respondents no.3 and 4 for initiation of prosecution

under the Essential Commodities Act 1955. It is argued that no such

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

direction can directly be given by the Collector for initiation of

prosecution against the petitioner in view of Clause 11 of the PDS

Control Order 2009 wherein punishment and penalty has been

prescribed. Sub-clause 1 of the Clause 11 of the PDS Control Order

2009 provides for cancel or suspension of fair price shop of society and

forfeiture of deposit, security and recovery from the salesman. Clause

11 is relevant which provides that prior to directing for initiation of any

prosecution, a show cause notice is required to be issued to the

concerning and opportunity of hearing should have been provided but

without following the aforesaid procedure, the directions have directly

been issued by the authorities for initiation of prosecution against the

petitioner. In such circumstances, the order is bad in law. The order

passed by the Collector directing for initiation of prosecution against

the petitioner was quashed. The aforesaid order was subsequently

being considered in the case of Chandra Prakash Jain Vs. The State

of Madhya Pradesh & Others in W.P.No.10240/2020 vide order

dated 14.08.2020 and following the same analogy, the order impugned

was quashed and the petition was allowed. He has further relied upon

the judgments passed in the case of Dharmendra Mishra Vs. The

State of Madhya Pradesh in WP.No.21225/2019 vide order dated

16.10.2019 and in the case of Prakash Yadav Vs. The State of

Madhya Pradesh and Others W.P.No.15561/2020 vide order dated

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

20.10.2020 wherein following the similar analogy, the writ petition

was allowed. It is submitted that considering the judgments passed by

the Courts and the sub-clause 11 of the Cause 11 of the PDS Control

Order 2009, the interim relief was granted to the petitioner on

29.06.2012 whereby there was direction that no coercive action should

be taken against the petitioner. The aforesaid order is still in operation.

It is submitted that once the principles of natural justice are not being

followed by the authorities and no show cause notice was issued to

him. The order impugned is perse illegal and contrary to settled legal

proposition of law. Therefore, he has prayed for quashment of the

impugned order.

Per contra, learned counsel for the State has opposed the petition

stating that the petitioner was found indulged in black marketing. It is

contended that as per the Clause 12 of the PDS Control Order 2009

that any person/society aggrieved by the orders of the Shop Allotment

Officer may file an appeal against the same within 30 days to the

appellate authority. Therefore, the alternative remedy was available to

the petitioner in terms of Clause 12 of the PDS Control Order 2009.

Without availing the remedy, the petitioner can directly approach this

Court by filing a petition under Article 226 of the Constitution of India.

The same is not maintainable and deserved to be dismissed on the

ground of want of alternative remedy. It is further submitted that as per

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

the sub-clauses 8, 9, 10 of the Clause 11 of the PDS Control Order

2009, it is clearly mentioned that the opportunity of issuance of show

cause notice and opportunity of hearing is required to be given to the

petitioner when in event of lead society contravening of any provision

of the PDS Control Order 2009 action may be initiated with respect to

suspension of a person and as per the Clause 9, in the event of lead

society being unable to lift the food grains and transport the same or in

the event of delay and as per the Clause 10, in event of a responsible

officer of the authorized nominee of the State Government not being

able to store the essential commodities of the Public Distribution

System. The petitioner is not covered under the aforesaid clauses.

Annexure P/1 is clearly reflected that the complaint was made by

Sarpanch against the petitioner and after receiving the said complaint

and inquiry was conducted and during the inquiry, it was found that the

petitioner alongwith Ram Naresh Singh and Chandra Pal Singh has

committed black marketing of Kerosene Oil. Therefore, the direction

was issued to take action against the petitioner for black marketing of

Kerosene Oil. The Government has issued and has enacted the MP

Public Distribution System Control Order 2009 for securing of

availability of the essential commodities on control price on Ration

Card issued to the cardholder of M.P. and this order 2009 is made

effective to the poor person for the essential commodities on the fair

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

price shop. The petitioner has committed illegality and irregularities

and has tried to sell Kerosene Oil at the higher rate and has done the

black marketing which was found to be proved in the inquiry being

conducted against the petitioner. Therefore, it is not required that a

show cause notice be issued to the petitioner. In such circumstances,

the order directing the initiation of prosecution against the petitioner is

rightly being issued. The petition sans merits and has prayed for

dismissal of the same.

Heard the learned counsel for the parties and perused the record.

From the perusal of record, it is seen that vide Annexure P/1

direction has been issued by the Collector to the following effect which

is as under:-

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HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

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The aforesaid directions have been issued on the basis of inquiry

report submitted by the SDO to the Collector. Sub-clause 11 of the

Clause 11 of the PDS Control Order 2009 is required to be seen which

is as under:-

"The authorized nominee of the State government shall issue show cause notice in writing and given an opportunity to the officer concerned, before initiation of prosecution under sub-clauses (8), (9) and 10."

It is clearly mentioned in the Clause 11 that the aforesaid clause

prior to opportunity of hearing should have been provided and a show

cause notice should have been issued to the concerning prior to

directing for initiation of the prosecution. Admittedly, the aforesaid

provisions are not followed in the present case.

This Court in the case of W.P.No.19253/2015 has held as under:-

vide order dated 18.09.2015 has held as under :quote kar denat.

The aforesaid order was followed and subsequently judgments

passed in the case of Chandra Prakash Jain Vs. The State of

Madhya Pradesh & Others in W.P.No.10240/2020 vide order dated

14.08.2020 wherein the relevant is as under:-

"The prosecution is also a punishment and,

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

therefore, before inflicting punishment, the petitioner should have been heard.

If the order of learned Collector is examined in the juxtaposition of grounds raised in the representation dated 23.06.2020, it will be clear like noonday that the learned Collector has not taken pains to consider the question of providing opportunity of hearing to the petitioner before lodging an FIR."

In Dharmendra Mishra Vs. The State of Madhya Pradesh

passed in W.P.No.21225/2019 vide order dated 16.10.2019 wherein

the relevant is as under:-

"Considering the aforesaid facts and circumstances of the case, this petition is disposed of with a direction to the respondents No.2 and 5 that before registering an F.I.R. against the petitioners an opportunity of hearing be given to them.

The impugned order dated 20.09.2019 (Annexure P-3) is hereby quashed. However, the respondents are granted liberty to pass a fresh order after giving an opportunity of hearing to the petitioners. Accordingly, the petition is disposed of.''

Looking to the aforesaid settled legal proposition of law and as

well as the fact that the sub-clause 11 of the Clause 11 of the PDS

Control Order 2009 is required to be followed by the authorities

HIGH COURT OF MADHYA PRADESH WP.No.4067/2012 (Udaiveer Singh Vs. The State of M.P. & Others)

directing the authorities for initiation of prosecution or registration of

an F.I.R. directly without providing any opportunity of hearing is

clearly violative of sub-clause of the 11 of the PDS Control Order

2009. In such circumstances, the order impugned is unsustainable and

is hereby quashed.

However, the matter is relegated back to the authorities, if they

so desire, (as there is already interim order in operation since

29.06.2012) for fresh consideration after following the provisions of

the PDS Control Order 2009 and if the authorities are still willing to

initiate the prosecution against the petitioner, they are at liberty to do

so but after issuance of show cause notice to the petitioner. In case the

decision is taken to initiation of the proceedings against the petitioner

then the entire proceedings be completed within a period of six months

from the date of receipt of certified copy of this order.

With the aforesaid observations, the petition is allowed and is

disposed of.

E-copy of this order be provided to the petitioner and it is made

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                                                       (Vishal Mishra)
AK/-                                                       Judge
       ANAND KUMAR
       2021.08.06
       10:40:52 +05'30'