JUDGMENT :

DEBANGSU BASAK, J.

1. Order no. 4 dated November 25, 2022 passed by the learned Sessions Judge, In-Charge, Alipore granting anticipatory bail to the opposite party is under challenge in the present application.

2. Learned Advocate appearing for the State submits that, the impugned order suffers from perversity. He refers to the impugned order. He submits that, the principal ground for grant of the anticipatory bail is that, there was an alleged violation of the provisions of the search and seizure guided under the West Bengal Public Distribution (Maintenance and Control) Order, 2013. According to the learned Judge, the similar situation, the Bombay High Court in Laxmikant Sarda vs. State of Maharashtra and Another, 2002 Cri. L.J. 1040 granted anticipatory bail to an accused.

3. Learned Advocate appearing for the State submits that, the opposite party claimed himself to be the owner of the rice seized. The opposite party applied before the jurisdictional Magistrate for the release of the seized rice on the strength of invoice. Learned jurisdictional Court wanted a report from the police which was submitted stating that the invoice was antedated.

4. Learned Advocate appearing for the State draws the attention of the Court to the materials in the case diary and submits that, the provisions of the Control Order of 2013 were adhered to while seizing 16,000 kgs of rice from the vehicle belonging to the petitioner. He submits that, the rice was sent for examination and that, the analytical report states that, the rice belonged to the Public Distribution System.

5. Learned Advocate appearing for the State submits that, the petitioner was found in possession of 16,000 kgs of rice meant for the Public Distribution System. The petitioner did not possess any licence under the Public Distribution System to be in legitimate possession of such rice. Consequently, the learned Judge overlooked such essential facts in granting the impugned order.

6. Referring to the judgment of the Bombay High Court which was relied upon by the learned Judge in granting the order of anticipatory bail, the learned Advocate appearing for the State submits that, the ratio therein is not applicable to the facts and circumstances of the present case. The provisions of the Kerosene Control Order which were noted in such judgment are not pari materia with the Control Order of 2013 of the State of West Bengal.

7. Learned Advocate appearing for the opposite party submits that, the police did not issue any notice under Section 41A of the Code of Criminal Procedure. He submits that, the provisions of the Control Order of 2013 were not adhered to while conducting the search and seizure. Therefore, according to him, no interference is called for with the impugned order.

8. In a search and seizure effected 16,000 kgs of rice were seized by the police. Seizure was made from the vehicle owned by the opposite party. Private opposite party applied before the jurisdictional Court claiming ownership of the seized 16,000 kgs of rice on the basis of documents he produced before the jurisdictional Court.

9. Therefore, at this stage, it cannot be doubted that the opposite party was found in possession of the 16,000 kgs of rice seized and that, he claims ownership in respect thereof.

10. Samples of rice seized were sent for analysis and the reports states that, the rice belong to the Public Distribution System. It is not the case of the private opposite party that he possesses any licence under the Public Distribution System to be in legitimate possession of 16,000 kgs of rice belonging to the Public Distribution System.

11. The Bombay High Court in Laxmikant Sarda (supra) considered the provisions of the Essential Commodities Act and the Kerosene Control Order.

12. The search and seizure herein is governed by the Control Order of 2013. Relevant portion of the control order of 2013 is as follows:

“23. Power to enter and inspect premises and to require information, accounts, etc. with a vi