ORDER
S.L. Kochar, J.
1. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing the FIR vide Crime No. 44/2005, dated 30-7-2005 registered by Police of Police Station, Brijpur, District Panna (M.P.) against the petitioners and other co-accused persons under Section 3/7 of the Essential Commodities Act, 1955 (for short 'the Act') for commission of breach of Clauses 5,6 (4), 7 (4), 10 (1), 11 and 12 of the Madhya Pradesh (Khadya Padarth) Sarvajnik Nagarik Poorti Vitran Scheme, 1991, M.P. Food Stuffs (Civil Supply and Distribution) Scheme, 1991 (hereinafter called 'the Scheme of 1991').
2. Short resume of the facts necessary for decision are that the Junior Supply Officer, Panna, after due enquiry on 13-12-2003 in presence of SDO (Revenue) and Sub Inspector Shri Khurshid Khan, Police Station, Brajpur along with Panchas inspected the Fair Price Shop of Prathmik Krishi Sakh Sahakari Samiti Maryadit, Silghara and Diya and found 74 quintal, 16 quintal, 15.74 quintal, wheat issued to Society by petitioner No. 2 Sheikh Baba Baksh from Leed Sanstha Thokh Upbhokta Bhandar, Panna under Scheme for distribution of wheats to persons falling below the poverty line, Antyoday Anna Yojana and Mid Day Meal Programme, respectively. Along with wheat 3.55 quintal and 80 kg rice as well as five quintal sugar unloaded in the jurisdiction of Gram Panchayat, Pahadikheda (Satna Road) instead of in the shop of the Society. All these commodities were seized and given on Supurdginama to petitioner No. 1 who was the Manager of the society. On enquiry, it was found that with the consent of the employee of the Leed Sanstha, the commodities were unloaded at the house of Shri Ramgopal Gupta situated in the jurisdiction of Khera Gram Panchayat. Some more commodities were also found kept illegally for the purposes of black marketing and commodities were not distributed by the Society according to Rules/Scheme. It was also found that commodities were not distributed to the consumers on the fixed days by the Government, therefore, the petitioners and other accused persons have committed breach of above mentioned clauses of the Scheme, 1991 read with Section 3/7 of the Act.
3. Learned Counsel for petitioners has vehementally argued that FIR cannot be registered against the petitioner for breach of clauses/paras of the Scheme, 1991 because the Scheme is not framed under Section 3 of the Act and petitioner No. 1 was not responsible for sale or distribution of the commodities, his job was only to supervise and commodities were unloaded at a different place from the fair price shops because of heavy rain on hilly area where the roads were damaged.
4. It is also argued that the Scheme was framed under executive power of a State as provided in Article 162 of the Constitution of India and not under Section 3 read with Section 5 of the Act wherein breach of certain clauses of the Order is punishable under Section 7 of the Act. Learned Counsel placed reliance on judgments rendered by this High Court in cases of Mohan v. State of M.P. 1991 JLJ 348, Vishnu Prasad v. State of M.P. (1993) 1 MPWN 103, Sukhuram v. State of M.P. : 2000(4)MPHT363 , Danvarilal v. State of M.P. 1995 40 MPLJ 521, Santosh Kumar v. State of M.P. (1995) 1 MPWN 41, Shiv Kumar v. State of M.P. : 2005(3)MPHT466 , Prakash Babu v. State of M.P. (2005) 1 MPLJ 430, Arvind Kumar v. State of M.P. : 2008(2)MPHT38 , M.P. Ration Vikreta Sangh v. State : AIR1981MP203 and Sahkari Sanstha Anaj Vikreta Sangh and Ors. v. State M.P. : AIR1981SC2030 .
5. Learned Counsel for respondent State has only submitted that at a premature stage of investigation, inherent power should not be used for quashing the FIR, looking to the seriousness of the charges.
6. The core question for consideration before this Court is that whether the Scheme of 1991 is the part of M.P. Food Stuffs (Distribution Control) Order or not and is an order under Section 3 read with Section 5 of the Act?
7. The State in exercise of powers under Section 3 read with Section 5 of the Act made M.P. Food Stuffs (Distribution Control) Order, 1960 by Notification No. GSR 1088, dated 15th November, 1958 published in M.P. Rajpatra Part 1, dated 5-11-1960 at Page 1036. In this order, Clause 2 (d) defines 'Government Scheme' to mean 'a Scheme for distribution of Food Stuffs to consumers through Fair Price Shops set up by Government in this behalf. By amendment dated 30th October, 1980 Clause 2 (bb) was added in the definition of Fair Price Shop to mean 'a Shop set up by the Government under the Government Scheme'.
8. The State Government made a Scheme under Clause 2 (d) of 1960 Order by Notification No. 2228-1905-XXIX-1-81, dated 20th March, 1981. In this Scheme, Clause 3 (1) provides for setting up of Fair Price Shop by the Collectors in each Districts. Clause 4 deals with appointment of agents for running Fair Price Shop and appoint agent as to enter into an agreement with the State Government as required by Clause 5 for running the Fair Price Shop and as to deposit certain amount as security. Clause 7 was meant to regulate the size of Fair Price Shop and the time when they are to remain open. Clause 8 prescribed about payment of commission and other expenses at the rate fixed by the Government. According to Clause 9 agent was required to maintain register as may be directed by the Government. Clause 10 provides for displaying the board at a shop specifying the price of Food Stuffs, their quantity etc. Clause 11 requires to send quarterly return to the Collector by the agents. According to Clause 12 agent was required to follow the directions issued from time to time by the State Government and Authorities. Clause 13 deals with penalty. On contravention of any condition of the agreement by agent, his appointment could be suspended or cancelled. Clause 14 made for appeal to authorised officer.
It would be apposite to mention here that earlier Notification No. GSR 1088, dated 15th November, 1958 was replaced by a fresh Notification No. GSR 800, dated 9th June, 1978 issued by the Central Government delegating its power under Section 3(1) of the Act to the State Government to make orders in respect of matters specified in various sub-clauses of Section 3(2) in relation to Food Stuffs subject to certain conditions specified therein.
9. Under Section 7 of the Act person can be convicted only when prosecution is able to establish that he has committed breach of any order made under Section 3 of the Act. Section 5 gives power to Central Government to delegate its power to State Government for the purposes of making the orders.
10. The Notification dated 20th March, 1981 shows that the Scheme was made by the State Government as per definition of Scheme under Clause 2 (d) of the Order, 1960, which reads as under:
2. (d) 'Government Scheme' means the Scheme for distribution of food stuffs to consumers through fair price shops set up by the Government in this behalf.
11. The validity of the 'Scheme' was considered in case of M.P. Ration Vikreta Sangh, Jabalpur and Ors. v. State of M.P. and Anr. : AIR1981MP203 , and it was held by the Division Bench that Clause 2 (d) only defines the expression of the Government Scheme and it was not made in exercise of any power conferred by the Order and definition does not confer any power to make Scheme. It was also held that the definition itself postulates the Scheme is one which is made in exercise of its executive power of a State as prescribed on Article 162 of the Constitution of India which extends to the matters with respect to which the Legislature of the State has power to make laws. The topic of distribution of Food Stuffs is covered by Entry 33 in List 3 of the Seventh Schedule and the executive power of the State extends to this topic. It was also held in the case of Ration Vikreta (supra) that the Scheme was not made in exercise of the powers conferred by Section 3 read with Section 5 of the Act and was made only in exercise of the executive power of the State. This decision was affirmed by the Apex Court reported in : [1982]1SCR750 , M.P. Ration Vikreta Sangh v. State of M.P. Also see Sarkari Sanstha Ana] Vikreta Sangh and Ors. v. State of M.P. and Ors. : AIR1981SC2030 . In the case of Mohan v. State of M.P. (supra), the argument was advanced before the learned Single Judge that breach of any conditions of Scheme formulated by the State Government under its executive power enshrined under Article 162 of the Constitution of India would not be punishable under Section 7 of the Act. For conviction under Section 7 of the Act there must be a breach of provision of the Order made under Section 3 by the Central Government or under Section 3 read with Section 5 of the Act by the State Government. The learned Single Judge accepted the argument in view of Supreme Court verdict in case of Ration Vikreta Sangh (supra), and set aside the conviction of the appellants and prosecution under Section 7 of the Act for breach of Clauses of the Scheme.
12. In case of Darwarilal (supra), the learned Single Judge of this High Court did not agree with the opinion given in case of Mohanlal (supra), therefore, referred the matter to Division Bench for decision and the then Hon'ble Justice Shri P.N.S. Chouhan speaking for the Bench answered the reference that the view taken by the learned Single Judge in Mohan's case (supra), is the correct view.
13. In the case of Santosh Kumar v. State of M.P. (supra), Santosh Kumar was prosecuted and convicted by the Lower Court for commission of breach of Scheme 1981 and his conviction was rightly set aside by the learned Single Judge relying on judgment passed in case of Mohan v. State of M.P. and M.P. Ration Vikreta Sangh (supra). Same is the position in case of Vishnu Prasad, Maniram and Sukhuram (supra). They all were prosecuted for commission of breach of Scheme, 1981.
14. It appears that in view of the above mentioned legal position and serious lacuna in M.P. Food Stuff (Control) Order, 1960, State Government made the amendment in the order creating Clause 4 by Notification No. F-9-113- 89-XXIX-2 published in M.P. Extra Ordinary Gazette dated 21-2-1991 and it came into force from the date of publication. For convenience the Amendment published in Extra Ordinary Gazette is reproduced as under:
Bhopal, the 21st February, 1991
No. F.9-113-89-XXIX-2.- In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955) read with Government of India, Ministry of Agriculture and Irrigation (Department of Food), Order No. GSR 800, dated the 9th June, 1978 and with the prior concurrence of the Central Government, the State Government hereby makes the following amendment in the Madhya Pradesh Food Stuffs (Distribution Control) Order, 1960, namely:
AMENDMENT
In the said order,-
(1) For Sub-clause (d) of Clause 2 (d), the following clause shall be substituted, namely:
(d) 'Government Scheme' means the scheme for distribution of Food Stuffs to consumers through fair price shops set up by the Government in this behalf under Clause 4 of this order.'
(2) For Clause 4, the following clause shall be inserted, namely:
'4. Government may make a scheme for the distribution of Food Stuffs to the consumers through fair price shops.'
(3) This amendment shall come into force with effect from the date of publication of this notification in the 'Madhya Pradesh Gazette'.
By order and in the name of the Governor of
Madhya Pradesh,
Prashant Mehta, Addl. Secy.
15. In pursuance of above amendment State Government formulated M.P. Food Stuffs Civil Supply and Distribution Scheme, 1991 by Notification dated 7th December, 1991, No. F-6-63/91/29/2. This Scheme is providing provisions for allotment of Fair Price Shop, its management, conditions for allotment of shops, maintenance of account, exhibition of price on the board etc. The aim and ambit of the order as well as Scheme are to provide essential commodities (Food Stuffs) on a reasonable price to poor persons. As per para four of the Scheme shops can be allotted at District Head Quarter by Food Controller/Food Officer and at rest of the places Food Officer and in Block Level, Sub-Divisional Officers. The shop is to be allotted to co-operative societies. Para five is providing provision for execution of bond and securities in a specified proforma and according to para six, society of fair price shop will get the food stuff from the agencies notified by the Collector and other provisions for running the shop by the Society. This Scheme is a very exhaustive Scheme meant for regulating the proper and fair distribution of food stuffs to the public.
16. It is crystal clear that by insertion of independent Clause 4 in Order 1960 (supra), the power has been given to the State Government to make Scheme and under this provision, Scheme 1991 was formulated and is in operation. The earlier Scheme of 1981 was made on the basis of definition Clause 2 (d) in M.P. Food Stuffs (Distribution Control) Order, 1960 and according to Division Bench judgment rendered in case of Jabalpur Ration Vikreta Sangh (supra), on the basis of Clause 2 (d) Scheme could not be formulated but same could be followed and was made under executive power of the State as per Article 162 of the Constitution. Such is not the position after amendment in Order, 1960 authorising State Government to make Scheme as per independent Clause 4 and Scheme of 1991 has been formulated and applied by the State Government and in the considered view of this Court Scheme of 1991 is the part of Order 1960 made under Section 3 read with Section 5 of the Act, therefore, breach of any condition of the Scheme would be punishable under Section 7 of the Act.
17. Now it is to be seen whether in judgments of Prakash Babu, Shiv Kumar and Arvind Kumar (supra), amended Clause 4 in the Order 1960 has been considered or not. This Court has gone through all the three judgments entirely and does not find even a whisper about amendment in 1960 Order vide Clause 4 providing specific power to State Government to formulate the Scheme and in pursuance there of Scheme 1991 has been formulated. After amendment of Clause 4 in Order 1960 and formation of Scheme 1991 in pursuance thereof, there can be no application of judgment rendered by Division Bench in Jabalpur Ration Vikreta Sangh (supra), and affirmed by the Supreme Court.
18. In case of Jeevanlal and Ors. v. State of M.P. and Ors. (2001) 1 MPJR 32, the learned Single Judge of M.P. High Court, Indore Bench has considered above mentioned Amendment and held as under:
Obviously, the basis for holding that the Scheme, 1981 is merely an executive exercise of the State, was that the M.P. Order, 1960 did not then authorise the State Government for making such a Scheme but merely defined it. Now, that the Order 1960 after Amendment of 1991, expressly authorises the State Government to frame a Scheme and the expression 'The Government Scheme' in Clause 2 (d) having been accordingly amended, there can be no manner of doubt that the Scheme, 1991 made in pursuance of these amended clauses, is not a mere executive order of the State Government, but it is a statutory 'Order' within the meaning of Section 3 of the EC Act, the contravention of which would be an offence under Section 7 of the Act.
Lastly, it was contended by the learned Counsel for the applicant that no prior concurrence of the Central Government in terms of Section 5 of the EC Act was obtained before amending the M.P. Order, 1960 and, therefore, the notification dated 21-2-91, Order, 1960 is illegal. I am not persuaded by the argument. The controversy stands resolved by the decision of Division Bench of this Court in the case of M.P. Ration Vikreta Sangh.
In the instant case also, as is evident from the Notification amending the M.P. Order, 1960, prior concurrence of the Central Government was obtained for the amendment although it was not required.
I, thus hold that the Scheme, 1991 is an Order within the meaning of Section 3 of the EC Act, the violation of which would be an offence under Section 7 of the Act. This revision should, therefore, fail and is dismissed.
I am in full agreement with above mentioned judgment of learned Single Judge. None of the Counsel for the parties herein this case has brought into the notice of this Court the aforesaid legal position and the judgment rendered by learned Single Judge in case of Jeevanlal (supra).
19. In all aforementioned three cases Prakash Babu, Shiv Kumar, and Arvind Kumar (supra), the Clause 4 of 1960 Order and formation of fresh Scheme 1991 in pursuance thereof the above referred judgment passed in case of Jeevanlal (supra), have not been considered at all, therefore, all the three judgments cannot be considered as precedent and are rendered per incuriam. Apex Court in case of Government of Andhra Pradesh and Anr. v. B. Satyanarayanrao (dead by L.Rs.) : (2000)IILLJ545SC held as under in Para eight:
Per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue.
20. In the aforesaid three cases, there is absolutely no consideration and discussion about Amended Clause 4 in Order 1960 authorising or empowering the State Government to make the Scheme as defined under Section 2(d) of the Order and Scheme 1991 has been framed under this provision. In case of Mayuram Subramanyam v. CBI : 2006CriLJ3285 , the Supreme Court has discussed about the judgment rendered per incuriam and observed in Paras 12,13 and 14 as under:
12. In State through S.P. New Delhi v. Ratan Lal Arora : 2004CriLJ2105 , it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of.
13. 'Incuria' literally means 'carelessness'. In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotblc in law', as held in Young v. Birstol Aeroplane Co. Ltd. (1944) 2 All ER 293, is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short 'the Constitution') which embodies the doctrine of precedents as matter of law. The above position was highlighted in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. : 1993(41)ECC326 . To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. The position was highlighted in Nirmal Jeet Kaur v. State of M.P. : (2004)7SCC558 . The question was again examined in N. Bhargavan Pillai (dead by L.Rs, and Anr. v. State of Kerala : 2004CriLJ2494 . It was observed in Para 14 as follows: 2004 AIR SCW 2797.
14. Coming to the plea relating to benefits under the Probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused/appellant's plea relating to grant of benefit under the Probation Act. The decision in Bore Gowda's case (supra), does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct.
21. The learned Counsel for petitioners has filed Annexure A-2 Order passed in M.Cr.C. No. 7611/2005 [Shripatti Garg v. State of M.P.], dated 4-10-2005, passed by learned Single Judge of Principal Bench. The FIR against Shripatti Garg, the co-accused in case of the petitioners, was quashed. This order also suffers with same deficiency as discussed herein above, therefore, cannot be considered as precedent having binding effect.
22. Looking to the contents of the FIR under challenge, the breach of provisions of Public Distribution System (Control) Order, 2001 are also attracted for which the police has not taken any notice. This order has been framed by the Central Government published in Extra-ordinary Gazette of State of India Part II Section 3, Sub-section (1), dated 31st August, 2001. This order has been Amended by Notification dated 11th February, 2002 and 29th June, 2004 and also in time to time. This order with amendments is available in M.P./Chhattisgarh Avashyak Vasthu Manual Evam Upbhokta Samrakshan published by Jabalpur Law Publications of the year 2007 at Page 112. In this order, Public Distribution System (Control) Order, 2001, Family Above Poverty Line, Antyoday Kutumb, Family Below Poverty Line and other words are defined.
23. Consequently, in view of the above discussion, there is no substance this petition to quash the FIR. Hence same is hereby dismissed.