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Jharkhand High Court · body

2013 DIGILAW 783 (JHR)

Ropa Oraon v. State of Jharkhand

2013-07-03

R.R.PRASAD

body2013
ORDER 1. This application has been filed for quashing of the entire criminal proceeding of Kuru P.S case no.29 of 2012 including the order dated 23.5.2012 whereby and whereunder cognizance of the offence punishable under Section 7 of the Essential Commodities Act has been taken against the petitioner. 2. It is the case of the prosecution that on receiving secret information that the petitioner has indulged himself in selling K. Oil clandestinely. The Block Supply Officer, Senha reached at the business premises of the petitioner where one Raju Sahu was found present with one Auto rickshaw. The said Raju Sahu on being quizzed disclosed that he had purchased 600 liters of K.Oil from this petitioner @Rs.20/- per liter. Even the petitioner accepted this fact. Therefore, a case was lodged alleging therein that K. Oil which was meant for distribution among the cardholders was sold in black market. 3. On such allegation, a case was registered as Kuru P.S case no.29 of 2012. After investigation, charge sheet was submitted. Upon which cognizance of the offence punishable under Section 7 of the Essential Commodities Act was taken, vide order dated 23.5.2012 which is under challenge. 4. Mr. Nilesh Kumar, learned counsel appearing for the petitioner submits that the Central Government has repealed all control order applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order, 2001 whereby annexe 6 to the Public Distribution System Order does prescribe that the State Government are to issue an order under Section 3 of the Act regulating sale and distribution of the essential 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 Dealer 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. Therefore, prosecution against the petitioner gets vitiated. 5. Other limbs 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, order taking cognizance is fit to be quashed. 6. Learned counsel further submits that this point has been decided by this Court in a case of Aloke Dutta vs. State of Jharkhand (Cr.M.P.No.56 of 2012). 7. In the context of the submission one needs to refer to 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 Block Supply 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. 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. In absence of any denial that the Block Supply Officer has never been authorized by the State Government, plea of the petitioner has to be accepted that Block Supply Office 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. Furthermore, the case lodged on the basis of such search and seizure certainly gets vitiated. 14. This proposition has also been laid down in a case of Narain Prasad @ Sri Narain Sao and others vs. State of Bihar [ 1998 (2) PLJR 330 ]. Furthermore, the case lodged on the basis of such search and seizure certainly gets vitiated. 14. This proposition has also been laid down in a case of Narain Prasad @ Sri Narain Sao and others vs. State of Bihar [ 1998 (2) PLJR 330 ]. Similar issue fell for consideration before the Patna High Court 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 Block Supply Officer is quite illegal and on the basis of such seizure, any prosecution laid would not be maintainable. 17. Under the circumstances, entire criminal proceeding of Kuru P.S case no.29 of 2012 including the order dated 23.5.2012 taking cognizance of the offence punishable under Section 7 of the Essential Commodities Act is hereby quashed. 18. In a the result, this application stands allowed. Application allowed.