The main legal point established in the judgment is the supremacy of the Public Distribution System (Control) Order, 2001 over previous orders, and the requirement for authorized authority for search and seizure.

JUDGMENT :

Heard Mr. A.K. Sahani assisted by Mr. Ashwini Kumar, learned counsel for the petitioner and Mr. Santosh Kumar Shukla, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal proceeding including the order dated 07.02.2008 passed in Namkum P.S. Case No.3 of 2006 (G.R. No.71 of 2006), pending in the court of the learned Sub Divisional Judicial Magistrate, Ranchi.

3. The FIR was lodged alleging therein that on 03.01.2006 through secret information regarding carriage of rice from one truck to another, during the course of enquiry, it was found that the truck loaded with rice bearing Truck No. BR 14A-0781 vide Challan No.437170 vide Circular No.87457. It was further alleged that Godown Manager- Lalit Kishore failed to produce any document. It was also alleged that the petitioner allowed supply/distribution of the food articles, rice bags in absence of Supply Inspector and thereby violated the rules, procedures giving rise to suspicion that the petitioner has allowed removal of rice bags for the purpose of sale in black market. It was also alleged that seizure list was prepared in presence of two witnesses.

4. Learned counsel for the petitioner submits that the petitioner was posted as Assistant Godown Manager of the Food Corporation of India for the purpose of unloading, storage and delivery of the rice bags. He further submits that in the FIR as well as in the charge-sheet, there is no material to make out any offence under Section 7 of the Essential Commodities Act. He submits that the petitioner is not the owner of the truck nor he was present in the said truck at the time of seizure and therefore the allegation of commission of offence, as alleged by the prosecution is false and frivolous. He further submits that there is no allegation that any food article was found shortage in the stock and in that view of the matter, the ingredient of Essential Commodities Act is not attracted against the petitioner. On these grounds, he submits that entire criminal prosecution is vitiated against the petitioner and to allow the proceeding to continue, will amount to abuse of process of law.

5. On the other hand, learned counsel for the State submits that the learned court has rightly taken cognizance against the petitioner and there is no illegality in the order taking cognizance. He further 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.

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:

“14. 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 commencement of this Order except as respects anything done, or omitted to be done there-under before such commencement.”

7. From perusal of the provision of the aforesaid order, it does appear that all the provisions relating to Dealer under the Public Distribution System virtually get repealed by virtue of the provision as contained in Clause 14.

8. In such situation, the provision of the Unification Order after commencement of the Public Distribution System (Control) Order, 2001 would not be workable so far it relates to the matter relating to distribution of PDS commodities.

9. The argument which has been advanced by the learned counsel appearing on behalf