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2007 DIGILAW 1060 (PAT)

Shiv Nandan Prasad v. State Of Bihar

2007-07-03

GHANSHYAM PRASAD

body2007
Judgment GHANSHYAM PRASAD, J. 1. This application under Sec. 482 Cr.PC has been filed to quash the Order of cognizance dated, 22nd September, 2006 passed by C.J.M., Nawada in Akbarpur P.S. Case No. 180 of 2005 thereby cognizance under Section 7 of the E.C. Act has been taken for violation of provisions of the Bihar Trade(Licenses Unification) Order, 1984. Heard the learned Counsel for the Petitioner as well as the State. 2. The submission of the learned Counsel for the Petitioner is that on the date of search and seizure, the Bihar Trade Articles (Licenses Unification) Order was not workable. There was no authorisation in favour of any of the authority for search and seizure launching prosecution. The Notification of the Government with regard to authorisation of the authorities to exercise jurisdiction under Public Distribution System Order, 2001 was notified much after the institution of the case on 25th May, 2006. It is further submitted that the cognizance taken on the basis of illegal search and seizure is bad and illegal. In support of it, the learned Counsel for the Petitioner has relied upon a decision reported in 2007(2) PLJR 103 (Maheshwar Prasad and Ors. V/s. State of Bihar). 3. The learned Counsel for the State also conceded that on the alleged date of the occurrence, the Notification with regard to authorisation of the authorities for search and seizure under Public Distribution System Order, 2001 was not yet been notified by the Government of Bihar. The Notification was published only on 25th May, 2006 i.e. much after the alleged search and seizure or institution of the case against the Petitioner. 4. Considered the submission of the learned Counsel for both the parties and also the decision of this Hon ble Court referred above. In paragraph 8 of the aforesaid decision, it has been held as follows: Supplementary counter affidavit has been filed on behalf of the State to bring the Notification of the Government authorising the authorities to exercise jurisdiction under Clauses 7, 8, 10 and 11 of the Public Distribution System (Control) Order, 2001. The Notification has been published in the Extraordinary Gazette on 25th May, 2006. This indicates that on the date of occurrence there was no authorisation for making search and seizure as well as institution of the First Information Report. The Notification has been published in the Extraordinary Gazette on 25th May, 2006. This indicates that on the date of occurrence there was no authorisation for making search and seizure as well as institution of the First Information Report. The earlier Unification Order had already been amended as provided under Clause 14, and no Notification was published under clause 10. The Notification has been published on 25m May, 2006. In between 31st August, 2001 to 25th May. 2006, there was no authorisation in favour of/any of the Authority for search, seizure and institution of the case. This has been held in a decision reported in 1998(2) PLJR, 330 (Sri Narain Prasad @ Sri. Narain Sao and five Ors. V/s. The State of Bihar) no action can be taken on the basis of ah illegal search and seizure and any proceeding initiated on its basis must be quashed. 5. On perusal of the record, it is quite clear that this Petitioner is a P.D.S. Dealer having valid licence. The premises of the Petitioner was searched by Block Supply Officer on 10th December, 2005. On that very date who was not legally authorised for search and seizure or filing of the case for violation of any provision of Bihar Trade Articles (Licenses Unification) Order, 1984. 6. Thus, having regard to the facts and circumstances of the case, it is quite clear that the search and seizure as well as the filing of the case against the Petitioner under Section 7 of the E.C. Act was without jurisdiction. Accordingly, the Order taking cognizance is also bad and illegal. In the result, this application is allowed and the impugned Order of cognizance is hereby quashed.