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2013 DIGILAW 188 (JHR)

Anita Devi v. State of Jharkhand

2013-02-05

R.R.PRASAD

body2013
ORDER This application has been filed for quashing bf the First Information Report of Meherma P.S. Case No. 154 of 2011 (G.R. No. 1212 of 2011) instituted under Sections 7 and 8 of Essential Commodities Act. 2. The case of the prosecution as it appears from the FIR is that when five bags containing rice were being carried over a Tamtam, it was intercepted by the villagers. On being quizzed Tamtamwala disclosed that at the instance of Ajay Poddar he had brought said bags of rice from the house of one Anita Devi. a P.D.S. Dealer. When such information was received by the In-charge Block Supply Officer Meherma he came at the spot and seized the bags of rice under a seizure list and also raided the shop of Anita Devi but it was found closed. Thus it was alleged that Ajay Poddar had purchased the said bags or rice from the shop of Anita Devi. a P.D.S. Dealer for the purpose of selling it in the black market. 3. On such allegation a case was registered as Meherma P.S. Case No. 154 of 2011 under Sections 7 and 8 of Essential Commodities Act. 4. The First Information Report is being sought to be quashed on the ground that the In-charge Block Supply Officer. Meherma, who had seized five bags of rice upon which a case was registered, had never been authorized to make search and seizure in terms of Clause 10 of the Public Distribution System (Control) Order. 2001. 5. Learned counsel appearing for the petitioner submits that the Central Government repealed all the control orders applicable to P.D.S. Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order. 2001 whereby Annexure-6 to the Public Distribution System Order does prescribe that the State Government are to issue an order under Section 3 of the Essential Commodities Act regulating sale and distribution of the commodities relating to Public Distribution System but the Government of Jharkhand has not issued any such order tinder Section 3 of the Public Distribution System (Control) Order. 2001 and thereby the P.D.S. Dealers who even indulge themselves with the illegality and irregularity in• the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted and in that event, case of the person other than P.D.S. Dealer stands on better footing. 2001 and thereby the P.D.S. Dealers who even indulge themselves with the illegality and irregularity in• the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted and in that event, case of the person other than P.D.S. Dealer stands on better footing. Thus, the prosecution against the petitioner No.2 and also the petitioner No.1, a P.D.S. Dealer, gels vitiated. 6. Other limb of the argument is that under the said order the State Government is .required 10 authorize some person with the power of search and seizure in terms of Clause 10 of the said Order but the State Government till date has not come forward with any authorization authorizing any person to make search and seizure in terms of Clause 10 of the said Order. Thus, the seizure made by a person who has not been authorized in terms of Clause 10 of the said Order can always be said to be illegal and the prosecution based on such seizure, would certainly get vitiated and under this situation, the FIR is fit to be quashed. 7. Learned counsel further submits that the said issue had been raised in connection with the other cases wherein the State failed to show that any such order under Section 3 of the Public Distribution System (Control) Order, 2001 has been issued by the State of Jharkhand and consequently it could not be shown that any person has been authorized in terms of Clause 10 of the Public Distribution System (Control) Order. 200 I to make search and seizure. Similar is the situation as on today and therefore, the FIR warrants to be quashed. 8. A counter-affidavit has, been filed wherein same fact which is there in the FIR, has been reiterated. 9. In view of the submission, one needs to take notice of Clause 14 of the Public Distribution System (Control) Order, 2001 which reads as under :- "14. Provisions of the Order to prevail over previous orders of State Government.- The provisions of this order shall have effect notwithstanding anything to the contrary contained in ,any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement." 10. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provisions as contained in Clause 14. 11. In such situation, the provision as contained in the Bihar Trade Articles (Licences Unification) Order 1984. after commencement of the Public Distribution' System (Control Order, 2001 would not be workable so far it relates to the matter relating to distribution of PDS commodities. 12. That apart, nothing seems to be there on the record that the Slack Supply Officer has been authorized by the State Government under Clause 10 to make search and seizure. Therefore, any case, based on such seizure, which has not been effected by a authorized person, gets vitiated. 13. The proposition as stated above has already been laid down in a case of Alake Dutta v. State of Jharkhand. (Cr. M.P. No. 56 of 20 12) Under the circumstances the VIR certainly warrants to be quashed. 14. Accordingly, the First Information Report of Meherma P.S. Case No. 154 of 2011 (G.R No. 1212 of 2011), instituted under Sections 7 and 8 of Essential Commodities Act against the petitioners, is hereby quashed. 15. In the result, this application stands allowed. Application allowed.