Nikunj Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 1087 MP

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         The High Court Of Madhya Pradesh
                          Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC No. 2268 of 2022

Nikunj Sharma Vs. State of MP

=========================== Shri Sanjay Kumar Bahirani & Shri Anand Purohit, learned counsel for the petitioner.

Shri Avneesh Singh, learned counsel for the respondent/ State.

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Reserved on                                   14/01/2022
Whether approved for reporting               ......../.......
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                                  Order
                           (Passed on 24/01/2022)

By invoking the inherent power of this Court, the instant petition

has been filed by petitioner seeking quashment of FIR bearing Crime

No.873 of 2021 registered at Police Station Kotwali, Ashok Nagar for

offence under Section 3/7 of Essential Commodities Act, 1955 ( in short ''

the EC Act'') and other subsequent criminal proceedings initiated

therefrom.

(2) Briefly stated, facts of the case are that SDO (Revenue), Division

Ashok Nagar made a written complaint at Police Station to the effect that

as per the guidelines of MP Government, it is mandatory for distribution of

hundred percent ration by fair-price shops to the beneficiaries/customers at

large. The petitioner is running a fair-price shop at Ratikheda and it is

alleged that the petitioner is not distributing free ration under the PMGY

Scheme. Therefore, a joint enquiry by the Junior Supply Officer (Food),

Ashok Nagar and Mungaoli was conducted wherein it was found that 336

qntls. 66 kilograms of wheat of cost Rs.10,09,980/- and 83 qntls. 97

kilograms of rice of cost of Rs.3,35,880/- were not actually distributed by

the petitioner and a false entry has been made by the petitioner in POA

machine in regard to distribution of free ration/food-grains. Therefore, the

Manager of Fair-price Shop (Society) petitioner herein has committed a

black-marketing and misappropriated a sum of Rs.13,45,860/-, as a whole.

It is further alleged that as per the guidelines/scheme of MP Government,

free ration was not distributed properly to the beneficiaries/customers and

prima facie, a theft of food-grains has been committed. On the basis of the

said complaint, Crime No.873 of 2021 under Section 3/7 of the EC Act has

been registered against petitioner at Police Station concerned.

(3) According to the learned counsel for the petitioner, the petitioner is

the Society Manager and the main function of Society is to distribute loan,

fertilizers and seeds to the farmers/agriculturists without any interest and

recovery of loan amount as per the Government guidelines/schemes/

instructions. The beneficiaries/customers had made an application before

the Collector to get free ration for a period of four months and after

enquiring into the matter, Junior Supply Officer (Food), Ashok Nagar and

Mungaoli submitted a report stating that free ration is not distributing

regularly to beneficiaries/ customers as per the rules since last four months

and on the basis of wrong report submitted by Junior Supply Officer

(Food), Ashok Nagar and Mungaoli and on the basis of report submitted

before SDO along with documents, the Collector, Ashok Nagar directed

the authorities to take take necessary action as per rules and register a

criminal case against the petitioner and thereafter recovery be made from

the petitioner. It is submitted that ration can only be distributed by POA

Machine in which it is not possible to be distributed without obtaining

finger/thump impression of the beneficiaries or customers and without

thumb impression of beneficiaries or customers, it is not possible to make

any entry in POA Machine. It is submitted that the enquiry report

submitted by the Junior Supply Officer (Food), Ashok Nagar and

Mungaoli in regard to distribution of free ration/foodgrains done by way

of POA Machine is fake as per the record and no discrepancy as well as no

economic loss has been caused by the petitioner. In this regard, petitioner

had submitted a representation before the Superintendent of Police, Ashok

Nagar mentioning the fact that distribution of ration/ food-grains has been

done as per the bio-metric POA Machine and all the beneficiaries or the

customers have been received their ration after putting their thumb

impression and there is no intention on the part of petitioner to tamper in

the process of POA machine. Therefore, there is no irregularity or illegality

committed either by the seller of fair-price shop or the petitioner, who is

Manager of the Society, for violation of the guidelines of PDS (Control)

Order and free ration has been distributed by the seller of the fair-price

shop to the beneficiaries or customers free of cost and as per the rules after

entering in POA Machine. Enquiry report has been produced without any

basis to forcibly implicate the Manager- petitioner as well as seller of the

fair-price shop. In such a situation, the Manager of Society, petitioner as

well as the seller of fair-price shop cannot be held liable to be prosecuted

in connection with aforesaid Crime. Without conducting any preliminary

or detailed enquiry, FIR has been registered against petitioner, which is a

gross violation of law. Therefore, registration of FIR on the basis of

enquiry report is perverse and contrary. As no case is made out against

petitioner, hence, FIR as well as other consequential criminal proceedings

initiated against him are unsustainable in law and same deserves to be

quashed. It is further submitted that a Closure Report has been filed and as

per the Closure Report, no case is made out against petitioner. In support

of his contention, petitioner has relied upon the judgment passed by

Hon'ble Supreme Court in the case of State of Harayan and Ors. Vs.

Bhajan Lal & Others, reported in AIR 1992 SC 604.

(4) Learned Counsel appearing for the State, vehemently opposed

petition and submitted that offence has been registered under Section 3/7

of the EC Act on the basis of written complaint submitted by the Junior

Supply Officer (Food) before the SDO (Revenue), Division Ashok Nagar

to the effect that misappropriation has been done by the petitioner and as

per the guidelines of State Government, petitioner has to distribute

hundred percent free ration/food-grains to the beneficiaries/ customers and

in the enquiry report, it was found that as per the record maintained by

petitioner, he has done black-marketing by misappropriating an amount of

Rs.13,45,860/-. Considering the aforesaid enquiry report, FIR has been

lodged against him. Therefore, no ground is made out for quashment of

FIR as other subsequent criminal proceedings initiated against him.

(5) Heard learned counsel for the parties and perused the documents

available on record.

(6) In the matter of Abhinandan Jha & Ors vs Dinesh Mishra, reported

in AIR 1968 117, the Hon'ble Apex Court has held that the investigation

under the Code of Criminal Procedure takes in several aspect and stages

ending ultimately with the formation of an opinion given by police as to

whether on the material covered and collected, a case is made out to place the

accused before Magistrate for trial and the submission of either a charge sheet

or a final report/ closure report is dependent on the nature of the opinion so

formed. The formation of the said opinion by the police is the final step in the

investigation and that final step is to be taken only by the police and by no

other authority.

(7) From perusal of record as well as Closure Report filed by police, it

is clear that the complainant has produced contrary evidence due to the

enmity. As per the POA machine, proceedings and enquiry initiated against

petitioner are liable to be dropped on the basis of enquiry conducted by the

Junior Supply Officer (Food), Ashok Nagar and Mungaoli, therefore, the

foundation of FIR is automatically put to an end and it shall be just and

proper to close proceedings initiated against petitioner at this stage. On

the basis of statements of the witnesses, seized notarized affidavit and the

supervision of the Food Department, Office of Collector, Ashok Nagar and

the report submitted at the time of investigation, till now it appears that no

offence of black-marketing against petitioner is found to be committed by

the petitioner and the foundation of FIR in question is automatically closed

on the basis of opinion and direction received from the Legal Officer and

the proceedings for FR is being proposed to the concerning Senior

Officers. Since reliable evidence in regard to commission of offence by the

petitioner under Section 3/7 of EC Act could not be produced by the

witnesses, therefore, from perusal of the record, it is crystal clear that

distribution of free ration/food-grains has been made by the petitioner as

per POA Machine and no allegation of tampering with the POA Machine is

made out against him while distributing free ration/food-grains to the

customers/beneficiaries and same has been distributed to beneficiaries or

customers as per the directions/ guidelines/ scheme of the State

Government. While distributing free ration/ food-grains to beneficiaries or

customers, no tampering with the POA Machine has been found to be

proved by the Investigating Officer concerned, while submitting the

Closure Report. Since after thumb impression from beneficiaries or

customers, the information regarding distribution of food-grains/ free

ration is automatically generated by the system, therefore, no case of

misappropriation is made out against petitioner whereby the petitioner

should be guilty of offence under Section 3/7 of EC Act. Despite this,

enquiry report has been produced by the authorities concerned without any

basis to forcibly implicate the petitioner as well as seller of fair-price shop

in the alleged crime.

(8) As a result, this Court thinks it proper to quash impugned FIR

bearing Crime No.873/2021 registered against petitioner at Police Station

Kotwali, Ashok Nagar for offence under Section 3/7 of EC Act and other

subsequent criminal proceedings initiated therefrom.

(9) Petition succeeds and is hereby Allowed.

(10) A copy of this order be sent to the concerned Police Station as well

as Court concerned for information and compliance.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.01.25 10:42:03 +05'30'