Allowed

Lalit Kishore v. State of Jharkhand

Jharkhand HC20 Apr 2023Cr.M.P./2539/2012

Case brief

AI extract

What is this about?

This single-judge bench quashed criminal proceedings against the petitioner, an Assistant Godown Manager, citing illegal search and seizure by an unauthorised officer and procedural impropriety in the cognizance order. The court held that prior PDS orders were superseded by the 2001 Control Order, which mandates state authorisation for searches.

What did the court decide?

The entire criminal proceeding and the order dated 07.02.2008 in Namkum P.S. Case No.3 of 2006 were quashed.

Lalit Kishore Vs State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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Cr.M.P. No. 2539 of 2012

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 2539 of 2012

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Lalit Kishore … Petitioner

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-Versus-

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The State of Jharkhand … Opposite Party

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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

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

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

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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.

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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.

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Learned counsel for the petitioner submits that the petitioner was

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Cr.M.P. No. 2539 of 2012

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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.

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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.

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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:

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Cr.M.P. No. 2539 of 2012

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“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. ”

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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.

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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.

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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.

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In such situation, one needs to refer to clause 10 of the said order which reads as under:

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“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

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Cr.M.P. No. 2539 of 2012

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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. ”

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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.

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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.

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This proposition has also been laid down in a case of Narain Prasad

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@ 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.

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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.

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Cr.M.P. No. 2539 of 2012

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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.

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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 nonapplication of judicial mind.

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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]

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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:

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“ 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. ”

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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.

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

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(Sanjay Kumar Dwivedi, J.)

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Ajay/

Lalit Kishore v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Lalit Kishore v. State of Jharkhand

Case brief

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