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2014 DIGILAW 329 (JHR)

Bishnu Agarwal v. State of Jharkhand

2014-03-03

R.R.PRASAD

body2014
Order : Learned counsel appearing for the petitioner submits that earlier first information report of Jorapokhar P.S. Case No. 249 of 2012 registered under Sections 414/420/120B of Indian Penal Code and under Section 7 of Essential Commodity Act was sought to be quashed but during pendency of this application when cognizance of the aforesaid offences was taken vide order dated 17.11.2013, that has also been challenged to be bad. 2. Learned counsel for the petitioner submits that it is the case of the prosecution that while an Auto Rickshaw was carrying 38 bags of rice, it was intercepted and the bags of rice as well as machine, meant for sewing the bags etc., were seized and a case was lodged which was registered as Jorapokhar P.S. Case No. 249 of 2012 on the premise that the petitioner has indulged himself in selling rice in the black market though it were meant for distribution under the PDS Scheme. After investigation, charge-sheet was submitted upon which cognizance of the offence punishable under Sections 414/420/120B of Indian Penal Code and under Section 7 of Essential Commodity Act was taken vide order dated 17.11.2013, which is under challenge. 3. Mr. Nilesh Kumar, learned counsel appearing for the petitioner, submits that the Central Government has repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when the Central Government promulgated Public Distribution System (Control) Order,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 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. 4. It was further submitted that under the said order, 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 only in the month of August, 2013 has come forward with the notification authorizing certain persons to make search and seizure in terms of Clause 10 of the said Order. Under the circumstances, any search and seizure made by the person other than the person authorized 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. 5. It be stated that no counter affidavit has been filed perhaps on account of laches on the part of the department. 6. It be further stated that the issue, which has been raised on behalf of the petitioner, has been decided in a case of Aloke Dutta Vs. State of Jharkhand (Cr. M.P. No. 56 of 2012) wherein it has been held that the provision relating to the dealer under the Public Distribution System (Control) Order, 2001 would amount to be repealed by virtue of the provision as contained in Clause 14 of the Public Distribution System (Control) Order, 2001. 7. Further, it has been held that the person, who would be notified to be competent in terms of Clause 10 of the said Order, can effect search and seizure. 8. Here in the instant case as stated above, only in the month of August, 2013 the State Government has come forward with the notification issued under Clause 10 of the said Order, whereas the case has been lodged in the month of December, 2013 and therefore, in absence of notification being made under Clause 10 of the said Order on the day when search was effected, the person, who effected search, cannot be said to be authorized to make search and seizure and consequently entire prosecution based on such search and seizure would be vitiated. 9. Accordingly, entire criminal prosecution of Jorapokhar P.S. Case No. 249 of 2012 (G.R. No. 4733 of 2012), including the order dated 17.11.2013, taking cognizance of the offences punishable under Sections 414/420/120B of Indian Penal Code and under Section 7 of the Essential Commodity Act against the petitioner, is hereby set aside. 10. In the result, this application stands allowed. Application allowed.