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Jharkhand High Court · body

2013 DIGILAW 391 (JHR)

Md. Ishrail Ansari v. State of Jharkhand

2013-03-19

R.R.PRASAD

body2013
ORDER This application has been filed for quashing of the entire criminal proceeding of Jaridih P.S. Case No. 3 of 2012 (G.R. No. 39 of 2012) including the order dated 3.7.2012 whereby and whereunder, cognizance of the offences punishable under Sections 419 and 420 of Indian Penal Code as well as under Section 7 of the Essential Commodities Act has been taken against the petitioner. 2. It is the case of the prosecution that the petitioner, a dealer, under the public distribution scheme lifted 135.60 quintal of rice from the SFC godown for its distribution among the beneficiaries but he did not distribute the rice @ 40 Kg. per person and, therefore, the villagers had made complain to the informant. On receiving such complain, the informant-Circle Officer, Jaridih was asked to make inquiry. During that course, when he inquired from the petitioner he said that he has already distributed the rice among the card-holders but the card holders who had assembled there started saying that they have not received the rice and without distributing the rice the petitioner has made entries in the register of receiving rice by them. When the stock register was verified, it was found that the entries have been made with respect to distribution of rice to the card holders and even LTI were affixed against the names of card holders but those card holders had never put LTI after receiving commodities from the shop. 3. On such allegation, a case was registered as Jaridih P.S. Case No. 3 of 2012 for the offences punishable under Sections 419 and 420 of Indian Penal Code as well as under Section 7 of the Essential Commodities Act. Upon submission of charge-sheet when cognizance of the aforesaid offences was taken against the petitioner vide order dated 3.7.2012 it was challenged before this Court. 4. Mr. Upon submission of charge-sheet when cognizance of the aforesaid offences was taken against the petitioner vide order dated 3.7.2012 it was challenged before this Court. 4. Mr. Atanu Banerjee, learned counsel appearing for the petitioner, submits that the Central Government repealed all control orders applicable to PDS Dealer with effect from 31.8.2001 when it promulgated Public Distribution System (Control) Order, 2001 whereby annexe 6 to the Public Distribution System Order does prescribe that the State Governments are to issue an order under Section 3 of the Essential Commodities Act for regulating sale and distribution of the commodities relating to Public Distribution System but the State Government, Jharkhand has not issued any such order under Section 3 of the Public Distribution System (Control) Order, 2001 and thereby the PDS 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. Thus, the prosecution against the petitioner gets vitiated. 5. Other limb of the argument is that under the said order the State Government is required to 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. Therefore, if any search and seizure is made by a person who has not been authorized in terms of Clause 10 of the said order, such search and seizure would be quite illegal and the prosecution based on such seizure would get vitiated and under this situation, the order taking cognizance is fit to be quashed. 6. Learned counsel appearing for the State submits that the Dealer under the Public Distribution System are being governed by the Bihar Trade Articles (Licences Unification) Order 1984 and under that provision, licences are being given to the PDS Dealer to deal with the matter relating to distribution of the commodities and therefore, unless that Unification Order is repealed specifically by any subsequent order, the provision of the said Unification Order would remain in vogue and thereby FIR never warrants to be quashed. 7. 7. The proposition which has been advanced on behalf of the State seems to be contrary to the provision as contained in 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 Governments – 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.” 8. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System would amount to be repealed by virtue of the provision as contained in Clause 14. 9. In such situation, the provision of the Unification Order after commencing 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. 10. Now coming to other aspect of the matter, the argument has been advanced on behalf of the petitioner that the Circle Officer who had made search and seizure, upon which case has been registered has not been authorized by the State Government to make search and seizure. This plea which has been taken by the petitioner has not been controverted by the State Government. 11. In such situation, one needs to refer to clause 10 of the said order which reads as under : 10. Power of search and seizure – (1) An authority authorized by State Government shall be competent to inspect or summon such records or documents as may be considered by him necessary for examination and take extracts or copies of any records or documents produced before him. (2) If the said authority has reasons to believe on receipt of a complaint or otherwise that there has been any contravention of he provisions of this Order or with a view to securing compliance with this Order, he may enter, inspect or search the fair price shop or any premises relevant to transactions of business of the fair price shop. (3) The said authority may also search, seize or remove such books of accounts or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention of the provisions of this Order. (3A) The authority conducting search and seizure under sub-clause (3) shall inform the State Government or an officer authorized by it in this behalf, the details of the search conducted and the stocks of essential commodities so seized by them under that clause. (4) The provisions of section 100 of the Code of Criminal Procedure 1973, relating to search and seizure shall so far as may be, apply to search and seizure under this Order. 12. From perusal of the aforesaid provision, it does appear that only the authority authorized by the State Government would be competent to make search and seizure of a place on receipt of a complaint of irregularities is being committed by the Public Distribution System Dealer. 13. Since it has not been denied that the Circle Officer has been authorized by the State Government, it would be deemed that Block Supply Officer had no such authority to make search and seizure and thereby any search and seizure made by the Block Supply Officer would be quite illegal and on such search and seizure, if the case is brought, it gets vitiated. 14. The aforesaid propositions have also been laid down in a case of Narain Prasad @ Sri Narain Sao and others vs. State of Bihar [1998 (2) PLJR 330] as well as in a case of Maheshwar Prasad and another vs. State of Bihar [ 2007 (2) PLJR 103 ] wherein it has been held that previous order relating to Public Distribution System becomes ineffective on commencing of the Public Distribution System (Control) Order, 2001. 15. At the same time, it has also been held that in absence of any authority in terms of clause 10 of the Public Distribution System (Control) Order, 2001 search and seizure made by a person would be quite illegal. 16. Thus, there remains no doubt that search and seizure made by the Circle Officer is quite illegal and on the basis of such seizure, any prosecution laid would not be maintainable. 17. Accordingly, the court does not seem to be justified in taking cognizance of the offence under Section 7 of the Essential Commodities Act. 16. Thus, there remains no doubt that search and seizure made by the Circle Officer is quite illegal and on the basis of such seizure, any prosecution laid would not be maintainable. 17. Accordingly, the court does not seem to be justified in taking cognizance of the offence under Section 7 of the Essential Commodities Act. Hence, that part of the order dated 3.7.2012 taking cognizance under Section 7 of the Essential Commodities Act is hereby set aside. 18. So far the offence relating to Indian Penal Code is concerned, even if the allegations made in the FIR are taken to be true, no offence is made out either under Sections 419 or 420 of Indian Penal Code and, therefore, the order dated 3.7.2012 taking cognizance under Section 419 and 420 of Indian Penal Code is hereby quashed. 19. Since other allegation relating to offence under the Indian Penal Code also seems to be there, the matter is remanded back before the court concerned for passing order in accordance with law on the point of cognizance. 20. With this observation, this application stands disposed of.