Lalit Kishore vs The State Of Jharkhand
2023 Latest Caselaw 1678 Jhar

                                                     1                 Cr.M.P. No. 2539 of 2012


                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                Cr.M.P. No. 2539 of 2012
                Lalit Kishore                                   ... Petitioner
                                          -Versus-
            The State of Jharkhand                             ... Opposite Party
                                             -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

            For the Petitioner         : Mr. A.K. Sahani, Advocate
                                         Mr. Ashwini Kumari, Advocate
            For the State              : Mr. Santosh Kumar Shukla, A.P.P.
                                             -----

07/20.04.2023        Heard Mr. A.K. Sahani assisted by Mr. Ashwini Kumar, learned counsel

for the petitioner and Mr. Santosh Kumar Shukla, learned counsel for the

State.

2. This petition has been filed for quashing the entire criminal

proceeding including the order dated 07.02.2008 passed in Namkum P.S.

Case No.3 of 2006 (G.R. No.71 of 2006), pending in the court of the learned

Sub Divisional Judicial Magistrate, Ranchi.

3. The FIR was lodged alleging therein that on 03.01.2006 through

secret information regarding carriage of rice from one truck to another,

during the course of enquiry, it was found that the truck loaded with rice

bearing Truck No. BR 14A-0781 vide Challan No.437170 vide Circular

No.87457. It was further alleged that Godown Manager- Lalit Kishore failed

to produce any document. It was also alleged that the petitioner allowed

supply/distribution of the food articles, rice bags in absence of Supply

Inspector and thereby violated the rules, procedures giving rise to suspicion

that the petitioner has allowed removal of rice bags for the purpose of sale

in black market. It was also alleged that seizure list was prepared in

presence of two witnesses.

4. Learned counsel for the petitioner submits that the petitioner was

posted as Assistant Godown Manager of the Food Corporation of India for

the purpose of unloading, storage and delivery of the rice bags. He further

submits that in the FIR as well as in the charge-sheet, there is no material

to make out any offence under Section 7 of the Essential Commodities Act.

He submits that the petitioner is not the owner of the truck nor he was

present in the said truck at the time of seizure and therefore the allegation

of commission of offence, as alleged by the prosecution is false and

frivolous. He further submits that there is no allegation that any food article

was found shortage in the stock and in that view of the matter, the

ingredient of Essential Commodities Act is not attracted against the

petitioner. On these grounds, he submits that entire criminal prosecution is

vitiated against the petitioner and to allow the proceeding to continue, will

amount to abuse of process of law.

5. On the other hand, learned counsel for the State submits that the

learned court has rightly taken cognizance against the petitioner and there

is no illegality in the order taking cognizance. He further 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 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 there-under 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. 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.

9. The argument which has been advanced by the learned counsel

appearing on behalf of the petitioner that the District Supply Officer who

has made search and seizure has not been authorized by the State

Government to make such search and seizure and this plea has not been

controverted by the learned counsel appearing on behalf of the respondent

State.

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 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. 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.

12. In absence of any denial that the District Supply Officer has never

been authorized by the State Government, plea of the petitioner has to be

accepted that Distruct Supply Officer had no such authority to make search

and seizure and thereby any search and seizure made by the District Supply

Officer would be quite illegal. Furthermore, the case lodged on the basis of

such search and seizure certainly gets vitiated.

13. 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.

14. 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.

15. Thus, there remains no doubt that search and seizure made by the

District Supply Officer is quite illegal and on the basis of such seizure, any

prosecution laid would not be maintainable.

16. The Court further finds that order taking cognizance is not in

accordance with law as the entire order-sheet is typed whereas the word

'cognizance' is written in hand writing, which suggests that there is non-

application of judicial mind.

17. The finding of the Hon'ble Supreme Court in the case of Avtar Singh

and Another v. State of Punjab [Criminal Appeal No.1711 of 2011]

has also reiterated the law that where power is given to do certain thing in

a certain way, the thing must be done in that way or not at all. Paragraph

no.15 of the said judgment is quoted below:

"15. It is a settled law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. Reference can be made to "Dharani Sugar and Chemicals Ltd. v. Union of India and Ors." reported in (2019) 5 SCC 480."

18. In the aforesaid facts, reasons and analysis, the entire criminal

proceeding including the order dated 07.02.2008 passed in Namkum P.S.

Case No.3 of 2006 (G.R. No.71 of 2006), pending in the court of the learned

Sub Divisional Judicial Magistrate, Ranchi is quashed.

19. Accordingly, this petition is allowed and disposed of in the above

terms.

(Sanjay Kumar Dwivedi, J.) Ajay/