The main legal point established in the judgment is that the immunity and exemption from prosecution for Public Distribution System dealers under the relevant orders were not applicable, and the institution of proceedings based on illegal search and seizure was without jurisdiction.

1. Heard the counsel for the petitioners and the counsel for the State.

2. Petitioners in all these three applications are dealers of Public Distribution System and have prayed for quashing the orders taking cognizance of offence under Section 7 of the Essential Commodities Act.

3. Common ground has been adopted by the petitioners for quashing the order of cognizance. They have claimed immunity and exemption from prosecution in view of Clause 31(2) of the Bihar Trade Articles (Licence Unification) Order, 1984, being the dealer and representative of the State Government under the Public Distribution System. Similarly they have challenged, very initiation of proceeding, on the basis of search and seizure made by the informant and institution of cases as they were not authorised by the State Government under Clause 10 of the Public Distribution System (Control) Order, 2001 .

4. In Cr. Misc. No. 5063 of 2005 the order of the Chief Judicial Magistrate, Nalanda at Biharsharif, dated 23.8.2004, in Bihar PS. Case No. 23 of 2003, in Cr. Misc. No. 28259 of 2004 the order of the Subdivisional Judicial Magistrate, Buxar, dated 20.12.2002, in Dumraon P.S. Case No. 20 of 2004 and in Cr. Misc. No. 5312 of 2005 the order of the Chief Judicial Magistrate, Nawadah, dated 24.11.2004, in Shirdalla P.S. Case No. 93 of 2003 are the impugned orders.

5. For the first submission petitioners have relied on two unreported decisions of this Court.in Criminal Revision No. 330 of 1997 (Jai Kant Kumar vs. The State of Bihar) and Cr. Misc. No. 1056 of 2003 (Amar Yadav & Anr. vs. The State of Bihar) wherein it has been held that in view of Clause 31(2) of the Unification Order, Public Distribution System dealers being the agent of the Government are exempted from prosecution.

6. The State has filed counter affidavit stating that since the provisions under Clause 31(2) of the Bihar Trade Articles (Licence Unification) Order, 1984, has been amended by Public Distribution System (Control) Order, 2001 , now the petitioners are not protected by Clause 31(2) of the Unification Order, 1984. Under Public Distribution (Control) Order, 2001, no exemption has been given to the dealers of the Public Distribution System from prosecution. This order has come into effect in the year 2001 itself and even the dealers of the Public Distribution System can be prosecuted for violation of the Order under the Essential Commodities Act.

7. Though admitting this fact that under the amended Public Distribution Sys- tern (Control) Order, 2001, there is no exemption from prosecution, the counsel for the petitioners has submitted that in view of the amended provisions initiation of prosecution itself is bad and without jurisdiction. Public Distribution System (Control) Order, 2001 , came into effect on 31.08.2001. Since the amendment has been brought through Central notification it has overriding effect over all previous State orders and notifications, as provided under Clause 14 of the amended Control Order. Clause 10 of this Order specially envisages that so far power of search and seizure is concerned, it can be vested only in an authority, authorised by the State Government by notifying that authority under the State Gazette. Since there was no notification of the State Government authorising any authority to make search and seizure, institution of proceeding in all three cases is completely illegal and without jurisdiction in all three cases.

The informants were not authorised either to make search and seizure or instituted a criminal case. Alternatively it has also been argued that since previous State Order as provided under Clause 14 of the amended order became ineffective, on the date of search and seizure the Supply Inspector, the Sub-Divisional Officer and the Block Development Officer were not authorised to make search and seizure, the institution of first information report on the basis of search and seizure by the informants in all three cases is without jurisdicti