( 1. ) ADDITIONAL Sessions Judge, Khurai in Sessions Trial No. 51/1991 vide impugned judgment dated 9-1-1992 recording conviction of appellant under Section 33 of the M. P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 sentenced him to undergo RI for a period of 2 years and to pay fine Rs. 2,991/ -. Being aggrieved, appellant has preferred this appeal under Section 374 (2), Cr. PC.

( 2. ) THE brief history of the case is that P. S. Khimliasa, District Sagar has filed a challan against the appellant with an allegation that while running a fair price shop, he has misappropriated about 4 quintals of sugar. On the date of inspection, i. e. , on 19-9-1989, Food Inspector alongwith SDO (R) inspected the fair price shop of appellant. It was found that 9 quintals of sugar was issued to the appellant for distribution in his fair price shop on 16-9-1989. As per register, appellant has distributed only 2. 75 quintals and 425 gms of sugar to card holders and 2. 21 quintals of sugar was found in his shop. Another three quintals of sugar was kept in Village Mahra and one quintal of sugar was misappropriated at Khimliasa. On verification of the record, these facts were found. On completion of investigation, challan under Section 33, M. P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982.

( 3. ) APPELLANT abjured the guilt. However, the Court below convicted the appellant under Section 33 of Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 for breach of Khadya Padarth Sarvajanik Nagrik Purti Vitaran Scheme, 1981 (M. P.) (hereinafter called the Scheme 1981") and sentenced him to undergo the imprisonment as stated above. ( 4. ) LEARNED Counsel for the appellant has vehemently argued that under Section 33 of the M. P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 prosecution can be lodged only against that dealer who is a dealer under any order issued under Section 3 of the Essential Commodities Act, 1955 and the appellant being a license holder under the Scheme 1981 could not have been prosecuted as it was an executive action under Article 162 of the Constitution with a view to ensuring equitable distribution of the stuffs at fair prices. It is well settled that there can be no conviction under Essential Commodities Act unless the prosecution is able to show that order is an order covered by Section 3 of the E. C. Act which has been contravened. Therefore, it has to be examined whether the Scheme is an order within the meaning of Section 3 of the E. C. Act, 1955.

( 5. ) SECTION 33 of the M. P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 is quoted below: 33. Tampering with the system by licensed dealer.- Whoever, being a dealer licensed under any order issued under Section 3 of the Essential Commodities Act, 1955 (No. 10 of 1955), instead of supplying the essential commodity, declared by or under the said Act, as the State Government may, by notification, specify for the purpose of this Chapter to the public concerned in accordance with the scheme of the public distribution system intentionally, knowingly or for corrupt motives transfers such essential commodity to of her channels or maintains false or fictitious account for the fair distribution of the same, shall be punished with imprisonment of either description which may extend to three years or with fine or both. The above section makes it clear that only licensed dealer under any order issued under Section 3 of the E. C. Act can be punished under above section. The appellant was a license holder under the Scheme 1981 and the validity of the Scheme 1981 was considered in Madhya Pradesh Ration Vikreta Sangh and Ors. etc. v. State of M. P. and Ors. AIR1981 SC 2001 , 1981 (3 )SCALE1420 , (1981 )4 SCC535 , [1982 ]1 SCR750 , 1982 (14 )UJ42 (SC ) and the Apex Court has held that the Scheme 1981 was not made in exercise of any power conferred by the order made under Section 3 of the E. C. Act, 1955. Clause 2 (d) of the order only defines that expression of gove