Tapan Kumar Samanta vs Collector-cum-District Magistrate and Others

R.N. Biswal, J.—The fact giving rise to filing of the writ petition is that on 24.7.2009 at about 10.30 P.M. while the A.S.I. of Remuna Golei Out-Post along with some constables was engaged in patrol duty, he received information that four trucks being loaded with P.D.S. wheat were standing near NESCO office, instead of being driven to their respective destination, with a view to black marketing the wheat. So, the A.S.I., Remuna Golei Out-post lodged a written report before the Inspector In-Charge Industrial Area Police Station, Balasore, on the basis of which P.S. Case No. 110 of 2009 was registered under Sections 468/471/120-B of I.P.C. read with Section 7 of the Essential Commodities Act (hereinafter referred as E.C. Act) giving rise to C.T. Case No. 1381 of 2009 of the court of learned S.D.J.M., Balasore. The case was investigated into, in course of which, the I.O. (A.S.I. of Remuna Golei Out-Post) seized the wheat along with the trucks, prepared seizure list in respect thereof and reported this fact to the Collector, Balasore and requested him to initiate a proceeding u/s 6 (A) of the E.C. Act. After completion of due formalities, the Collector initiated Essential Commodities Case No. 32 of 2009. As an interim measure, on 14.8.2009 the Collector, Balasore directed the local C.S.O. to account for the wheat in the P.D.S. quota of Balasore Municipality and to reduce its quota proportionately and to deposit the sale proceeds thereof in appropriate account of the Government.

The case of the petitioner is that he is the owner of a flour mill. He arranged truck No. OR-01L 8713 belonging to Manas Kumar Jena on hire, purchased the wheat from free market, got the same loaded in the said truck and while the loaded truck was standing in front of Industrial Police Area, Balasore P.S., the A.S.I., Remuna Golei Out-Post seized the wheat along with the truck illegally. The present writ petition has been filed to quash the proceeding in E.C. Case No. 32 of 2009, set aside the interim order dated 14.8.2009 and to release the stock in favour of the petitioner.

Learned Counsel appearing for the petitioner submitted that as per Clause 23 of the Orissa Public Distribution System (Control) Order, 2008 (herein after referred as P.D.S. (Control) Order, 2008) the Licensing authority or any other officer authorized by Govt. in that behalf, can only search and seize any essential commodity in consonance with the provision contained u/s 102 of Cr.P.C. The Govt. in their Food Supplies and Consumer Welfare Department Notification No. 7450-FS.IC. 2/2008 dated 29th March, 2008 specified the officers authorized to exercise the power conferred u/s 23 of the P.D.S. (Control) Order, 2008. No police personnel is so specified. So, according to learned Counsel for the petitioner, the so-called P.D.S. wheat along with the truck having not been seized by any of the officers authorized to seize the same, the seizure was illegal, and, as such, the proceeding initiated u/s 6(A) of the E.C. Act could not stand and consequentially, the impugned order passed by learned Collector, Balasore would also fail. In support of his submission, he relied on the decisions in the case of Kailash Prasad Yadav and Anr. v. State of Jharkhand (2007) 37 OCR 586 : 2007 (II) OLR 471 SC, Nand Kishore Singh v. State of Bihar, Patna High Court 1990 (2) Crimes 744, Sankar Lalmaniyar and Anr. v. State of Andra Pradesh 2004 (2) ALD 314 (A.P.) and Ram Chandra Pansari v. State of Bihar, Patna High Court VIII 1988 (2) Crimes 963.

On the other hand, learned Addl. Govt. Advocate contended that as per Section 102(1) of Cr.P.C. any police officer can seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances, which creates a suspicion of commission of any offence. No notification under clause 23 of P.D.S. Control (Order), 2008 vesting power to a police officer to make search and seizure is required. In the present case the driver of the petitioner''s truck instead of driving the truck to its destination, drove it to some other place to. sell the wheat in black market. Since the conduct of the driver created suspicion of commission of an offence u/s 6 of the E.C. Act, the police officer rightfully seized the wheat along with the truck. Learned Additional Government Advocate further submitted that P.D.S. (Control) Order, 2008 came into force with effect from 19.3.2008. The notification under clause 23 of the said order was issued on 29.3.2008. The said notification can not over side the E.C. Act.

Now, the only points to be considered are whether a police officer is competent to seize P.D.S. wheat along with the truck on suspicion that the said wheat was to be sold in black market and whether on the basis of that seizure, confiscation proceeding u/s 6(A) can be initiated.

In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955), read with Paragraph 5 of the Annexure to the Public Distribution System (Control) Order, 2001, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), No. 434, dated the 31st August, 2001 and the notification of Government of India, in the Ministry of Agriculture and Irrigation (Department of Food), GSR 800, dated the 9th June, 1978, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), dated 17th June, 1978 and the notifications in the Ministry of Industry and Civil Supplies (Department of Civil Supplies and Co-operation) No. S.O. 681 (E) and S.O. 682 (E) both dated the 30th November, 1974, published in the ''Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), dated the 30th November, 1974, the State Government made the O.P.D.S. (Control) Order, 2008. Clause 23 of the said order reads as follows:

Power of entry, search and seizure etc. (a) � The Licensing Authority or any other officer authorized by Government in this behalf, may, with such assistance, if any, as he thinks fit:

(i) require the owner, occupier or any person in charge of the place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any license issued there under has been, is being or is about to be committed, to produce any books, accounts or other documents showing transactions relating to such contravention:

(ii) enter, inspect or break open any place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any licence issued there under has been, is being or is about to be committed;

(iii) take or cause to be taken extracts from or copies of any documents showing transactions relating to such contravention which are produced before him/her;

(iv) test or cause to be tested the weight of all or any of the essential commodities found in any such premises;

Provided that in entering upon and inspecting any premises the persons so authorized shall have due regard to the social and religious customs or the persons occupying the premises.

(v) search, seize and remove the stocks of the essential commodities and the packages, coverings, animals vehicles, vessels or other conveyance used in carrying the said essential commodities in contravention of the provisions of this order or of the conditions of any licence issued there under and thereafter take or authorize the taking of all measures necessary for securing the production of the essential commodities and the packages, coverings, animals, vehicles, vessels or any other conveyances so seized in a Court and for their safe custody pending such production.

(b) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall so far as may be, apply to searches and seizures under this clause.

Pursuant to the above provision, the State Government in their Food Supplies and Consumer Welfare Department vide notification dated 29.3.2008 specified the officers who can exercise the power of entry, search and seizure etc., but no police officer has been so specified. This notification having been issued in exercise of the powers conferred by Sub-clause (a) of Clause 23 of the P.D.S. (Control) Order, 2008 as stated earlier it cannot be said that it is only an executive instruction. Accordingly, the submission of learned Counsel for the petitioner in this regard cannot be sustained.

In the decision Kailash Prasad Yadav (supra), the apex court in reference to a case u/s 6(A) of the E.C. Act, held that valid seizure is a sine qua non for passing an order of confiscation of property. In the case of Nanda Kishore Singh (supra) it was held that where the seizure was made by a person not competent to seize the essential commodities, such seizure being illegal, the proceeding u/s 6(A) of the E.C. Act cannot stand. As per Rule 12 of Bihar Kerosene Oil Dealers Licensing Order, any Licensing Authority or any Executive Magistrate, Special Officer in Charge Rationing and an officer not below the rank of Sub-Inspector etc. can make search and seizure, but in the aforesaid case since an A.S.I. made the search and seizure it was held to be illegal. In the case of Shankar Lalmaniyar and another it was held that the authorities, mentioned in the control order are competent to search and seize the goods transported in violation of the control order and not the vigilance officers mentioned under the Act and in that view of the matter Section 6(A) of the Act cannot be invoked and search and seizure appears to be not valid for want of jurisdiction, so also the view taken by Patna High Court in the case of Rama Chandra Ansari (supra).

In the case at hand since an A.S.I. of police who was not authorized to make seizure, seized the so called P.D.S. wheat, the seizure itself being illegal, the proceeding u/s 6(A) of the E.C. Act cannot sustain.

Accordingly, the E.C. Case No. 32 of 2009 of the file of learned Collector, Balasore is hereby quashed and the wheat seized be released in favour of the petitioner forthwith. Consequentially, the interim orders passed by the Collector also stand quashed.

The writ petition is disposed of.

No cost.