1. Learned counsel for the petitioner is permitted to make necessary correction in the first paragraph of the petition.

2. Heard counsel for the petitioners and the State.

3. Petitioners have filed this application for quashing the order dated 18.6.2005 passed by the S.D.J.M. Birpur in G.R. No. 306 of 2003 arising out of Pratapganj P.S. Case No. 36 of 2003 whereby the prayer of the petitioners for discharge by filing petition under Sec.239 Cr.P.C. has been rejected. The only ground which has been raised by the petitioners for their discharge was that since they are not licensee under the Public Distribution System, cannot be prosecuted for offence under section 7 of the Essential Commodities Act for violation of any of the conditions of the licence, relating to an allegation that the kerosene oil concealed and kept for black marketing was recovered from the house of the petitioners.

4. Counter affidavit has been filed on behalf of the State wherein it has been admitted that the petitioners were not the licensee but Jai Narain Rishideo who is also accused in this case was a licensee of Fair Price Shop under the Public Distribution System. He kept 9 drums of Kerosene oil concealed in the house of these petitioners for black marketing.

5. Considering the admission on the part of the State that the petitioners are not licensees under the Public Distribution System, their prosecution under section 7 of the Essential Commodities Act is completely without jurisdiction. It is well settled that only a licensee under the Public Distribution System can be prosecuted for violation of any terms and conditions of the licence issued under Unification Order. This being the admitted position, the prayer of the petitioners for discharge should have been considered and allowed by court below. The S.D.J.M. Birpur without considering the legal aspect of the matter has dismissed the petition for discharge.

6. Accordingly the impugned order dated 18.6.2005, passed by the S.D.J.M. Birpur in G.R. Case No. 306 of 2003 arising out of Pratapganj P.S. Case No. 36 of 2003 is quashed. This application is allowed.