Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nJharkhand High Court\nShree Kant Pal vs The State Of Jharkhand on 20 April, 2023                                             1\n\n               IN THE HIGH COURT OF JHARKHAND, RANCHI\n                                     ----\n                        Cr.M.P. No.2562 of 2012\n                                             ----\n       Shree Kant Pal, son of late Asharfi Pal, resident of Village Kushanpur Pal\n       Nagar, P.o. Sadar Kahalgaon, P.S. Sadar, Kahalgaon, District -Bhagalpur\n       (Bihar) At present residing Chandwa PO and PS Chandwa, District\n       Latehar                                                    .... Petitioner\n                                      --    Versus        --\n       The State of Jharkhand                                     .... Opposite Party\n                                             With\n                             Cr.M.P. No.1053 of 2012\n                                             ----\n       Amardeep Kumar Sahu @ Amardep Kumar, son of late Ram Khelawan\n       Saw, resident of Chandwa PO and PS Chandwa, District Latehar\n                                                                  .... Petitioner\n                                 --        Versus    --\n       1.The State of Jharkhand\n       2.Sriniwash Rai , s/o not known, BDO, Chandwa, PO and PS Chandwa,\n       District Latehar                                           .... Opposite Parties\n\n\n                                             ----\n            CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI\n                                             ---\n\n       For the Petitioners :- Mr. A.K.Kashyap, Sr.Advocate [Cr.M.P. No.2562 of 2012]\n                               Ms. Alka Kumari, Advocate [Cr.M.P. No.1053 of 2012]\n       For the State         :- Mr. Fahad Allam, Advocate [Cr.M.P. No.2562 of 2012]\n                                Mr. S.P. Jha, Advocate         [Cr.M.P.No.2562 of 2012]\n                                             ----\n\n6/20.04.2023           In both the petitions a common question of law and facts\n\n       and order taking cognizance are involved and that is why both these\n\n       petitions are heard together with consent of the parties.\n\n       2.              These petitions have been filed for quashing of the entire\n\n       criminal proceeding including the order taking cognizance dated\n\n       28.5.2012 in connection with Chandwa P.S.Case No.98 of 2010, G.R.\n\n       Case No.605 of 2010, pending in the court of learned Additional Chief\n\n       Judicial Magistrate, Latehar and S.D.J.M, Latehar in both the cases\n\n       respectively.\n                                   2\n3.           The FIR was registered alleging therein that the informant\n\nreceived telephonic message from SDO Latehar that rice of PDS was\n\nunloaded   from    truck   in   the   godown    of   one   Amardip   Kumar\n\nunauthorizedly. It is further alleged that the informant alongwith officer\n\nin charge of Chandwa Police Station enquired jointly and during course of\n\nenquiry 3488 bags food grain were found. Thereafter search and seizure\n\nlist was prepared. It is further alleged that during the course of enquiry\n\nthe informant reached to Block Supply Officer where he was informed\n\nthat on 3.11.2010 only four PDS shop keepers have been supplied of\n\nfood grain. It is further alleged that from perusal of register it was found\n\nthat 1.75 quintal in Antyodaya and 25.76 quintal rice was given to one\n\nshopkeeper Krishna Baitha through vehicle No.JH01Y-6409. Thereafter\n\nthe informant reached at the shop of Krishna Baitha and in presence of\n\nshopkeeper physical verification of the shop was done and during course\n\nof enquiry several irregularity were found and the shopkeeper did not\n\ngive satisfactory explanation of those irregularities. The shopkeeper also\n\ntold that when the foodgrain reached at his shop neither supply officer\n\nShreekant Pal nor nodal officer Satyendra Kumar Singh, Binod Kumar\n\nSingh, transporter came at the shop. It was further alleged that as per\n\nrule they are responsible for conveying the food grain to PDS at shop and\n\nto distribute the same amongst beneficiaries.\n\n4.           Mr. A.K.Kashyap, the learned Senior counsel appearing on\n\nbehalf of the petitioner in Cr.M.P. No.2562 of 2012 submits that the\n\npetitioner was Supply Officer and there is no dereliction on the part of\n\nthe petitioner as alleged in this case and in absence of any departmental\n\nproceeding for any alleged offence the criminal proceeding has been\n\nlodged against the petitioner. He further submits that in the order taking\n\ncognizance there is no mention as to what are the materials under\n\nsection 3 of the E.C.Act and which order is violated so far as this\n\npetitioner is concerned. The petitioner was busy in election duty of\n                                   3\n\nMukhia in Chandwa Block as he was appointed as Assistant Returning\n\nOfficer since 27.10.2010. He submits that the petitioner was not\n\nresponsible for door step delivery of the food grain because as per the\n\norder of D.C. Latehar the Revenue officer and Panchayat sewak were\n\nappointed as nodal officer and they have been authorized to ensure the\n\ndoor step delivery of food grains at the shop of fair price shop dealer\n\nafter receiving the same. He further submits that the case was not\n\nlodged against the nodal officer and on these grounds, he submits that\n\nthe entire criminal proceeding is bad in law.\n\n5.           Ms. Alka Kumari, the learned counsel appearing on behalf of\n\nthe petitioner in Cr.M.P. No.1053 of 2012 submits that it is clear that on\n\nperusal of the FIR there is no violation of Control Order under the\n\nEssential Commodities Act. She submits that the petitioner has no\n\nconcern with the PDS. He is neither the PDS dealer nor any bag or article\n\nrelated with the Public Distribution System has been recovered from his\n\ngodown. She further submits that the petitioner is a whole sale food\n\ngrain dealer having valid required license or certificate issued by the\n\ncompetent authority like Agriculture Produce Market Committee, Latehar.\n\nShe submits that the petitioner being the bonafide owner of the food\n\ngrains filed a revision application vide Cr. Revision No.07 of 2011 before\n\nthis Hon‟ble Court which was ordered to be released in his favour vide\n\norder dated 13.12.2011. She submits that there is no restriction on sale,\n\npurchase and transportation of food grains, like rice, wheat, maida,\n\nmahua etc. which has mechanically been seized in the present case. On\n\nthese grounds, she submits that the entire criminal proceeding may\n\nkindly be quashed.\n\n6.           Both the counsels have jointly submited that the Block\n\nDevelopment Officer has got no authority to make search and seizure.\n\nThey jointly submit that the Central Government repealed all the control\n\norders applicable to PDS Dealer with effect from 31.8.2001 when Central\n                                    4\n\nGovernment promulgated Public Distribution System (Control) Order,\n\n2001 whereby it has been directed that Public Distribution System Order\n\nis required to be issued         and further direction by the the State\n\nGovernment to issue an order under section 3 of the Essential\n\nCommodities Act regulating sale and distribution of the commodities\n\nrelating to Public Distribution System but the State Government,\n\nJharkhand has not issued any such order under Section 3 of the Public\n\nDistribution System (Control) Order, 2001. It has been jointly submitted\n\nthe State Government is required to authorize some person with the\n\npower of search and seizure in terms of Clause 10 of the said order but\n\nthe State Government has not come forward with any authorization\n\nauthorizing any person to make search and seizure in terms of Clause 10\n\nof the said order.\n\n7.            Mr. Fahad Allam and        Mr. S.P. Jha, , learned counsels\n\nappearing for the State submits that the Dealer under the Public\n\nDistribution System are being governed by the Bihar Trade Articles\n\n(Licences Unification) Order 1984 and under that provision licences are\n\nbeing given to the PDS Dealer to deal with the matter relating to\n\ndistribution of the commodities and therefore, unless that Unification\n\nOrder is repealed specifically by any subsequently order, the provision of\n\nthe said Unification Order would remain in vogue and thereby FIR never\n\nwarrants to be quashed.\n\n8.            The proposition which has been advanced on behalf of the\n\nState seems to be contrary to the provision as contained in clause 14 of\n\nthe Public Distribution System (Control) Order, 2001 which reads as\n\nunder:\n\n          "14. "Provisions of the Order to prevail over previous\n     orders of State Governments - The provisions of this order\n     shall have effect notwithstanding anything to the contrary\n     contained in any Order made by a State Government or by\n     an   officer    of   such   State   Government   before   the\n                                    5\n\n      commencement of this Order except as respects anything\n      done, or omitted to be done there-under before such\n      commencement."\n\n9.           From perusal of the provision of the aforesaid order, it does\n\nappear that all the provisions relating to Dealer under the Public\n\nDistribution System virtually get repealed by virtue of the provision as\n\ncontained in Clause 14.\n\n10.          In such situation, the provision of the Unification Order\n\nafter commencement of the Public Distribution System (Control) Order,\n\n2001 would not be workable so far it relates to the matter relating to\n\ndistribution of PDS commodities.\n\n11.          The argument which has been advanced by the learned\n\ncounsels appearing on behalf of the petitioners that the Block\n\nDevelopment Officer who has made search and seizure has not been\n\nauthorized by the State Government to make such search and seizure\n\nand this plea has not been controverter by the learned counsel appearing\n\non behalf of the respondent State.\n\n12.          In such situation, one needs to refer to clause 10 of the\n\nsaid order which reads as under:\n\n       "10. Power of search and seizure - (1) An authority\n       authorized by State Government shall be competent to\n       inspect or summon such records or documents as may be\n       considered by him 3 necessary for examination and take\n       extracts or copies of any records or documents produced\n       before him. (2) If the said authority has reasons to\n       believe on receipt of a complaint or otherwise that there\n       has been any contravention of he provisions of this Order\n       or with a view to securing compliance with this Order, he\n       may enter, inspect or search the fair price shop or any\n       premises relevant to transactions of business of the fair\n       price shop. (3) The said authority may also search, seize\n       or remove such books of accounts or stocks of essential\n       commodities where such authority has reason to believe\n                                  6\n\n      that these have been used or will be used in\n      contravention of the provisions of this Order. (3A) The\n      authority conducting search and seizure under sub-clause\n      (3) shall inform the State Government or an officer\n      authorized by it in this behalf, the details of the search\n      conducted and the stocks of essential commodities so\n      seized by them under that clause. (4) The provisions of\n      section 100 of the Code of Criminal Procedure 1973,\n      relating to search and seizure shall so far as may be,\n      apply to search and seizure under this Order."\n\n13.          From perusal of the aforesaid provision, it does appear that\n\nonly the authority authorized by the State Government would be\n\ncompetent to make search and seizure of a place on receipt of a\n\ncomplaint of irregularities is being committed by the Public Distribution\n\nSystem Dealer.\n\n14.          In absence of any denial that the Block Supply Officer has\n\nnever been authorized by the State Government, plea of the petitioner\n\nhas to be accepted that Block Supply Officer had no such authority to\n\nmake search and seizure and thereby any search and seizure made by\n\nthe Block Supply Officer would be quite illegal. Furthermore, the case\n\nlodged on the basis of such search and seizure certainly gets vitiated.\n\n15.          This proposition has also been laid down in a case of Narain\n\nPrasad @ Sri Narain Sao and others vs. State of Bihar [1998 (2) PLJR\n\n330]. Similar issue fell for consideration before the Patna High Court in a\n\ncase of Maheshwar Prasad and another vs. State of Bihar [ 2007 (2) PLJR\n\n103] wherein it has been held that previous order relating to Public\n\nDistribution System becomes ineffective on commencement of the Public\n\nDistribution System (Control) Order, 2001.\n\n16.          It has also been held that in absence of any authority in\n\nterms of clause 10 of the Public Distribution System (Control) Order, 2001\n\nsearch and seizure made by a person would be quite illegal.\n                                   7\n17.          Thus, there remains no doubt that search and seizure made\n\nby the Block Supply Officer is quite illegal and on the basis of such\n\nseizure, any prosecution laid would not be maintainable.\n\n18.          The Court further finds that order taking cognizance is not\n\nin accordance with law as the entire order sheet is written in another\n\nhand writing whereas the word „cognizance‟ is written in another hand\n\nwriting which suggest that there is non-application of judicial mind.\n\n19.          The finding of the Hon‟ble Supreme Court in the case of\n\n"Avtar Singh and Another v. State of Punjab" [Criminal Appeal No.1711 of\n\n2011] has also reiterated the law that where power is given to do certain\n\nthing in a certain way, the thing must be done in that way or not at all.\n\nParagraph no.15 of the said judgment is quoted below:\n\n             "15. It is a settled law that where a power is given to\n       do a certain thing in a certain way, the thing must be done\n       in that way or not at all. Other methods are necessarily\n       forbidden. Reference can be made to "Dharani Sugar and\n       Chemicals Ltd. v. Union of India and Ors." reported in (2019)\n       5 SCC 480.\n\n20.          In the aforesaid facts and circumstances, reasons and\n\nanalysis, the entire criminal proceeding including the order taking\n\ncognizance dated 28.5.2012 in connection with Chandwa P.S.Case No.98\n\nof 2010, G.R. Case No.605 of 2010 is quashed, pending in the court of\n\nlearned Additional Chief Judicial Magistrate, Latehar and S.D.J.M, Latehar\n\nin both the cases respectively.\n\n21.          Cr.M.P. No.2562 of 2012 and Cr.M.P. No.1053 of 2012 stand\n\nallowed and disposed of in the above terms.\n\n22.          Pending petition if any also stands disposed of.\n\n\n\n                                         (Sanjay Kumar Dwivedi, J.)\n\nSI/;