KAMLESHWARI SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the counsel for the petitioner and the counsel appearing for the State.

(2.) PETITIONER , who was Assistant Teacher in Middle School Belhar, Banka since, 1993, became Principal, In -charge, of that school in the month of July, 2003. The Government had introduced Mid -day Meal Scheme for students. Being the incharge, Principal of that middle school, the petitioner had to lift allotted quota of meal from competent authority and to distribute the same among the students. Petitioner regularly lifted allotted quota and used to distribute it among the students. On 21.10.03, Belhar P.S. Case No. 98/03 was instituted against the petitioner and one, Chandan Kumar Singh alleging that the mid -day meal which was for distribution among the students of Belhar Middle School, was being sold in the shop of Ghanshyam Bhagat.

(3.) THIS application has been filed for quashing the order of cognizance dated 16.3.05 whereby cognizance u/s 7 of the Essential Commodities Act read with 34 of the IPC has been taken. While challenging the order of taking cognizance, counsel for the petitioner submits that after investigation in this case, the Investigation Officer has submitted final form stating that no prima facie case is made out. The Magistrate has taken cognizance as he did not accept the final form. Section 7 of the Essential Commodities Act attracts only when there is any violation of Bihar Control Order and when as provided u/s 11, on the basis of the police report, any case u/s 7. of the Essential Commodities Act.is made out. Since final form was submitted and the police report did not indicate the commission of any offence u/s 7 of the Essential Commodities Act, the order taking cognizance is illegal and without jurisdiction. In support of this argument, reliance has been placed on decisions reported in 1977 BBCJ 568 (Brahm Kumar Agarwal Vs. The State of Bihar), 1978 BBCJ 331 (Googan Lal Marwari and Anr. Vs.The State of Bihar) and 1998(3) PLJR 507 (Nathuni Yadav and Ors. Vs. The State of Bihar and Anr.). Another alternative argument advanced by the petitioners counsel is that the wheat which was supplied for distribution under Mid -day Meal Scheme is a free commodity under the Control Order. The petitioner admittedly is neither a licensee nor a dealer. In such a circumstance, it cannot be alleged that there was violation of any of the conditions of Bihar Trade Articles (Licence Unification) Order, 1984. Since there is no violation of the Unification Order and the petitioner is not a licensee, his prosecution u/s 7 of Essential Commodities Act is completely without jurisdiction.