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2023 DIGILAW 121 (JHR)

Raju Prasad Agarwal v. State of Jharkhand

2023-02-03

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant revision application is directed against the judgment dated 07.12.2009, passed by learned Sessions Judge, Lohardaga, whereby the Cr. Appeal No. 26 of 2009, preferred by the petitioner has been dismissed with modification and the judgment of conviction and order of sentence dated 13.08.2009 in G.R. No. 282 of 2003, corresponding to T.R. No. 128 of 2009, passed by the learned S.D.J.M., Lohardaga, whereby the petitioner was convicted and sentenced to undergo simple imprisonment for two years under Section 7 of the Essential Commodities Act with a fine of Rs.300/- and in default of fine further to undergo SI for 10 days. However, while dismissing the appeal, the learned appellate court modified the sentence to the extent that petitioner was sentenced to undergo SI for six months and fine of Rs.1,000/- under Section 7 of the E.C. Act and in default of payment of fine petitioner shall further to undergo SI for 15 days. 3. The prosecution case in brief is that on 24.08.2003 at 6 P.M. after receiving a secret information, Supply Inspector, Lohardaga with the police personnel reached the grocery shop of the petitioner. During the course of search 414 liters of blue kerosene oil recovered which was allegedly kept for the purpose of black marketing and on demand, no document was alleged to be produced; thereafter, the material was seized and case was instituted under Section 7 of the Essential Commodities Act as against the petitioner. 4. Learned counsel for the petitioner submits that the basic ingredients of section 7 of the E.C. Act is missing as no control order issued under Section 3 of the E.C. Act has been alleged to be violated by the petitioner which is only the basic ingredient for the initiation of prosecution under Section 7 of the Act. Further, in absence of allegation of violation of any applicable control order conviction and/or initiation of prosecution under Section 7 of the E.C. Act is illegal. Further, seizure of kerosene oil from the shop of petitioner has not been supported by the seizure list witness and none of the independent witness including the seizure list witness has supported the case of prosecution. Further, seizure of kerosene oil from the shop of petitioner has not been supported by the seizure list witness and none of the independent witness including the seizure list witness has supported the case of prosecution. Moreover, the seizure list is itself defective and not made in accordance with law as it appears from the judgments that the alleged seizure list does not bear the signature of the petitioner. 5. Learned counsel for the State supported the judgment and submits that there is no error in the findings given by the Courts below; as such, the conviction cannot be set aside. 6. Having heard learned counsel for the parties and after going through the impugned judgments including the lower courts records, I find that the FIR was instituted with the allegation of black marketing against the petitioner on 24.08.2003 by the Supply Inspector, Lohardaga. It has been indicated in the written report itself that verification/enquiry was made with respect to the allegations against the accused petitioner. From perusal of the record, I find that all the witnesses examined by the prosecution have turned hostile and have not supported the case of prosecution except P.W.1 who is the informant of the case and part of the raiding party. 7. Further, it transpires from the record that the Supply Inspector 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 contradicted by the State Government. Reference in this regard may be made to clause 10 of the Public Distribution System (Control) Order, 2001 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 the 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.” From bare perusal of the aforementioned provision it emerges that only the authority authorized by the State Government would be competent to conduct a search and seizure of a location upon receiving a complaint that the Public Distribution system Dealer is partaking in irregularities and in the absence of any proof that the State Government has ever authorized the Supply Inspector; the argument of the petitioner that the Supply Inspector lacked this authority to conduct search and seizure and that any such search and seizure conducted by the Supply Inspector would be completely illegal, is accepted. Moreover, the case brought forth as a result of such a search and seizure is undoubtedly gets vitiated. This proposition has also been laid down in a case of Deoki Ram vs. State of Jharkhand reported in 2019 (1) JCR 612 and Birbal Mahali vs. State of Jharkhand reported in (2015) SCC Online Jhar 778. 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. 8. Taking into account all the facts and circumstances of the case, in my opinion the present revision application requires interference. Consequently, the judgment dated 07.12.2009, passed by learned appellate court and also the judgment of conviction & order of sentence dated 13.08.2009, passed by learned trial court, is hereby, quashed and set aside. 9. As a result, the instant application stands allowed. The petitioner shall be discharged from the liability of his bail bond. 10. Let the copy of this order be communicated to the court below. 11. 9. As a result, the instant application stands allowed. The petitioner shall be discharged from the liability of his bail bond. 10. Let the copy of this order be communicated to the court below. 11. Let the lower court records be sent to the court concerned forthwith.