Unauthorized search and seizure by an authority not authorized by the State Government under the Public Distribution System (Control) Order, 2001, vitiates the institution of the FIR and criminal proceeding.

JUDGMENT :

1. Heard Mr. Nilesh Kumar, the learned counsel for the petitioner and Mr. Jitendra Pandey, the learned counsel appearing on behalf of the State.

2. This petition has been filed for quashing of entire criminal proceeding including order dated 08.08.2007 by which cognizance has been taken sections 420, 120(b) of the I.P.C. and under section 2(b) 5(1) of Bihar Commodities Act and under section 7 of Essential Commodities Act against the petitioner in connection with Pratapur P.S. Case No. 25 of 2007, corresponding to G.R. No. 388 of 2007, pending in the Court of learned Sub-divisional Judicial Magistrate, Chatra.

3. The F.I.R was lodged by Supply Inspector alleging therein that on 17.05.2007 at about 2.30 P.M. he got information about the black marketing of rice and thereafter a team was constituted and raid was conducted in the house of Ram Kumar Sao wherein 195 bags of rice and 32 bags of wheat in which 23 bags, 13 drums of kerosene oil and other articles were found and accordingly the same has been seized. It is further alleged that a raid was also conducted in the house of Nawal Pd. Sao wherein illegal storages of wheat in 29 bags and 17 bags was found, which was seized. It is further alleged that a raid was also conducted in the house of Vijay Kumar Sao-petitioner and 86 bags of rice illegally stored, was found and subsequently seized. Further a raid was also made in the house of Bhola Yadav wherein some articles have been seized.

4. Mr. Nilesh Kumar, the learned counsel appearing on behalf of the petitioner submits that after the investigation charge sheet was submitted under sections 420, 120(b) of the I.P.C. and under section 2(b) 5(1) of Bihar Commodities Act and under section 7 of Essential Commodities Act and cognizance was taken by the learned Chief Judicial Magistrate, Chatra under the aforesaid sections vide order dated 08.08.2007.

5. Mr. Jitendra Pandey, the learned counsel appearing on behalf of the 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 sections 420, 120(b) of the I.P.C. and under section 2(b) 5(1) of Bihar Commodities Act and under section 7 of Essential Commodities Act, 1955. The subject matter of institution of the case is rice which is an article to be distributed under the Public Distribution System and which has been mentioned in paragraph 10 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 Order. Admittedly, the Supply Inspector who had instituted the FIR had never been authorized by the State Government. Learned counsel for the petitioner in su