Ram Gopal Saboo vs The State of Bihar

S.K. Chattopadhyaya, J.—With a prayer to quash the entire criminal prosecution and the order of cognizance dated 5.2.1992, the Petitioner has approached this Court.

The short facts which give rise to this application is that on 29.8.1991 the Executive Magistrate, Gumla made a written report to the police alleging, inter alia, that when he visited M/s Gumla Krishi Kranti alongwith another Executive Magistrate, he found that the dealer was selling Fertilizers at an excess price. Statements of two purchasers were taken who alleged to have stated that 7 Kgs. of Urea was sold at the rate of Rs. 3/- per Kg. and Fertiliser of 50 Kg. was sold for Rs. 235/- without any cash-memo. The First Information Report further shows that the said Executive Magistrate made the aforesaid search on the direction of the Sub-Divisional Officer. On inspection, it is alleged that some irregularities were found and after investigation the charge-sheet u/s 7 of the Essential Commodities Act (hereinafter referred to as ''the Act'') was submitted against the Petitioner. By the impugned order dated 5.2.1992, the Special Judge, under E.C. Act, took cognizance of the offence u/s 7 of the Act.

Mr. P.D. Agrawal, learned Counsel appearing on behalf of the Petitioner has raised several points before me in support of his argument by referring to several notifications namely, GSR 168, 452, 800, 681 and 682. He has submitted that from these notifications, it would be amply clear that extension of the provisions of Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as ''the Unification Order'') to Fertiliser is wholly without jurisdiction. He submits that the State Govt. under the Act, cannot exercise any independent power inasmuch as it has only delegated jurisdiction. Having delegated power, it is urged, the State Government cannot act beyond its delegated power.

Mr. Ramchandra Prasad, learned Counsel appearing on behalf of the State, however, has submitted that all these points raised by the Petitioner can be agitated at the trial and this Court, in exercise of its power u/s 482 of the Code, will not quash the order of cognizance.

The Unification Order, 1984 was made by the State Government in exercise of the powers delegated to it u/s 5 of the Act by Notification No. GSR 452(E) dated 25.10.1972, GSR 168(E) dated 13.3.1973, GSR 800 dated 9.6.78, S.O. No. 681(E) and S.O. No, 682(E) both dated 30.11.1974. The Central Government delegated its power u/s 3(1) of the Act to the State Government for imposition of restriction on the search of foodstuffs. Other delegated notification is S.O. No. 452(E) dated 25.10.1972. Again by Notification No. GSR 168(E) dated 13.3.1973 the Central Government delegated its power to the State Government to provide for matters specified u/s 3(2)(g) of the Act in relation to foodstuffs. By Notification No. S.O. 681(E) and S.O. No. 682(E) both dated 30th November, 1974 various powers u/s 3 were delegated to the State Government in relation to all essential commodities other than foodstuffs and fertilisers, whether organic, inorganic or mixed. Similarly by Notification No. GSR 800 dated 9.6.1978 various powers enumerated u/s 3(2) of the Act, were delegated to the State Government in relation to foodstuffs only.

From the aforesaid facts, it is clear that Central Government has not delegated any power to the State Government as far as Fertilisers, whether organic, inorganic or mixed, are concerned. In such view of the matter, in my considered opinion Unification Order cannot have any application as far as Fertilisers are concerned. My view is supported by a Division Bench decision of this Court in the case of Madhusudan Prasad and Ors. v. State of Bihar and Ors. (Cr.W.J.C. No. 212/81 decided on 25th November, 1981) which has been subsequently followed by learned Single Judge of this Court in the case of Shailendra Kumar Sinha Vs. The State of Bihar, . The aforesaid decision also dealt with the applicability of the provisions laid down in Bihar Essential Articles (Display of Price and Stocks) Order, 1977 and has held "that as power to issue order u/s 3 of the Act relating to Fertilisers has not been delegated to any State Government much less Bihar Government by the Central Government, the Petitioner cannot be said to have contravened any of the provisions of the Display Order."

Learned Counsel appearing on behalf of the State could not refer to any other decision which has taken a contrary view to this decision.

The argument of Mr. Agrawal that in view of Section 3(2)(j) read with Clause 27 and 28 of the Fertiliser (Control) Order, 1985, the Executive Magistrate could not have made a search of the business premises of the Petitioner. It was only the Sub-Divisional Officer, who was appointed as Inspector of Fertilisers under Clause 27, to exercise power conferred upon him under Clause 28 of the Order and that being not done, the search and seizure was wholly illegal and without jurisdiction.

Relying on several decisions of this Court, Mr. Agrawal has submitted that when the search and seizure was ipso facto illegal, the prosecution must be quashed.

In the case of Ram Chandra Pansari v. State of Bihar reported in 1988 PLJR 623, a Division Bench of this Court has held that no prosecution can lie where it is based on illegal search and seizure.

In the result, this application is allowed and the order taking cognizance dated 5.2.1992 including the criminal prosecution launched against the Petitioner is quashed.