Shree Kant Pal vs The State Of Jharkhand
2023 Latest Caselaw 1679 Jhar

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No.2562 of 2012

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Shree Kant Pal, son of late Asharfi Pal, resident of Village Kushanpur Pal Nagar, P.o. Sadar Kahalgaon, P.S. Sadar, Kahalgaon, District -Bhagalpur (Bihar) At present residing Chandwa PO and PS Chandwa, District Latehar .... Petitioner

-- Versus --

       The State of Jharkhand                                     .... Opposite Party
                                             With
                             Cr.M.P. No.1053 of 2012
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Amardeep Kumar Sahu @ Amardep Kumar, son of late Ram Khelawan Saw, resident of Chandwa PO and PS Chandwa, District Latehar .... Petitioner

-- Versus --

1.The State of Jharkhand

2.Sriniwash Rai , s/o not known, BDO, Chandwa, PO and PS Chandwa, District Latehar .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. A.K.Kashyap, Sr.Advocate [Cr.M.P. No.2562 of 2012] Ms. Alka Kumari, Advocate [Cr.M.P. No.1053 of 2012] For the State :- Mr. Fahad Allam, Advocate [Cr.M.P. No.2562 of 2012] Mr. S.P. Jha, Advocate [Cr.M.P.No.2562 of 2012]

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6/20.04.2023 In both the petitions a common question of law and facts

and order taking cognizance are involved and that is why both these

petitions are heard together with consent of the parties.

2. These petitions have been filed for quashing of the entire

criminal proceeding including the order taking cognizance dated

28.5.2012 in connection with Chandwa P.S.Case No.98 of 2010, G.R.

Case No.605 of 2010, pending in the court of learned Additional Chief

Judicial Magistrate, Latehar and S.D.J.M, Latehar in both the cases

respectively.

3. The FIR was registered alleging therein that the informant

received telephonic message from SDO Latehar that rice of PDS was

unloaded from truck in the godown of one Amardip Kumar

unauthorizedly. It is further alleged that the informant alongwith officer

in charge of Chandwa Police Station enquired jointly and during course of

enquiry 3488 bags food grain were found. Thereafter search and seizure

list was prepared. It is further alleged that during the course of enquiry

the informant reached to Block Supply Officer where he was informed

that on 3.11.2010 only four PDS shop keepers have been supplied of

food grain. It is further alleged that from perusal of register it was found

that 1.75 quintal in Antyodaya and 25.76 quintal rice was given to one

shopkeeper Krishna Baitha through vehicle No.JH01Y-6409. Thereafter

the informant reached at the shop of Krishna Baitha and in presence of

shopkeeper physical verification of the shop was done and during course

of enquiry several irregularity were found and the shopkeeper did not

give satisfactory explanation of those irregularities. The shopkeeper also

told that when the foodgrain reached at his shop neither supply officer

Shreekant Pal nor nodal officer Satyendra Kumar Singh, Binod Kumar

Singh, transporter came at the shop. It was further alleged that as per

rule they are responsible for conveying the food grain to PDS at shop and

to distribute the same amongst beneficiaries.

4. Mr. A.K.Kashyap, the learned Senior counsel appearing on

behalf of the petitioner in Cr.M.P. No.2562 of 2012 submits that the

petitioner was Supply Officer and there is no dereliction on the part of

the petitioner as alleged in this case and in absence of any departmental

proceeding for any alleged offence the criminal proceeding has been

lodged against the petitioner. He further submits that in the order taking

cognizance there is no mention as to what are the materials under

section 3 of the E.C.Act and which order is violated so far as this

petitioner is concerned. The petitioner was busy in election duty of

Mukhia in Chandwa Block as he was appointed as Assistant Returning

Officer since 27.10.2010. He submits that the petitioner was not

responsible for door step delivery of the food grain because as per the

order of D.C. Latehar the Revenue officer and Panchayat sewak were

appointed as nodal officer and they have been authorized to ensure the

door step delivery of food grains at the shop of fair price shop dealer

after receiving the same. He further submits that the case was not

lodged against the nodal officer and on these grounds, he submits that

the entire criminal proceeding is bad in law.

5. Ms. Alka Kumari, the learned counsel appearing on behalf of

the petitioner in Cr.M.P. No.1053 of 2012 submits that it is clear that on

perusal of the FIR there is no violation of Control Order under the

Essential Commodities Act. She submits that the petitioner has no

concern with the PDS. He is neither the PDS dealer nor any bag or article

related with the Public Distribution System has been recovered from his

godown. She further submits that the petitioner is a whole sale food

grain dealer having valid required license or certificate issued by the

competent authority like Agriculture Produce Market Committee, Latehar.

She submits that the petitioner being the bonafide owner of the food

grains filed a revision application vide Cr. Revision No.07 of 2011 before

this Hon‟ble Court which was ordered to be released in his favour vide

order dated 13.12.2011. She submits that there is no restriction on sale,

purchase and transportation of food grains, like rice, wheat, maida,

mahua etc. which has mechanically been seized in the present case. On

these grounds, she submits that the entire criminal proceeding may

kindly be quashed.

6. Both the counsels have jointly submited that the Block

Development Officer has got no authority to make search and seizure.

They jointly submit that the 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 it has been directed that Public Distribution System Order

is required to be issued and further direction by the the 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. It has been jointly submitted

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 has not come forward with any authorization

authorizing any person to make search and seizure in terms of Clause 10

of the said order.

7. Mr. Fahad Allam and Mr. S.P. Jha, , learned counsels

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 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.

8. 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."

9. 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.

10. 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.

11. The argument which has been advanced by the learned

counsels appearing on behalf of the petitioners that the Block

Development 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 controverter by the learned counsel appearing

on behalf of the respondent State.

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 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."

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 receipt 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.

15. 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.

16. 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.

17. 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.

18. The Court further finds that order taking cognizance is not

in accordance with law as the entire order sheet is written in another

hand writing whereas the word „cognizance‟ is written in another hand

writing which suggest that there is non-application of judicial mind.

19. 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.

20. In the aforesaid facts and circumstances, reasons and

analysis, the entire criminal proceeding including the order taking

cognizance dated 28.5.2012 in connection with Chandwa P.S.Case No.98

of 2010, G.R. Case No.605 of 2010 is quashed, pending in the court of

learned Additional Chief Judicial Magistrate, Latehar and S.D.J.M, Latehar

in both the cases respectively.

21. Cr.M.P. No.2562 of 2012 and Cr.M.P. No.1053 of 2012 stand

allowed and disposed of in the above terms.

22. Pending petition if any also stands disposed of.

(Sanjay Kumar Dwivedi, J.)

SI/;