1.Guddi Devi, wife of Moti Saw 2.Moti Saw, son of late Kasi Saw Both v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Cr.M.P. No. 516 of 2014 ---- 1.Guddi Devi, wife of Moti Saw 2.Moti Saw, son of late Kasi Saw Both are resident of village Tahle, P.O. and P.S. Chiniya, District Garhwa .... Petitioners -- Versus -- The State of Jharkhand .... Opposite Parties ----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State :- :- --- Mr. A.K.Kashyap, Senior Advocate Mr. Fahad Allam, Advocate ---- 8/24.04.2023 Heard Mr. A.K.Kashyap, the learned Senior counsel for the petitioner and Mr. Fahad Allam, the learned counsel for the respondent State. 2. This petition has been filed for quashing of the entire criminal proceeding including the order dated 15.07.2013 passed by the learned Additional Chief Judicial Magistrate, Garhwa in connection with Chiniya P.S.Case No.25 of 2012, corresponding to G.R.Case No.2043 of 2012, pending in the court of leraned Additional Chief Judicial Magistrate, Garhwa. 3. The case has been lodged alleging therein that on 31.10.12 at about 2.30 p.m near Chiniya Thana Chowk a tractor with rice was found by the police. When the enquiry was made from the driver then he did not give the satisfactory answer, thereafter driver with the tractor was brought in the premises of police station. There was 87 quintals of rice on alleged tractor. Therefore it was found in investigation that petitioner no.1 in the month of October, 2012 has lifted 69.30 quintals of rice which was being taken by petitioner no.2 for making profit. Thereafter FIR was lodged against the petitioners under section 7 of the E.C.Act. 4. Mr. Kashyap, the learned Senior counsel appearing for the petitioners submits that the petitioner no.1 has distributed entire ration and no case under section 7 of the Essential Commodities Act has been made out and petitioner no.2 is her husband who is implicated in this 2 case merely because he is husband of the petitioner no.1. He submits that the petitioner no.1 has not sold the rice in open market and the same has been properly distributed to the concerned card holders. He submits that there is nothing in the FIR to show as to what provision of section 3 of the Essential Commodities Act has been violated and to prosecute the petitioners under section 7 of the E.C.Act. He further submits that in view of Public Distribution System (Control) Order, 2001 the case has been registered by the Supply Inspector in absence of any notification by the State Government as per Clause 10 of the said Order. He further submits that Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order, 2001 whereby Annexure-6 to the Public Distribution System (Control) Order, 2001 prescribes that State Government to issue an order under section 3 of the Essential Commodities Act regulating sale and distribution of the commodities relating to Public Distribution System but the State Government, Jharkhand has not issued any such order under Section 3 of the Public Distribution System (Control) Order, 2001 and thereby the PDS Dealers who even indulge themselves with the illegality and irregularity in the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted and in that event, case of the person other than PDS Dealer stands on better footing. Thus, prosecution against the petitioners gets vitiated. Under the said order the State Government is required to authorize some person with the power of search and seizure in terms of Clause 10 of the said order but the State Government till that time has not come forward with any authorization authorizing any person to make search and seizure in terms of Clause 10 of the said order. In that view of the matter search and seizure is bad in law. 5. Mr. Allam, the learned counsel appearing for the respondent 3 State 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 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. 6. 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.“ 7. 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. 8. On 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. 9. Accordingly the Unification Order after commencement of Public Distribution System (Control) Order, 2001 could not be workable so far it relates to the matter of distribution of PDS commodities. 10. 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 3 necessary for examination and take extracts or copies of any 4 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. 11. Looking into the above provision it is crystal clear 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. 12. In absence of any denial that the Supply Officer has never been authorized by the State Government, the contention of the petitioners is required to be accepted that Supply Officer has no authority for the same and thereby any search and seizure made by such officer is quite illegal. 13. In view of the above reasons and analysis the entire criminal proceeding in connection with Chiniya P.S.Case No.25 of 2012, corresponding to G.R.Case No.2043 of 2012, pending in the court of learned Additional Chief Judicial Magistrate, Garhwa is quashed. 14. The Court finds that order taking cognizance is also passed without applying judicial mind as the word ‘cognizance’ and the ‘E.C.Act’ have been filled up in the blank space. 15.
Decision
Cr.M.P. No.516 of 2014 stands disposed of. ( Sanjay Kumar Dwivedi, J.) SI/