Dhruv Kumar Singh vs State of M.P.

M.C. Garg, J.—This revision petition has been filed by the petitioner u/s 397/401 of Cr.P.C. aggrieved by the order dated 19th January, 2011 framing charge against the petitioner u/s 3/7 of Essential Commodities Act, 1955 on account of violating the scheme framed by the State of Madhya Pradesh i.e. Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, 1991 and in particular clause 12 thereof which has been made punishable under clause 13 of the Scheme. It is a matter of record, that the petitioner who is a wholesale dealer of kerosene oil and is allotted a very heavy quota of kerosene oil which is required to be distributed in terms of the Scheme violated that scheme with immensity on many occasions by supplying the less/more quantity of kerosene oil to the authorized dealers and in this manner violated that scheme. Later on, an FIR was registered u/s 3/7 of the Essential Commodities Act on 28th June, 2009 vide Crime No. 396/2009.

It was argued by the petitioner that for violation of a scheme prepared by the State Government which has not been prepared u/s 3 and 5 of the Essential Commodities Act cannot be punished u/s 3/7 of the said Act. He has relied upon a judgment delivered by this Court in Arvind Kumar Vs. State of Madhya Pradesh, on the basis whereof the present petition was admitted.

I have perused the aforesaid judgment and the impugned order passed by the Court ''of Judicial Magistrate First Class, Burhar, District Shahdol dated 19th January, ''2011;

The judgment relied upon by the petitioner has been cited in that order.

In the aforesaid judgment, this Court has considered the validity of lodging a case against a person who violates the scheme i.e. Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, 1991 u/s 3/7 of the Essential Commodities Act, 1955 holding that Madhya Pradesh i.e. Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, 1991 is not a scheme framed by Virtue of the power given u/s 3 of the Essential Commodities Act. This Court held, that prosecution of the accused in that case was not valid inasmuch as, the scheme itself has a provision to sentence the violator for imprisonment for a period of three months and to pay fine of Rs. 2000/- and in default of fine to suffer RI for a period of three months as such, prosecution of a person who has violated the scheme u/s 3/7 of the Essential Commodities Act was not held to be valid. it will be also fruitful to reproduce paragraph 6 and 7 of the said judgment which is as under :-

The validity of the "Scheme" was considered in Madhya Pradesh Ration Vikreta Sangh Society and Others Vs. State of Madhya Pradesh and Another, . and it was held that the "Scheme" was not made in exercise of any power conferred by the order u/s 3 of E.C. Act Clause 2(d) of the order only defines the expression of "Government Scheme" and it does not confirm any power to make scheme. The definition itself postulates that the "scheme" is one which is made in exercise of its Executive Power. The executive power of the State is provided in Art. 162 of the Constitution extends to the matter with respect of which the legislature of the State has power to make laws. It was the duty and burden of the prosecution to prove the nature of "scheme", and whether the "scheme" for violation of which appellant has been convicted is framed under the provisions of Section 3/5 of the E.C. Act.

It will be fruitful to reproduce Shiv Kumar v. State of M.P. 2005 (II) M.P. Weekly Note Note No. 86 where it is held:

Section 3 of the Essential Commodities Act confers power on the Central Government as well as on the State Government to provide for regulations for prohibition, production, supply and distribution of essential commodities and section 7 of the Act provides penalties for contravention of any order made u/s 3. First condition for prosecuting a person u/s 7 is that there should be a contravention of the control order issued by the State Government u/s 3 of the Essential Commodities Act. Any Scheme framed under the executive powers by the State Government may not come within the purview of the control order and for that it would not be necessary that it should satisfy the provisions laid down u/s 3 of the Act. Therefore, in order to prosecute a person for violation of the terms and conditions of the scheme it is necessary for the prosecution to prove that the scheme is in the nature of control order and further to prove that the same has been issued u/s 3 of the Essential Commodities Act and in the absence of such an evidence, any scheme framed under executive power cannot fall within the purview of the control order and the person can not be prosecuted and held guilty.

In the case of Madhya Pradesh Ration Vikreta Sangh, Jabalpur and Others Vs. State of Madhya Pradesh, Bhopal and Another, it has been held that the scheme was not made in exercise of any powers conferred by the Act. Division Bench held that the scheme was not made in exercise of powers conferred u/s 3 read with section 5 of the Essential Commodities Act and was made only in exercise of executive powers of State. It was also pointed out that the aforesaid decision was affirmed by the apex court in appeal in the case of Madhya Pradesh Ration Vikreta Sangh Society and Others Vs. State of Madhya Pradesh and Another, Similar view has been taken by this Court in the cases cited above. Therefore, when any scheme framed is covered u/s 3/5 of the Essential Commodities Act the case can be taken for its violation but if the scheme is not framed under the authority of the Act. and it is only framed under the executive powers of the State Government, accused cannot be prosecuted for the violation of executive orders of the State Government.

In view of the aforesaid, the order framing charge against the petitioner u/s 3/7 of the Essential Commodities Act vide order dated 19.1.2011 is set aside but with direction to the Trial Court to frame charges as could be framed against the petitioner in accordance with law for which, the case is remanded back to the Trial Court where the parties are directed to appear on 10th May, 2012. Let a copy of this order be sent to the Trial Court. The petitioner is also directed to appear before the Trial Court on that date failing which his bond filed subsequent to the order of suspension of sentence by this Court would stand cancelled and the Trial Court will be free to take steps to apprehend the petitioner for further trial of the petitioner in this case.