Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 2731 of 2013 --- Birbal Mahali, son of Late Mandal Mahali, resident of Adda, Village – Manpur, P.O. & P.S. Potka, District – East Singhbhum … … Petitioner Versus The State of Jharkhand … … Opp. Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Bibhash Kr. Sinha, Advocate For the Opp. Party : Mr. Pankaj Kumar, A.P.P. --- 07/09.02.2015 Heard Mr. Bibhash Kr. Sinha, learned counsel appearing on behalf of the petitioner and Mr. Pankaj Kumar, learned counsel appearing on behalf of the State. It appears that inspite of repeated opportunities, no counter affidavit has been filed on behalf of the State. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Potka P.S. Case No. 91 of 2010 corresponding to G. R. No. 3211 of 2010 including the order dated 18.02.2011 passed by the learned S.D.J.M., Jamshedpur, whereby and whereunder, cognizance has been taken for the offence punishable under Section 7 of the Essential Commodities Act as well as order dated 17.07.2013 passed by learned S.D.J.M., Jamshedpur whereby the application filed on behalf of the petitioner under Section 258 of the Criminal Procedure Code has been rejected. An F.I.R. was instituted by the Circle Officer, Potka on 08.12.2010 in which allegation was made that the petitioner who is a dealer under the Public Distribution Scheme and who used to get supplies of food grains for free distribution to card holders under the B.P.L. and Antodaya Scheme of the Government, had been supplied 150.51 quintals of food grains for distribution amongst the cardholders but he had sold the same in black market. It was further alleged that 3953 liters of Kerosene Oil were to be supplied amongst the cardholders but he sold the same in black market. Therefore, it was alleged that the petitioner has contravened the provisions of the Bihar Trade Articles (Unification of Licenses) Order 1984 and the Public Distribution System (Control) Order 2001 which is punishable under Section 7 of the Essential Commodities Act. The learned counsel for the petitioner has submitted that the First Information Report was instituted by the Block Supply Officer, Potka and in terms of clause 10 of the Public Distribution System (Control) Order 2001 which is with respect to search and seizure, he was not authorized by the government to conduct the search and seizure. He, therefore, submits that in absence of authorization to the Block Supply Officer, Potka, the entire prosecution against the petitioner is liable to be quashed. He has also submitted that in view of the Clause 14 of the Public Distribution System (Control) Order 2001 the Bihar Trade Articles (Unification of Licenses) Order of 1984 had automatically become redundant. In this context, he has referred to the judgment of this Court in the case of Deoki Ram v. State of Jharkhand reported in [2013 (1) JCR612(Jhr)]. The learned counsel for the State, on the other hand, has submitted that in terms of clause 10 of the Public Distribution System (Control) Order 2001, the State Government had issued the notification in which Government Officials mentioned in the said notification have been authorized to conduct and search and seizure under the Public Distribution System (Control) Order 2001. This notification, according to the learned counsel for the State, has been issued on 17.09.2013. After hearing the learned counsels for the parties, I find that the F.I.R. was instituted with the allegation of black marketing against the petitioner on 08.12.2010 by the Block Supply Officer, Potka. It has been indicated in the written report itself that verification/enquiry was made with respect to the allegations against the accused petitioner. Clause 10 of the Public Distribution System (Control) Order 2001 which is with respect to the power of search and seizure and sub-clause 1 of clause 10 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.” It, thus, appears that it has to be the State Government which has to authorize a person with respect to inspection of records or documents as may be considered by him necessary for examination. In this case, the F.I.R. has been instituted by the Block Supply Officer, Potka and he had also inspected the relevant records while coming to the conclusion that the petitioner was involved in black marketing. With respect to the search and seizure under Clause 10 of the Public Distribution System (Control) Order 2001 this Court in the case of Deoki Ram v. State of Jharkhand (Supra) has held as follows:-
“11. Now coming to other aspect of the matter, the argument has been advanced on behalf of the petitioner that the Block Supply Officer 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 controverted by the State Government.
12. In such situation, one needs to refer to Clause 10 of the said order 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 nay records or documents produced before hi. (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 veiw 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 rice shop. (3) The said authority may also search, seize or remove such books of accounts or stocks of essential commodities where such authority has reasons to believe that these have been used or will be used in contravention of the provisions of this Order. (3-A) 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.
13. 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 rceipt of a complaint of irregularities is being committed by the Public Distribution System Dealer.
14. In absence of any denial that the Block Supply Officer has never been authorized by the State Government, plea of the petitioner has to be accepted that Block Supply Officer had no such authority to make search and seizure and thereby any search and seizure made by the Block Supply Officer would be quite illegal. Furthermore, the case lodged on the basis of such search and seizure certainly gets vitiated.” As has been indicated hereinabove, the State Government inspite of repeated adjournments, chose not to file any counter affidavit to contradict the claim of the petitioner that there was no authorization on the date when the incident is alleged to have taken place in terms of clause 10 of the Public Distribution System (Control) Order 2001, rather it has been specifically submitted that the authorization by the State Government was notified on 17.09.2013 which means that admittedly on the date of occurrence, there was no authorization in terms of clause 10 of the said order. In such circumstances, therefore, the entire operation with respect to the inspection of the documents as well as with respect to the institution of the First Information Report by the Block Supply Officer, Potka, gets invalid in view of non-authorization by the State Government in terms of clause 10 of the Public Distribution System (Control) Order 2001. I, therefore, find merit in this application. This application is, accordingly, allowed and the entire criminal proceedings in connection with Potka P.S. Case No. 91 of 2010 corresponding to G. R. No. 3211 of 2010 including the order dated 18.02.2011 passed by the S.D.J.M., Jamshedpur is, hereby, quashed. (R. Mukhopadhyay, J.) Umesh/-