The provisions of the Public Distribution System (Control) Order, 2001 prevail over previous orders of State Governments, and unauthorized search and seizure is illegal.

JUDGMENT :

Heard Mr. Rajeeva Sharma, learned senior counsel appearing for the petitioner and Mr. Pankaj Kumar, learned P.P. for the State.

2. This petition has been filed for quashing of the entire criminal proceedings and the First Information Report, in connection with Pakur (Muffasil) P.S. Case No. 213 of 2012 corresponding to G.R. No. 614 of 2012 registered under Section 7 of the Essential Commodities Act, pending in the court of learned Sub-Divisional Judicial Magistrate, Pakur.

3. The allegations leveled against the petitioner in the First Information Report are as follows:-

(a) Petitioner has done black-marketing of 71 kg of rice and has not distributed the same among card-holders.

(b) Shop was found closed on inspection.

(c) Petitioner was not present at the time of inspection.

(d) There was no board displaying price-list.

4. Mr. Sharma, the learned Senior counsel appearing for the petitioner submits that the petitioner has distributed entire ration and no case under section 7 of the Essential Commodities Act has been made out. He submits that the petitioner has not sold the rice in open market and the same has been properly distributed to the concerned card holders. He submits that there is nothing in the FIR to show as to what provision of section 3 of the Essential Commodities Act has been violated and to prosecute the petitioner under section 7 of the E.C. Act. He further submits that in view of Public Distribution System (Control) Order, 2001, the case has been registered by the Supply Inspector in absence of any notification by the State Government as per Clause 10 of the said Order. He further submits that Central Government repealed all the control orders applicable to PDS Dealer with effect from 31.8.2001 when Central Government promulgated Public Distribution System (Control) Order, 2001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 Annexure-6 to the Public Distribution System (Control) Order, 2001 prescribes that State Government 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, 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 and in that event, case of the person other than PDS Dealer stands on better footing. Thus, prosecution against the petitioner gets vitiated. 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 that time has not come forward with any authorization authorizing any person to make search and seizure in terms of Clause 10 of the said order. In that view of the matter search and seizure is bad in law.

5. Mr. Pankaj Kumar, learned P.P. appearing for the State submits that the Dealer under the Public Distribution System is 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.

6. 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:

“Provisions of the Order to prevail over previous orders of State Governments – The provisions of this order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commence