A search and seizure under the Essential Commodities Act must be conducted by an authority authorized by the State Government, and lack of authorization renders the seizure and any resulting prosecution illegal.

JUDGMENT :

1. Heard learned counsel for the parties.

2. The instant revision application is directed against the judgment dated 07.12.2009, passed by learned Sessions Judge, Lohardaga, whereby the Cr. Appeal No. 26 of 2009, preferred by the petitioner has been dismissed with modification and the judgment of conviction and order of sentence dated 13.08.2009 in G.R. No. 282 of 2003, corresponding to T.R. No. 128 of 2009, passed by the learned S.D.J.M., Lohardaga, whereby the petitioner was convicted and sentenced to undergo simple imprisonment for two years under Section 7 of the Essential Commodities Act with a fine of Rs.300/- and in default of fine further to undergo SI for 10 days.

However, while dismissing the appeal, the learned appellate court modified the sentence to the extent that petitioner was sentenced to undergo SI for six months and fine of Rs.1,000/- under Section 7 of the E.C. Act and in default of payment of fine petitioner shall further to undergo SI for 15 days.

3. The prosecution case in brief is that on 24.08.2003 at 6 P.M. after receiving a secret information, Supply Inspector, Lohardaga with the police personnel reached the grocery shop of the petitioner. During the course of search 414 liters of blue kerosene oil recovered which was allegedly kept for the purpose of black marketing and on demand, no document was alleged to be produced; thereafter, the material was seized and case was instituted under Section 7 of the Essential Commodities Act as against the petitioner.

4. Learned counsel for the petitioner submits that the basic ingredients of section 7 of the E.C. Act is missing as no control order issued under Section 3 of the E.C. Act has been alleged to be violated by the petitioner which is only the basic ingredient for the initiation of prosecution under Section 7 of the Act. Further, in absence of allegation of violation of any applicable control order conviction and/or initiation of prosecution under Section 7 of the E.C. Act is illegal.

Further, seizure of kerosene oil from the shop of petitioner has not been supported by the seizure list witness and none of the independent witness including the seizure list witness has supported the case of prosecution. Moreover, the seizure list is itself defective and not made in accordance with law as it appears from the judgments that the alleged seizure list does not bear the signature of the petitioner.

5. Learned counsel for the State supported the judgment and submits that there is no error in the findings given by the Courts below; as such, the conviction cannot be set aside.

6. Having heard learned counsel for the parties and after going through the impugned judgments including the lower courts records, I find that the FIR was instituted with the allegation of black marketing against the petitioner on 24.08.2003 by the Supply Inspector, Lohardaga. It has been indicated in the written report itself that verification/enquiry was made with respect to the allegations against the accused petitioner.

From perusal of the record, I find that all the witnesses examined by the prosecution have turned hostile and have not supported the case of prosecution except P.W.1 who is the informant of the case and part of the raiding party.

7. Further, it transpires from the record that the Supply Inspector who had made search and seizure, upon which case has been registered, has not been authorized by the State Government to make search and seizure. This plea which has been taken by the petitioner has not been contradicted by the State Government.

Reference in this regard may be made to clause 10 of the Public Distribution System (Control) Order, 2001 which reads as under:

“10. Power of search and seizure- (1) An authority authorized by State Government shall be competent to inspect or summon such records or documents as may be considered by him necessary for examination and take extracts or copies of any records or documents produced before him.

(2) If the said authority has reas