Unauthorized search and seizure by an unauthorised authority can vitiate the institution of a criminal proceeding.

JUDGMENT :

1. Heard Mr. Shankar Lal Agarwal, the learned counsel for the petitioners and Mr. Rajneesh Vardhan, the learned counsel appearing on behalf of the respondent State.

2. This petition has been filed for quashing the order dated 30.08.2017 passed in Criminal Revision No.299 of 2015 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur whereby the order passed by the learned Sub Divisional Judicial Magistrate, Jamshedpur dated 03.10.2015 in connection with G.R.Case No.2419 of 2013, corresponding to Telco/Govindpur P.S.Case No.278/2013 dated 7.7.2013 has been affirmed.

3. The F.I.R was lodged by Supply Inspector on 07.07.2013 alleging therein that on 07.07.2013 he had inspected Tempo bearing registration No.JH-05Z/1907 loaded with 180 litres of kerosene oil. The driver Amarjeet Singh disclosed that Jeetendra Kumar the petitioner is the owner of this kerosene oil and on being asked to produce the documents relating to kerosene oil the petitioner could not produce any paper regarding the kerosene oil loaded on the said Tempo. It is alleged that business and transportation of kerosene oil is prohibited and it can be cone only on a license. He seized the kerosene oil on the ground of violation of Bihar Trade Articles (Licences Unification) Order, 1984 which is punishable u/s 7 of Essential Commodities Act, 1955.

4. Mr. Agarwal, the learned counsel appearing on behalf of the petitioner submits that after the investigation charge sheet was submitted under section 7 of Essential Commodities Act, 1955 and cognizance was taken by the learned Sub Divisional Judicial Magistrate, Jamshedpur u/s 7 of Essential Commodities Act, 1955. The petitioner has filed the discharge petition before the Sub Divisional Judicial Magistrate, Jamshedpur which was rejected by order dated 03.10.2015 and the said order was challenged before the learned Sessions Judge, East Singhbhum, at Jamshedpur in Criminal Revision No.299 of 2015 which was also rejected and the order of the learned trial court was affirmed. He submits that the petitioner is the owner of the Tempo bearing No.JH-05Z/1907.

5. Mr. Rajneesh Vardhan, the learned counsel appearing on behalf of the respondent State submits that in terms of Clause 2 c of the Act an authority means an officer not below the rank of Inspector can conduct search and seizure and since the informant being the Supply Inspector, he is competent to conduct the search and seizure.

6. The criminal proceeding which is under challenge in the present application is with respect to the Section 7 of the Essential Commodities Act. The subject matter of institution of the case is blue kerosene oil which is an article to be distributed under the Public Distribution System and which has been mentioned in paragraph 13 of the counter affidavit. The public distribution system is guided by the Public Distribution System (Control) Order, 2001. Clause 6 of the said order deals with distribution and the explanation to Clause 6 deals with ‘diversion’ which means “unauthorised movement or delivery of essential commodities released from central godowns, but not reaching the intended beneficiaries under the public distribution system”. While referring to Clause 6 of the Order it has been submitted that at best it can be said a case of diversion at the time of distribution. Since the criminal proceeding come under the purview of Public Distribution System (Control) Order, 2001 reference has been made to Clause 10 of the said order which relates to power of search and seizure. Clause 2(c) defines an authority which means any authority not below the rank of Inspector under the State Government dealing with food and civil supply. Clause 10 envisages that an authority authorized by the State Government shall be competent to inspect or summon records or documents and shall conduct search and seizure. Therefore, an authority defined under Clause 2(c) of the Order has to be authorized by the State Government in terms of Clause 10 of the Ord