Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 346 (JHR)

Manohar Sahu v. State of Jharkhand

2014-03-05

R.R.PRASAD

body2014
Order : Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 26.09.2011 passed in Palkot P.S. Case No.18 of 2011 (G.R. No.360 of 2011) whereby and whereunder, cognizance of the offences punishable under Sections 419, 420, 414 of the Indian Penal Code and also under Section 7 of the Essential Commodities Act, has been taken against the petitioner. 3. It is the case of the prosecution that when Block Supply Officer, Palkot laid a raid over the shop and house of this petitioner-a P.D.S. Dealer, Rice, Wheat, and K. Oil were seized from the shop as well as house of this petitioner, a case was lodged on the premise that the aforesaid articles meant for public distribution to the beneficiaries, have not been distributed to them. 4. The matter was taken up for investigation. After completion of the investigation, the charge sheet was submitted. Upon which, cognizance of the offences, as aforesaid, was taken vide order dated 26.09.2011, which is under challenge. 5. Md. Z. Ahmad, learned counsel appearing for the petitioner submits that the Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order,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 Essential Commodities Act, 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. 6. 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 on the day of seizure, has not authorized 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. 7. A counter affidavit has been filed on behalf of the State wherein same fact has stated which is there in the first information report. 8. It has already been held in number of cases including case of Aloke Dutta in Cr. M.P. No.56 of 2012, that provision of the Unification Order 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. 9. Further, it has been held that under clause 10, a person needs to be authorized to effect search and seizure. The said provision reads as follows:- “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. 10. (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. 10. 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. 11. Admittedly, when search and seizure was effected, the State Government had not issued any Notification in terms of Clause 10. 12. It be stated that only in the month of September, 2013, such notification has been issued by the State Government. Therefore, it is quite obvious that B.D.O. Palkot, on the day of seizure, had never been authorized by the State Government to effect search and seizure of the P.D.S Shop. 13. 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. 14. So far the offence under Sections 419, 420 and 414 of the Indian Penal Code is concerned, none of the offences under which cognizance has been taken, gets attracted. 15. Accordingly, entire criminal proceeding of Palkot P.S. Case No.18 of 2011 (G.R. No.360 of 2011) including order dated 26.09.2011 under which cognizance has been taken is, hereby, quashed. 16. In the result, this application stands allowed. Application allowed.