1. Shailesh Kr. Sinha,J. The prayer of the petitioner is to quash the entire proceeding spending in the court of the Sub-Divisional Judicial Magistrate, Sasaram forthe offences under section 7 of the Essential Commodities Act arising out ofAkorhi Gola P.S. Case No.45/2005 (Tr. No.1920/2005), including the seizure of 1800 liters of diesel by the Assistant Sub-Inspector of Police, Akorhi Gola Police Station made on 29th of July, 2005.
2. It is submitted on behalf of the petitioner that the searchand seizure was made by the A.S.I., Akorhi Gola Police Station, who wasnot authorized under Clause 12 of the Bihar Motor Spirit and High SpeedDiesel Oil Dealers Licensing Order, 1966 (hereinafter referred to as `the1966 Order'). According to him, only the persons mentioned in the saidclause are empowered to make the search and seizure and submit the report,which may be the foundation of the prosecution, if any.
3. Learned counsel appearing for the State, on the other hand, submits that on the basis of the aforesaid search and seizure, the A.S.I. submitted the report and thereafter the case was registered, investigation made and having found the allegations substantiated during investigation submitted the charge sheet against the petitioner and thereafter cognizance taken and the same has been pending for disposal. However, further proceedings of the aforesaid case have been stayed by this Court as per its order dated 10th of April, 2007.
4. The only question, which has been raised on behalf of the petitioner, is that the very foundation of the prosecution is the report of the Assistant Sub-Inspector of Police, who searched and seized the premises of, the petitioner, but he was not competent in law to make such search and seizure in view of Clause 12 of the 1966 Order and accordingly the entire prosecution must fail. It is relevant to quote Clause 12 of the 1966 Order, which runs as follows:
"12. Powers of entry, inspection, search, seizure etc.(1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer, In charge Tire Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub divisional Magistrate, Magistrate, Superintendent of Police, Deputy Superintendent of Police, other Police Officer not below the rank of Deputy Superintendent of Police or any other person authorized in this behalf by the State Government, viz., with such assistance as he may think fit;
(a) require the owner, occupier or any other person incharge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order or of conditions of any licence issued thereunder has been is being or is about to be committed to produce any books of accounts or other documents, showing transaction relating to such contraventions;
(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order or of the conditions of any licence issued thereunder has been, is being or is about to be committed;
(c) take or cause to be taken, extract from or copies of any documents, showing transaction relating to such contravention which are produced before him;
(d) search, seize and remove stocks of motor spirit or high speed diesel oil with containers and the animals, vehicles or other conveyances used in carrying the said motor spirit or high speed diesel oil in contravention of the provisions of this Order, or of the conditions of the licence issued thereunder and thereafter, take or authorize the taking of all measures necessary for securing the production of stocks of vanaspati and animals, vehicles or vessels or other conveyances so seized before a magistrate and for their safe custody pending such production.
(2) The provisions of section [102 and 103 of the Code of Criminal Procedure, 1898 (Act V of 1898) relating to search and seizure shall, so far as may be, apply to searches and seizure made and to the articles or things seized under this clause."
5. On the other hand, learned counsel for the State submits that since the malpractices were going on, therefore, in the public interest, A.S.I. made the search and seizure of the diesel in question and, accordingly, the case registered against the petitioner must proceed and this writ petition deserves to be dismissed.
6. Considering the rival submissions of the parties, it is not in dispute that in the aforesaid Clause 12 of the Order, 1966, the persons mentioned in the said Order are only competent to make the search and seizure and submit the report for the prosecution. In this case admittedly, the search and seizure was made by the A.S.I., who was not authorized. The averment in this regard made in paragraph 12 of the writ petition has not been controverted. The decision relied upon by the learned counsel for the petitioner in the case of Narayan Prasad Sultania v. State of Bihar, reported in 2007(1) BCCR 10, supports the case of the petitioner.
7. In view of the aforesaid discussions and the law on the question, search and seizure made by the informant of Akorhi Gola P.S. Case No.45/2005 is illegal as he was not competent and consequently, the report submitted by him could not be the basis for prosecution. Accordingly, aforesaid Akorhi Gola P.S. Case No.45/2005 along with further proceedings thereto is quashed. However, it is made clear that quashing of the aforesaid case shall not preclude the competent authority under the Essential Commodities Act/the 1966 Order to take appropriate action in the matter permissible in law.
8. In the result, the writ application is allowed.
9. Let a copy of this judgment be communicated to the court below i.e., the Chief Judicial Magistrate, Rohtas at Sasaram in connection with Akorhi Gola P.S. Case No.45/2005 (Tr. No.1920/2005) through fax on the cost being deposited by the petitioner.