Bimal Kumar Tudu v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1245 of 2013 Bimal Kumar Tudu Versus …… Petitioner The State of Jharkhand …… Opp. Party CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Petitioner :Ms. Neha Bhardwaj, Advocate For the State : Mr. Prabhu Dayal Agrawal, Spl. P.P. 07/Dated: 01/05/2023
Legal Reasoning
Heard Ms. Neha Bhardwaj, learned counsel for the petitioner and Mr. Prabhu Dayal Agrawal, learned counsel for the State. 2. I.A. 685 of 2016 has been filed for amendment in the prayer portion of the main petition. 3. Learned counsel for the petitioner submits that during pendency of this petition chargesheet dated 31.10.2013 has been submitted under section 7 of the Essential Commodities Act and thereafter discharge petition has been filed which was rejected by order dated 15.12.2015. According to her the order has been passed in the year, 2015 itself but the said I.A. was not pressed earlier as the case was not taken up. 4. In view of above submission of the learned counsel for the petitioner and considering that I.A. is of the year, 2016 but the case was not taken and to avoid the multiplicity of the litigation, prayer made in I.A. is allowed. 5.
Decision
I.A. No. 685 of 2016 stands disposed of. Let this I.A. be treated as part of main petition. 6. This petition has been filed for quashing the entire criminal proceeding in connection with Masalia (Togra) P.S. Case No. 009 of 2013, corresponding to G.R. No. 170 of 2013, pending in the Court of learned Judicial Magistrate, Ist Class, Dumka. Chargesheet dated 31.10.2013 and order 2 dated 15.12.2015 by which discharge petition has been rejected, is also under challenge. 7. The F.I.R. has been lodged alleging therein that on the direction of S.D.O, enquiry was made and in course of enquiry several villagers disclosed that rice of Bimal Tudu, dealer has been seized by them which was being carried outside by tractor for black marketing and the driver of the tractor after unloading the rice fled away. It was further disclosed that 12.5 quintal rice was seized and kept in literacy building. The informant got the room of literacy building opened wherein 12.5 quintal rice was found there. It was further alleged that in course of enquiry it was found that Budi Hembrom gave in writing that the said rice was 12.5 quintals and marked as J.S.F.C. and the said rice was of Bimal Tudu, dealer. Thereafter the informant went to the PDS shop of the petitioner where the shop keeper was not present. In the stock there was only 12 bags of rice totaling 7 quintals but no register or paper was shown. On the basis of these allegation the F.I.R. has been lodged udner section 7 of the Essential Commodities Act.. 8. Learned counsel appearing for the petitioner submits that the petitioner lifted 18 quintals 20 kilograms of B.P.L. rice on 20.01.2013 which were duly maintained in the stock register. The petitioner distributed 11 quintals and 20 kilograms of rice to 32 card holders and the same were also maintained in the sale register and rest 7 quintals of rice were lying in the stock. She further submits that the chargesheet has been submitted and the fact remains that there is no disclosure of the fact that which order issued under section 3 of the Essential Commodities Act has been violated by the petitioner. She further submits that merely under section 7 of the Essential Commodities Act, the F.I.R. has been lodged. She submits that the even if the entire prosecution case is taken to be true, no case under section 7 of the E.C. Act is made out. She submits that the Central Government issued an order in 3 exercise of power conferred under section 3 of the Essential Commodities Act, the Public Distribution System (Control) Order, 2001 for distribution of essential commodities under the Public Distribution System. She submits that the aforesaid P.D.S. Control Order, 2001 came into force on 31.08.2001. She submits that Clause 7 of the aforesaid P.D.S. Control Order, 2001 provides for licencing and procedure for issue of licence or authorization to the fair price shops under Public Distribution System to be as per paragraph 5 of the Annexures to the said Control Order, 2001. She submits that Clause 10 of the said Control Order, 2001 provides for power of search and seizure to be exercise by an authority authorized by State Government, who shall be competent to make inspection, search and seizure of stock of essential commodities books of accounts. She submits that Clause 14 of the Control Order provides that the provisions of this order (P.D.S. Control Order, 2001) shall have effect notwithstanding anything contained to the contrary made by a State Government before the commencement of this order. She submits that without any jurisdiction the enforcement of the Control Order, 2001 which is having overriding effect over all previous State orders and notifications as provided under Clause 14 of the P.D.S. Order, 2001, the case has been registered. She submits that earlier order was superseded/repealed by the said orders with effect from 31.08.2011. She submits that till date the State of Jharkhand has not issued any order in terms of paragraph 5 of Annexure to the said Control Order, 2001. According to her there is no gazette notification of the State of Jharkhand authorizing any authority to make search and seizure. 9. On the other hand Mr. Prabhu Dayal Agrawal, learned counsel appearing for the State submits that the Dealer under the Public Distribution System are being governed by the Bihar Trade Articles (Licences Unification) Order 1984 and under that provision licences are being given to the PDS Dealer to deal with the matter relating to distribution of the commodities and 4 therefore, unless that Unification Order is repealed specifically by any subsequently order, the provision of the said Unification Order would remain in vogue and thereby FIR never warrants to be quashed. 10. The proposition which has been advanced on behalf of the State seems to be contrary to the provision as contained in clause 14 of the Public Distribution System (Control) Order, 2001 which 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.“ 11. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provision as contained in Clause 14. 12. In such situation, the provision of the Unification Order after commencement 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. 13. 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. 14. 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 5 by him 3 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.” 15. 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 is being committed by the Public Distribution System Dealer. 16. 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. 17. This proposition has also been laid down in a case of Narain Prasad @ Sri Narain Sao and others vs. State of Bihar [1998 (2) PLJR 330]. Similar issue fell for consideration before the Patna High Court in a case of Maheshwar Prasad and another vs. State of Bihar [ 2007 (2) PLJR 103] wherein it has been held that previous order relating to Public Distribution System becomes ineffective on commencement of the Public Distribution System (Control) Order, 2001. 6 18. At the same time, it has also been held that in absence of any authority in terms of clause 10 of the Public Distribution System (Control) Order, 2001 search and seizure made by a person would be quite illegal. 19. 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. 20. The Court finds that so far as order dated 15.12.2015 is concerned, there is no illegality and the learned court has rightly dismissed the petition considering that it is a summary trial case. However, in view of above facts, reasons and analysis to continue the proceeding will amount the abuse of process of law and accordingly, entire criminal proceeding in connection with Masalia (Togra) P.S. Case No. 009 of 2013, corresponding to G.R. No. 170 of 2013, pending in the Court of learned Judicial Magistrate, Ist Class, Dumka is hereby quashed. Pending I.A., if any, stands disposed. Interim order is vacated. Satyarthi/ (Sanjay Kumar Dwivedi, J.)