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Jharkhand High Court · body

2014 DIGILAW 485 (JHR)

Gajadhar Rajak v. State of Jharkhand

2014-04-07

R.R.PRASAD

body2014
ORDER Before proceeding with the matter, the order which was recorded on 11.02.2014needs to be reproduced which is hereunder: “Learned counsel appearing for the petitioner submits that upon search and seizure being effected by the Block Supply Inspector, a case has been registered against the petitioner being a dealer under the Public Distribution System, but on the day when the search and seizure was effected, the Block Supply Inspector had never been authorized by the State Government in terms of Clause 10 of the Public Distribution System (control) Order, 2001 and, therefore, any prosecution of the petitioner would be bad, in view of the ratio laid down in the case of Aloke Dutta vs. State of Jharkhand [2013 (2) East. Cr. C. 133 (Jhr.)]. As prayed for on behalf of the State, let this matter be listed on 4.3.2014so that in the meantime, counter affidavit be filed. Let a copy of the order be handed over tot he learned counsel appearing for the State for needful”. On the date fixed when the counter affidavit was not filed, again the case was adjourned by way of last indulgence with specific statement that if on the next date counter affidavit is not filed, the matter shall be decided on the basis of materials available on the record. In that view of the matter, the case is being disposed of.” 2. It is the case of the prosecution that this petitioner, a PDS Dealer had received rice in total 126.35 quintal for three months for distributing it among the beneficiaries under the scheme of BPL and Antodaya but number of card holders made complaint that they have not received rice and thus, it has been alleged that this petitioner having lifted 210.60 quintal of rice for distributing it did not distribute it among the beneficiaries and thereby he misappropriated it. 3. On such allegation, a case was registered as Rajmahal P.S. Case no.451 of 2012 under Section 7 of the Essential Commodities Act. The matter was taken up for investigation. On completion of investigation, when the charge sheet was submitted, cognizance of the offence punishable under Section 7 of the Essential Commodities Act was taken, vide order dated 16.2.2013 which is under challenge. 4. The ground upon which the order taking cognizance is being assailed has already been recorded under order dated 11.2.2014mentioned above. 5. On completion of investigation, when the charge sheet was submitted, cognizance of the offence punishable under Section 7 of the Essential Commodities Act was taken, vide order dated 16.2.2013 which is under challenge. 4. The ground upon which the order taking cognizance is being assailed has already been recorded under order dated 11.2.2014mentioned above. 5. It be stated that it has been held in a case of Aloke Dutta vs State of Jharkhand, (Cr.M.P.No.56 of 2012) that in view of Clause 14 of the Public Distribution System (Control) Order, 2001 of the provision of Unification Order relating to Dealer under the Public Distribution System virtually gets repealed by virtue of the said provision. 6. Clause 14 of the Public Distribution System (Control) Order, 2001 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.“ 7. Thus, it has been held that 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. 8. Going further in the matter, the provision as contained in Clause 10 of the said order needs to be taken notice of 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. 9. 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 being committed by the Public Distribution System Dealer. 10. A categorical statement has been made that the Block Supply Officer has never been authorized by the State Government. That plea in absence of any counter affidavit has to be accepted. 11. Further it be stated that in other case it has been brought to the notice of the court that authorization has been made by the State Government some times in the month of August/September, 2013 whereas this case relates to the period prior to that. Therefore, it can be held that Block Supply Officer had no authority to make search and seizure and thereby any search and seizure made by the Block Supply Officer would be quite illegal. 12. Accordingly, the case lodged on the basis of search and seizure certainly gets vitiated. 13. Under the circumstances, entire criminal proceeding of Rajmahal P.S. Case no.451 of 2012 including the order dated 16.2.2013 under which cognizance of the offence taken under Section 7 of the Essential Commodities Act is hereby quashed. 14. In the result, this application stands allowed. Application allowed.