Full Judgment
Loknath Prasad, J.
1. This is an application under Section 482 of the code of Criminal Procedure for quashing the order of cognizance and the entire criminal prosecution relates to Sadar P.S. case No. 306/91 pending before the Special Judge, E.C. Act Hazaribagh.
2. The fact, in short, for the purpose of this application is that the petitioner is a dealer of Fertiliser and his business premises was initially inspected by Sri S.K. Rahtey, an IAS officer on training along with Shri William Kiru, Executive Magistrate on 3.9.91 and found shortage of fertilisers of different brand that what was mentioned in the Stock Register and some others irregularities were also detected, when the search and seizure of the fertilizer stock was made. Subsequently the matter was entrusted to Blook Agricultural Officer who on the basis of earlier search and seizure submitted a written report to the police. On that basis this case was instituted for violation of Fertilizer (Control) Order, 1985. The police after investigation submitted charge-sheet as against the petitioner-dealer for violation of the aforesaid provision of the fertilizer (Control) Order, 1985 punishment under Section 7 of the Essential Commodities Act because on that basis the Special Judge, E.C. Act took cognizance of the offence against the petitioner.
3. Learned Counsel for the petitioner at the very outset challenged that prosecution of the petitioner and prayed for quashing the entire prosecution mainly on the ground that the search and seizure was made by incompetent authorities and admittedly a probationer I.A.S. Officer alongwith Executive Magistrate made the search and seizure of the business premises of the petitioner on 3.9.91 and they detected irregularities and shortage of stock but the said probationery IAS officer and Executive Magistrate are not competent to proceed in the matter to make search and seizure in view of the provision of Clause 27 and 28 of the Fertilizer (Control) Order, 1985.
4. Admittedly the Probationer I.A.S officer and Executive Magistrate were not declared as Inspector under the Order and no notification was issued empowering them as Inspector. Consequently they have no right to make search and seizure and inspection of the business premises of the petitioner dealing in fertilizer under Clause 28. Admittedly Clause 28 authorises on Inspector to make search , seizure and inspection of the premises of the fertilizer-dealer and if the basis of the inspection, search and seizure is patently and inherently illegal, then the entire prosecution will not be maintainable and will be a misuse of the process of the court.
5. Admittedly Clause 27 of the Act prescribes the competent authorities and they have been declared as Inspectors. Consequently, only the Inspectors declared under Section 27 are competent to make inspection, search and seizure under the Fertilizer (Control) Order, 1985 under Section 28. In the instant case, the search, seizure and inspection initially was made by an IAS probationer officer alongwith Executive Magistrate and they are certainly not competent officer and they had not been declared as Inspector. In that view of the matter, the search and seizure by incompetent authority completely demolished the prosecution case on that basis and on the basis of such illegal search and seizure, prosecution will not proceed and it will amount to misuse of the process of the court.
6. Similar view was also taken by a Bench of this Court reported in 1990 (1) PLJR page
7. For the reasons mentioned above, this application is allowed and the, order of cognizance and the entire criminal prosecution relates to Sadar P.S. Case No. 306 of 1991 date. 3.9.91 pending before the Special Judge, E.C. Act. Hazaribagh, is hereby quashed.