1. Heard Mr. Rajeeva Sharma, Senior counsel assisted by Ms. Rita Kumari, counsel appearing for the petitioner.
2. Heard Mr. Atanu Banerjee, counsel appearing for the respondents.
3. This writ petition has been filed for the following reliefs:
a) “For quashing of the order dated 24.5.2013 passed in RMP No. 07/2012-13 by learned Deputy Commissioner, Dumka (Respondent no. 2),
whereby he has rejected the application of the petitioner upholding the cancellation of the petitoner’s PDS licence, as being the same wholly
illegal, arbitrary, mala fide and without jurisdiction and violative of Articles 14, 19 and 21 of the Constitution of India.
b) During the pendency of this writ application, the petitioner may be allowed to continue to run his PDS shop as the same is her means and source of
livelihood.â€
4. Senior counsel for the petitioner submits that earlier the petitioner had filed a writ petition being W.P. (C) No. 4814 of 2011 challenging the order
passed by the licensing authority as well as the appellate authority and had brought on record that the criminal case which was instituted against the
petitioner was ultimately dropped and under such circumstances, this Hon’ble Court vide order dated 09.10.2012 passed in W.P.(C) No. 4814 of
2011 directed that the petitioner should have approached the licensing authority/appellate authority on the basis of said order regarding discharge from
the criminal liability. It was also found that the order passed in connection with the criminal liability was not brought to the notice of the licensing or
appellate authority, there was no occasion for them to consider the same and pass an order. A liberty was granted to the petitioner vide order dated
09.10.2012 passed in W.P.(C) No. 4814 of 2011 to approach the appropriate authority and file representation in terms of the police report leading to
the final form and the concerned authority was directed to pass a reasoned order in accordance with law within two months.
5. Pursuant to the aforesaid order dated 09.10.2012 passed in W.P.(C) No. 4814 of 2011 the petitioner moved the appellate authority and the case
was numbered as R.M.P. Case No. 07 of 2012-13, wherein the appellate authority considered the dropping of criminal case and held that the matters
relating to criminal case and the cancellation of license are totally two different things and accordingly, rejected the representation filed by the
petitioner pursuant to the order dated 09.10.2012 passed in W.P.(C) No. 4814 of 2011.
6. Senior counsel for the petitioner has also argued the case on the merits of the matter by saying that no case of black marketing is made out against
the petitioner and accordingly, the license has been wrongly cancelled. Senior counsel for the petitioner has also referred to a judgment passed by this
Hon’ble Court reported in 2013 (1) East Cr. C. 11 (Jhr.) and has submitted that after coming into force of Public Distribution System (Control)
Order, 2001 the Bihar Trade Articles (Licences Unification) Order, 1984 was held to have been virtually repealed by virtue of the provision as
contained in Clause- 14 of
Public Distribution System (Control) Order, 2001. He has also referred to paragraph nos. 9 and 10 of the said judgment wherein it has been held that
the provision of unification order after commencement of Public Distribution System (Control) Order, 2001 would not be workable so far as it relates
to matter relating to distribution of Public Distribution System commodities. By relying upon this judgment the Senior counsel for the petitioner submits
that the entire proceeding of initiation of proceeding for cancellation of license as well as the cancellation of license itself and the appellate order are
wholly without jurisdiction in view of the fact that State Government have not issued any order under Section 3 of Public Distribution System (Control)
Order, 2001.
7. Counsel for the respondents, on the other hand submits that cancellation of license of the petitioner was done by the competent authority and the
appellate authority had also confirmed the order of the licensing authority and thereafter, the petitioner had filed the writ petition being W.P.(C) No.
4814 of 2011 wherein the petitioner was granted liberty to approach the appropriate authority and file representation only on the limited point that the
criminal case was dropped against the petitioner.
8. Counsel for the respondents further submits that the order of cancellation of license as well as the order of appellate authority was not set-aside by
this Court and accordingly, it is not open to the petitioner to contend that the entire proceeding for cancellation of license passed by the licensing
authority as well as the appellate authority are wholly without jurisdiction.
9. Counsel for the respondents also submits that so far as the judgment passed by this Hon’ble Court which has been relied upon by the petitioner
and is reported in 2013 (1) East Cr. C. 11 (Jhr.) is concerned, the same was passed in relation to quashing of the criminal case wherein the search and
seizure was done by the Block Development Officer and under the provisions of Public Distribution System (Control) Order, 2001 the power of
search and seizure is conferred upon the authority authorized by the State Government and in absence of any such authorization, the entire criminal
case was quashed.
10. He further submits that there is no scope for entering into the merits of the case as the impugned order which has been passed by the Deputy
Commissioner has been passed pursuant to the order of this Court and the issue before the Deputy Commissioner was confined to the point that the
criminal case was dropped against the petitioner.
11. After hearing the counsel for the parties and after considering the materials on record, this Court is not inclined to grant any relief to the writ
petitioner on account of the following facts and reasons:
a) From the perusal of the earlier order dated 09.10.2012 passed in W.P.(C) No. 4814 of 2011 this Court finds that the order passed by the licensing
authority as well as the order passed by the appellate authority was challenged by the writ petitioner solely on the ground that the criminal case has
been dropped against the petitioner. This Court did not set-aside the order of the licensing authority as well as the appellate authority, but gave the
liberty to the petitioner to approach the concerned authority by filing a representation bring to the notice of the said authority the police report leading
to the final form and the appropriate authority was directed to pass appropriate order in accordance with law. The appropriate authority i.e. the
Deputy Commissioner passed the impugned order pursuant to the representation filed by the petitioner and held that the scope of the criminal case is
different from the scope of the allegations which have been levelled against the petitioner and submission of final form in the criminal case has no
bearing in the matter.
b) Further this Court finds that repeated opportunity has been granted to the petitioner to bring on record the various documents including the show-
cause issued to the petitioner by the licensing authority for cancellation of license as well as the show-cause reply filed by the petitioner before the
licensing authority who had issued show-cause for cancellation of license, but inspite of such orders, the same has not been brought on record. In
absence of the necessary documents, this Court is otherwise also not in a position to appreciate the case of the petitioner on the merits of the matter.
c) So far as the impugned order dated 24.05.2013 is concerned, this Court does not find any illegality or perversity in the said order as dropping of the
criminal case has been rightly held to have no bearing in connection with the matter of cancellation of license of the petitioner on the basis of the
allegations levelled against the petitioner pursuant to the show-cause issued to the petitioner. From the perusal of the final form which was submitted
by the police it appears that one of the reasons for submission of final form was that the persons who were present at the place of occurrence did not
give any statement to the police during the course of investigation. In such circumstances in the proceedings for cancellation of licence , the show-
cause notice as well as the reply filed by the petitioner are the basic documents where were required to be brought on record by the petitioner .
d) So far as point of jurisdiction and the reliance of the petitioner in the judgment reported in 2013 (1) East Cr. C.
11 (Jhr.) is concerned, paragraph 14 of the said order is quoted herein below:
“In absence of any denial that the Block Supply Officer has never been authorized by the State Government, plea of the petitioner has to be
accepted that Block Supply Officer had no such authority to make search and seizure and thereby any search and seizure made by the Block Supply
Officer would be quite illegal. Furthermore, the case lodged on the basis of such search and seizure certainly gets vitiated.â€
The said case was relating to the quashing of the criminal case and the entire search and seizure was under challenge for want of authority of Block
Development Officer who had seized the articles. The power to search and seizure has been conferred only upon an authority authorized by the state
government to inspect or summon the records and also enter the fair price shop also for the purposes of inspection, search and seizure and the
provisions of section 100 of Cr. P.C is to apply to such search and seizure.
The ratio of the said judgment is that any criminal case arising out of such search and seizure conducted by an authority not empowered as per clause
10 of the control order, 2001 is vitiated.
e) This court is of the considered view that the said judgment has no applicability in the matter relating to the cancellation of license on the allegation
of diversion or black marketing or mishandling of food grains are concerned particularly in connection with the licence issued to the petitioner as back
as in the year 1992 vide licence no. 18 of 1992. The licence number is apparent from the order of cancellation of licence itself as mentioned in the
order of its cancellation where the licence number is mentioned as 18/1992.
f) Clause 14 of the Control Order, 2001 reads as under:-
 “14. Provisions of the Order to prevail over previous Orders of State Governments.- The provisions of this Order shall have effect
notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the
commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement:â€
g) From perusal of the aforesaid clause 14 of the control order 2001 it is apparent that any thing which has been done prior to the commencement of
2001 order is not affected by virtue of Control Order, 2001. In the instant case the license to the petitioner was granted as back as in the year 1992
and accordingly the petitioner is bound by the terms and conditions of license and it is not open to him to say that all the controls and regulations
ceases to exist by virtue of Control Order, 2001 and no action can be taken against him for cancellation of licence even in the matter of diversion of
food grains, or black marketing of food grains.
h) In the Annexe to the Public Distribution System (Control) Order, 2001 it appears that the procedure for distribution of food grains by Food
Corporation of India to the State Government as well as the entire distribution system is governed by Clause-6 of the said Public Distribution System
(Control) Order, 2001. Clause-5 of Annexe to the Public Distribution System (Control) Order, 2001 provides that the State Government is to issue an
order under Section 3 of the Essential Commodities Act for regulating the sale and distribution of essential commodities and the responsibilities and
duties of the fair price shop owners includes a list of items as mentioned in the said paragraph. From the perusal of the aforesaid provision it appears
that the State Government was required to issue an order under Section 3 of the Essential Commodities Act for the purposes of regulating the sale and
distribution of essential commodities. This does not mean that there was a state of vacuum after coming into force of Public Distribution System
(Control) Order, 2001 till the issuance of order under Section 3 of the Essential Commodities Act in terms of Clause 5 of annexes to the Public
Distribution System (Control) Order, 2001 which was issued only in the year, 2017 and the authorities of the State had no control over the persons
who were already holding licence under public distribution system much prior to 2001.
i) It has not been disputed by the petitioner that the petitioner had been receiving the food grains for the purposes of distribution to the public by virtue
of the licence issued to the petitioner and accordingly, it is not open to the petitioner to say that the authorities had no jurisdiction to pass any order
including cancellation of licence in case the petitioner was found engaged in illegal activities i.e. the black marketing or diversion of food grains.
12. In this background, the ratio laid down in the aforesaid case reported in 2013 (1) East Cr. C. 11 (Jhr.) has no applicability to the facts and
circumstances of this case particularly in view of the fact that the entire licensing and public distribution system was being taken up and followed by
not only the State Government but also the petitioner and accordingly, it is not open to the petitioner to say that inspite of receipt of food grains under
the public distribution system, the authorities had no jurisdiction to have any check on them and had no jurisdiction to take action in case the petitioner
was found in black marketing or diverting the food grains supplied to her by the State.
13. In view of the aforesaid facts and circumstances, I find no merit in this writ petition and accordingly, it is dismissed.
