The main legal point established in the judgment is the requirement for authorization by the State Government for search and seizure under the Public Distribution System (Control) Order, 2001, and the inapplicability of the offense under Section 406/409 to a Dealer who becomes the owner of commodities upon payment.

By the Court.- This application has been filed for quashing of the FIR of Chainpur P.S. case No. 17 of 2012 (G.R. No. 374 of 2012) which has been instituted under Section 7 of the Essential Commodities Act against the petitioners.

2. It is the case of the prosecution that on 1.5.2012, when the Block Supply Officer. Chainpur and also Sub-Inspector of Police 1aid a raid over the business premises as well as residential portion of the house of the petitioner No.1, they found 339 bags of rice containing 179.50 quintals of rice stored, over there whereas as per entry made stock register as well as sale register, it should have been 54.59 quintals of rice. However, it on being seized were given in zimmanama to petitioner No.2.

3. Further case is that on 3.5.2012 when the Block Supply Officer came and inspected the business premises it was found that only 209 bags of rice were there which contained 104 quintals of rice only. On making verification of stock register and sale register, 49.06 quintal of rice was found in excess which had been stored for selling it in black market.

4. On such allegation, a case was registered as Chainpur P.S. case No. 17 of 2012 under Section 7 of the Essential Commodities Act and also under Sections 406, 409/34 of the Indian Penal Code against the petitioners.

5. The said F.I.R is being sought to be quashed on the ground that neither Block Supply Officer nor Sub-Inspector of Police who had made search and seizure upon which a case was lodged, had been authorized to make search and seizure in terms of Clause 10 of the Public Distribution System (Control) Order, 2001.

6. Learned counsel appearing for the petitioner submits that the Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order, 2001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 Annexe 6 to the Public Distribution System Order does prescribe that the State Governments are 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 of Jharkhand has not issued any such order under Section 3 of the Public Distribution System (Control) Order, 2001 and thereby the PDS Dealers who even indulge themselves with the illegality and irregularity in the matter of distribution of essential commodities to the beneficiaries of the scheme cannot be prosecuted. Thus, prosecution against the petitioner gets vitiated.

7. Other limb of the argument is that under the said order 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 till date has not come forward with any authorization authorizing any person to make search and seizure in terms of Clause 10 of the said order. Therefore, if any search and seizure is made by a person who has not been authorized in terms of Clause 10 of the said order. such search and seizure would be quite illegal and the prosecution based on such seizure would get vitiated and under this situation. FIR is fit to be quashed.

8. Mr. Mukhopadhyay, learned counsel 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. .

9. 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 o