Orissa High Court
Janmejay Sahu vs State Of Odisha & Ors. ......... ... on 24 December, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.24289 of 2012
Janmejay Sahu ......... Petitioner
-Versus-
State of Odisha & Ors. ......... Opposite Parties
Advocate for the parties
For Petitioner : Mr. S. Udgata,
Advocate
For Opp. Party : Mr. T.K. Biswal,
Nos.1 to 3 & 6 Addl. Govt. Advocate
For Opp. Party Nos.4 & 5 : Mr. S. Das,
Standing Counsel (Vig.)
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Judgment: 24.12.2024
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S.K. MISHRA, J.
1. This writ petition has been preferred challenging the competency of the Inspector of Police, Vigilance, Rourkela (Opposite Party No.4) in conducting the search and seizure in the business premises of the Petitioner, to quash the report submitted by the Opposite Party No.4, as at Annexure-1, to quash the order dated 29.08.2012 passed by the Collector and District Magistrate, Sundargarh (Opposite Party No.2) so also the proceeding in Misc. Case No.43 of 2012, now pending in the Court of Opposite Party No.3, for alleged contravention of the provisions of the Fertilizer (Control) Order, 1985, shortly hereinafter, „Control Order, 1985‟.
2. The factual matrix of the case is that license for retail dealership of fertilizer was issued by the District Agriculture Officer, Sundargarh (Opposite Party No.6) in favour of the Petitioner, which was valid till 17.03.2014. It is the case of the Petitioner that the Inspector of Police, Vigilance, Rourkela (Opposite Party No.4) conducted search in the business premises of the Petitioner and seized the license, stock register and other materials alleging contravention of provisions of the Clause 4, 5, 8 and 35(1)(a) of the Control Order,1985 and submitted a report before the Collector & District Magistrate, Sundargarh for initiation of Confiscation Proceeding. Thereafter, the Opposite Party No.2 registered Misc. Case No. 43 of 2012 under Section 6-A of the Essential Commodities Act,1955, in short "the Act,1955", against the Petitioner directing the District Agriculture Officer, Sundargarh to sell the seized fertilizer so also to credit the sale proceeds to the Government Treasury. Further, the W.P.(C) No.24289 of 2012 Page 2 of 42 Opposite Party No.2, vide order dated 29.08.2012, directed for transfer of the case record to the Court of Additional District Magistrate, Rourkela (Opposite Party No.3) for proceeding further and disposal of the case.
3. The writ petition has been preferred basically on the grounds that on perusal of the report of the Opposite Party No.4, as at Annexure-1, the Opposite Party No.4, who is alleged to have been empowered to investigate the case under the Act, 1955, as per the Home Department Notification No.31045/D & A dated 07.08.2004, carried out the search in the business premises of the Petitioner on receipt of allegation. However, the said notification has neither been notified in the Official Gazette nor the Opposite Party No.4 has been appointed vide the said notification to be the Inspector of Fertilizer for the purpose of carrying out the investigation for alleged contravention of the Control Order, 1985. The Opposite Party No.5, who carried out the said investigation in his official capacity as the Opposite Party No.4, does not possess the qualification for appointment as Fertilizer Inspector, in terms of the Control Order, 1985.
A ground has also been urged in the writ petition that as the Opposite Party No.4 is not authorized to conduct search, seizure of stock and other materials so also submit W.P.(C) No.24289 of 2012 Page 3 of 42 the report made vide Annexure-1, therefore the proceeding under Section 6-A of the Act, 1955 is non-est in the eye of law and the impugned order dated 29.08.2012 by the Opposite Party No.2, passed in Misc. Case No.43 of 2012, as at Annexure-2, is liable to be quashed.
A further ground has also been urged by the Petitioner that the search and seizure was made by the Opposite Party No.4 merely on the basis of receipt of allegation, which is contrary to the mandatory requirement under the Control Order, 1985.
It is also the case of the Petitioner that he is authorized to deal with the product. He correctly maintained the records and sold the stocks to farmers under proper authority supported by cash memos and the allegations against the Petitioner vide Report dated 23.08.2012 U/s-6 A(1) and 2 of the Act, 1955 is incorrect. Further, the confiscation proceeding in MC No. 43 of 2012, being based upon an illegal seizure, is liable to be quashed.
4. A Counter has been filed by the State Opposite Party Nos.4 and 5 taking a stand therein that a joint search was conducted on 18.08.2012 in the presence of Fertilizer Inspector-Cum-Assistant Agriculture Officer, Bonai on the W.P.(C) No.24289 of 2012 Page 4 of 42 allegation about hoarding and black marketing of the fertilizers by the Petitioner, pursuant to which a joint memorandum was prepared.
It is the stand of the Opposite Party Nos.4 & 5 that the Petitioner had not maintained the stock position of fertilizer and relevant records such as stock register and money receipt book properly and procured fertilizers from the wholesale dealer without a letter of authorization, which is in contravention of provisions under Clause 4, 5, 8 and 35(1)(a) of the Control Order,1985. Hence, the Fertilizer Inspector- Cum-Assistant Agriculture Officer requested the DSP, Vigilance of Rourkela Vigilance Unit vide letter dated 18.08.2012 to take necessary legal action against the Petitioner. A vigilance enquiry was conducted by the concerned Inspector of Vigilance, Rourkela, who submitted a report after completion of the enquiry. On the basis of the said report P.S. Case No.56 of 2012 was registered against the Petitioner for commission of offence under Section 7(1)(a)(ii) of the Act,1955 so also violation of provisions under the Control Order,1985 and the Inspector of Vigilance, Rourkela was entrusted with the investigation of the case.
The Petitioner had been issued with license by the W.P.(C) No.24289 of 2012 Page 5 of 42 District Agriculture Officer, Bonai (Opposite Party No.6) for retail dealership of fertilizer, which was valid till 17.03.2014. However, after search of the licensed shop of the Petitioner in presence of the Opposite Party No.6, he had been issued with show cause notice for contravention of different provisions of Control Order, 1985 vide notice dated 11.08.2012 and his registration was suspended w.e.f. 21.08.2012.
It is also the stand of the Opposite Parties that Home Department Notification dated 07.08.2004 has been published in the Orissa Gazette on 20.08.2004, vide which an Inspector of Police, Vigilance has been empowered to investigate all the offences under the Act, 1955, not the Inspector of Fertilizer. Thus, the Opposite Party No.4 was competent to investigate into the case. Apart from that, the Inspector of Fertilizer had himself requested the Vigilance Authorities to take legal action and search had also been conducted in the presence of the Assistant Agriculture Officer- Cum-Fertilizer Inspector, Lahaunipada.
It is the further stand of the Opposite Parties that the Petitioner had not maintained the stock position of fertilizer and relevant records such as stock register, money receipt book properly and there was also shortage of stock in W.P.(C) No.24289 of 2012 Page 6 of 42 fertilizer for which a case vide SBP(V) 56 of 2012 has been registered so also confiscation proceeding under Sections 6-A and 2 of the Act, 1955 was initiated by the Collector-Cum- District Magistrate, Sundargarh. In the meantime, in SBP(V) No. 56 of 2012 charge-sheet has been submitted against the Petitioner vide Charge-Sheet No.63 dated 26.10.2012.
5. Learned Counsel for the Petitioner, reiterating the facts detailed in the writ petition, submitted that a valid seizure is a sine qua non for initiation of a confiscation proceeding and passing any order thereon. Learned Counsel, drawing attention of this Court to Clause 2(l) of the Control Order, 1985, submitted that "Inspector" has been defined under the said clause to mean an Inspector of Fertilizer, appointed under Clause 27 of the Control Order, 1985 by the State Government or Central Government, by notification in the Official Gazette, defining the limits of local area within which the Inspector shall exercise his jurisdiction.
Learned Counsel for the Petitioner further submitted that Clause 27-A of the Control Order, 1985 provides that no person shall be eligible for appointment as Fertilizer Inspector unless he is a graduate in agriculture or science with chemistry as one of the subjects, from a recognized University and possesses the training or experience W.P.(C) No.24289 of 2012 Page 7 of 42 in the quality control or fertilizers and working in the State or Central Government Department of Agriculture. Further, Clause 28 of the Control Order,1985 provides that the Fertilizer Inspector must have reason to believe that the fertilizer has been manufactured, sold, offered for sale, stored, distributed for sale or distributed contrary to the provision of the Control Order,1985 before he enters upon any such premises.
However, none of the aforesaid conditions has been complied with by the Opposite Party No.4 namely, the Opposite Party No.5, as neither he has the notification in his favour nor he possess the requisite qualification, training and works in Agriculture Department of the Government of Orissa. Further, he has not recorded any reason to believe that there is contravention of the Control Order, 1985.
6. Learned Counsel for the Petitioner further submitted that the District Agriculture Officer and the Assistant Agriculture Officer, who were accompanying the Opposite Party No.5 at the time of search and seizure, so also to whom the seized stocks and documents were handed over, neither had any notification published in the Official Gazette under the Control Order, 1985 in their favour nor they are qualified to be the Investigators.
W.P.(C) No.24289 of 2012 Page 8 of 42
7. Learned Counsel for the Petitioner relied on the Judgments of this Court in P. Basudeb Rao Vs. State of Orissa reported in 1990 (I) OLR 80, Tapan Kumar Samanta Vs. Collector-Cum- District Magistrate, Balasore and Others reported in 2010 (I) OLR 221, Krushna Chandra Sahoo Vs. Bank of India & Others reported in AIR 2009 ORISSA 35, Swastik Agency and Others Vs. State Bank of India, Bhubaneswar and Others reported in AIR 2009 ORISSA 147, State of Orissa Vs. Managobinda Sahoo reported in 2009 (Sup-I) OLR 201, Dipak Kumar Saha Vs. State of Orissa and Others reported in 2012 (Sup-I) OLR 639, Sarat Kumar Swain Vs. State of Odisha & Others reported in 2023(II) ILR CUT 608, Shaswata Pratika Pradhan Vs. State of Odisha & Ors reported in 2022(III) ILR CUT 742 and M/s. The Indure Limited Vs. Commissioner of Sales Tax, Orissa, Cuttack & Others reported in 2006(II) OLR 154 so also Judgments of the Supreme Court in K.L. Subhayya Vs. State of Karnataka reported in AIR 1979 SC 711, M/s. Ganga Saran & Sons Pvt. Ltd, Calcutta Vs. The Income Tax Officer & Others reported in AIR 1981 SC 1363,Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai &Ors reported in AIR 1999 SC 22, Renaissance Hotel Holdings INC Vs. B. Vijaya Sai and Others reported in (2022) 5 SCC 1 W.P.(C) No.24289 of 2012 Page 9 of 42 and Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others reported in AIR 1978 SC 851. He also relied on the Judgments of Patna High Court in Sanjay Kumar Jaiswal Vs. The State of Bihar and Others reported in 1990 (1) PLJR 416 and Ram Chandra Pansari Vs. State of Bihar reported in 1989 CRI.L.J. NOC 88 so also the Judgment of Telengana High Court in ManthenaSrinivasa Raju Vs. Directorate of Enforcement passed in Criminal Petition No.634 of 2021 to substantiate his submissions and prayers made in the writ petition.
8. Per contra, learned Counsel for the State submitted that as there is an effective and alternative remedy of appeal against the impugned order, the writ petition is not maintainable. Learned State Counsel, drawing attention of this Court to the provisions under Section 6-A, 6-C and 2(cc) of the Act, 1955, submitted that Section 6-C of the Act, 1955 stipulates that an aggrieved person by an order of confiscation under Section 6-A may prefer an appeal before any judicial authority appointed by the State Government concerned. As defined under Section 2(cc) of the Act, 1955, an "Order" includes a direction issued. Further, Section 6-A provides the procedure for confiscation of essential commodities. Sub- Section (2) of Section 6-A provides that the Collector, on W.P.(C) No.24289 of 2012 Page 10 of 42 receiving a report of seizure of any essential commodity under Sub-Section (1) of Section 6-A, can order the seized essential commodity to be sold at the controlled price and where no such price fixed, order the same to be sold by public auction and to credit the sale proceeds thereof into Government Treasury.
Learned Counsel for the State further submitted that from the impugned Order at Annexure-2, it is clear that a case was registered under Section 6-A of the Act, 1955. The said order also well demonstrates that a direction for confiscation of the seized commodities was given to the concerned authority and to sell the seized fertilizer at the approved rate so also to credit the sale proceeds into Government Treasury. Thus, the impugned order at Annexure-2 is an order of confiscation of the seized fertilisers and the said order is appealable under Section 6-C of the Act, 1955.
9. Learned Counsel for the State submitted that the search and seizure was conducted by one Debananda Sahoo, who was declared as Fertilizer Inspector, duly notified in terms of Clause 27 of the Control Order, 1985, who requested the Deputy Superintendent of Vigilance, Rourkela vide letter dated 18.08.2012, as at Annexure-A/4 of the Counter- W.P.(C) No.24289 of 2012 Page 11 of 42 Affidavit, to take legal action against the Petitioner for contravention of the provisions under the Control Order, 1985 after due enquiry.
10. To substantiate his submissions, learned Counsel for the State relied on the judgments of Supreme Court in Debasish Paul and Another Vs. Amal Baral, reported in (2024) 2 SCC 169 and Thansing Nathmal Vs. Superintendent of Taxes, reported in AIR 1964 SC 1419.
11. Though no such objection has been raised by the State in its Counter regarding maintainability of the Writ Petition on the ground of availability of alternative remedy of Appeal under Section 6-C of the Act, 1955 against the confiscation order passed under Section 6-A of the said Act, as the learned State Counsel raised the point of maintainability of the present writ petition on the said ground, the following points emerge to be dealt with and answered by this Court.
(i) Whether the writ petition is maintainable in view of the alternative remedy of appeal available under Section 6-C of the Act, 1955?
(ii) Whether the Inspector of Police, Vigilance, Rourkela Unit, Rourkela, namely, Mr. P. K. Naik, who has been arrayed as Opposite W.P.(C) No.24289 of 2012 Page 12 of 42 Party No.4 by designation and Opposite Party No.5 by name, was competent to conduct search and seizure in the business premises of the Petitioner for alleged contravention of provisions under the Control Order, 1985 and initiate confiscation proceeding against the Petitioner?
12. One of the impugned orders in the present writ petition is the order dated 29.08.2012 passed by the Collector, Sundargarh in Misc. Case No.43 of 2012, which has been initiated against the Petitioner under Section 6-A of the Act, 1955 at the instance of the present Opposite Party No.4 for confiscation of seized fertilizer and sale of the same to avoid speedy natural decay in terms of provisions enshrined under Section 6-A (1) and 2 of the Act, 1955, vide which the Opposite Party No.2 ordered for sale of the seized fertiliser to deserving farmers at the approved rate and credit the sale proceeds into the Government Treasury.
13. Admittedly, the said order dated 29.08.2012 passed by the Collector, Sundargarh in Misc. Case No.43 of 2012 is appealable under Section 6-C of the Act, 1955. However, the said order so also report submitted by the W.P.(C) No.24289 of 2012 Page 13 of 42 Opposite Party No.4, as at Annexure-1 to the writ petition, based on which the confiscation proceeding was initiated against the Petitioner, are under challenge solely on the ground that the Opposite Party No.4, who has also been arrayed as Opposite Party No.5 to the writ petition by name, has no jurisdiction to conduct search and seizure under the Control Order, 1985. The very basis of initiation of confiscation proceeding under Section 6-A of the Act, 1955 being under challenge in the writ petition, vide order dated 19.12.2012, this Court, as an interim measure, stayed further proceeding in Misc. Case No.43 of 2012, now pending in the Court of Additional District Magistrate (Opposite Party No.3) till the next date and the said interim order being extended from time to time, is still in vogue. The Opposite Party Nos.4 & 5, though filed a Counter Affidavit after 11 years i.e. on 25.02.2023, no such stand has been taken in the Counter Affidavit regarding maintainability of the Writ Petition on the ground of availability of alternative remedy under Section 6-C of the Act, 1955.
14. Law is well settled that the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of availability of the alternative statutory remedies, is not affected, specifically in a case where the W.P.(C) No.24289 of 2012 Page 14 of 42 authority, against whom the writ is filed, is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
15. In Whirlpool Corporation (supra), the Supreme Court held as follows:
"20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "TRIBUNAL".
(Emphasis supplied)
16. Similarly, in Shaswata Pratika (supra), the Division Bench of this Court, relying on umpteen numbers of judgments of the Supreme Court, vide paragraphs-15 to 19, held as follows.
"15. In Dr. Smt. Kuntesh Gupta (supra), the apex Court holding that the Vice- Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority and, as such, as per the provisions contained W.P.(C) No.24289 of 2012 Page 15 of 42 in Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. Thereby, the Vice- Chancellor has acted wholly without jurisdiction in reviewing her order and, as such, the same is a nullity. If the order in question is nullity in the eye of law, availability of alternative remedy is not a bar to approach the Court by invoking extra ordinary jurisdiction under Article 226 of the Constitution of India. By holding so, in paragraph-12, of the said judgment, the apex Court held as under:
"The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under Sec. 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Art. 226 of the Constitution on the ground of existence of an alternative remedy."
16. In Whirlpool Corporation (supra), the apex Court in paragraphs-20 & 21 of the said judgment, held as under:-
"20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the of the High Court in entrance a writ petition under Article 226 of the W.P.(C) No.24289 of 2012 Page 16 of 42 Constitution. In spite of the alternative statutory remedies. Is not affected, specially in a case where the authority against whom the writ is field is shown to have has no jurisdiction or has purported to usurup jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in circumstances of the case, was not justified in acting as the "TRIBUNAL".
17. In Godrej Sara Lee Limited (supra), the apex Court held that the question as to whether the notification could have a retrospective effect or retroactive operation being a jurisdictional fact, should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India, as it is well known that when an order of an statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, alternative remedy may not be a bar.
18. In Uttar Pradesh Power Transmission Corporation Limited (supra), the apex Court held as follows:-
"It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly: (i) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice W.P.(C) No.24289 of 2012 Page 17 of 42 or; (iii) where the impugned orders or proceedings are wholly without jurisdiction or; (iv) the vires of an Act is under challenge."
19. Applying the above principles to the present case, this court is of considered view that the impugned order of cancellation of lease and forfeiture of security amount, having been passed by the Tahasildar, suffers from jurisdictional error. More so, the same is without jurisdiction, as it is the controlling authority, which can pass the order in terms of Rule-43 (3) of OMMC Rules, 2016. Thereby, the order dated 09.03.2021 passed under Annexure-9 cancelling the lease and forfeiting the security amount, cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed. Otherwise also, the said order has been passed contrary to the direction issued by this Court W.P.(C) No.10449 of 2021 disposed of on 18.03.2021."
(Emphasis Supplied)
17. In Bal Krushna Agarwal Vs. State of U.P. & others reported in 1995(70)FLR1041: JT1995(1)SC471, it was held as follows:
"10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the W.P.(C) No.24289 of 2012 Page 18 of 42 High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondent Nos.4 & 5. We may, in this context, mention that the respondent No.4 has already retired in January, 1994."
(Emphasis Supplied) In Rasmi Ranjan Srichandan & others Vs. Principal-Cum-Secretary, Sri Jayadev College of Education and Technology and others reported in 2000(1)OLR255:89 the coordinate Bench held as follows:
"3. There is no doubt that even for terminating the service of a temporary employee of an aided College, the prior approval of the D.P.I. is necessary. It is also apparent that since the College was an aided College, the petitioners could have approached the Education Tribunal as is clear from the decision reported in MANU/OR/ 0164/1979:47 (1979)CLT 517 (Managing Committee, Orissa Police High School V. Rasbehari Patnaik and Ors). However, since no disputed questions of fact are involved in the present writ application and as the matter had been entertained in the year 1998 and it may not be proper to drive the petitioners to seek their alternative remedy before the Tribunal, the writ application is being disposed of."
(Emphasis supplied)
18. Admittedly, the Petitioner has challenged the competency of the Inspector of Vigilance to do the search and seizure and initiate confiscation proceeding against the Petitioner solely on the ground of lack of authority to do so in W.P.(C) No.24289 of 2012 Page 19 of 42 view of the specific provision enshrined under the Act, 1955 so also Control Order, 1985. That apart, this Court entertained the writ petition directing the State to file Counter Affidavit and after about eleven years, the State filed the Counter on 25th February, 2023 on merit, without raising the point regarding maintainability of the writ petition on the ground of alternative remedy. Further the point raised by the Petitioner as to legality to initiate the confiscation proceeding so also other consequential action, based on the competency of the Opposite Party No.4 to do search and seizure, is a pure question of law. Hence, the point No.(i) with regard to maintainability of the writ petition is answered against the Opposite Party Nos.4 & 5.
19. Point No-(ii) is regarding competency of the Opposite Party Nos.4 to enter into the premises of the Petitioner to do search and seizure and initiate confiscation proceeding against him in terms of Section 6-A of the Act, 1955 before the Opposite Party No.2 (Collector, Sundargarh). Before dealing with the said point, it would be appropriate to reproduce below the definition of „Inspector‟ as defined under Clause 2(l), Clause 27, 27A and Clause 28 of the Control Order, 1985 for ready reference.
W.P.(C) No.24289 of 2012 Page 20 of 42
"2. Definitions:- In this Order, unless the context otherwise requires:
xxx xxx
xxx
l) "inspector" means an Inspector
of Fertilisers appointed under clause 27.
27. Appointment of inspectors.- The State Government, or the Central Government may, by notification in the Official Gazette appoint such number of persons, as it thinks necessary, to be inspectors of fertilisers for the purpose of this Order, and may, in any such notification, define the limits of local area within which each such inspector shall exercise his jurisdictions.
27A. Qualifications for appointment of fertiliser Inspectors. No person shall be eligible for appointment as Fertiliser Inspector under this Order unless he possesses the following qualifications, namely:-
(1) Graduate in agriculture or science with chemistry as one of the subjects, from a recognised university; and (2) Training or experience in the quality control of fertilisers and working in the State or Central Government Department of Agriculture.
28. Powers of Inspectors.-(1) An inspector may, with a view to securing compliance with this Order:-
(a) require any manufacturer, importer, pool handling agency, wholesale dealer or retail dealer to give any information in his possession with respect to the manufacture, storage and disposal of any fertilizer manufactured or, in any manner handled by him W.P.(C) No.24289 of 2012 Page 21 of 42
(b) draw samples of any fertiliser in accordance with the procedure of drawal of samples laid down in Schedule II. Provided that the inspector shall prepare the sampling details in duplicate In Form J, and hand over one copy of the same to the dealer or his representative from whom the sample has been drawn;
(ba) draw samples of any biofertilizers in accordance with the procedure of drawl of samples laid down in schedule III.
(bb) draw samples of any organic fertilisers in accordance with the procedure of drawl of samples laid down in schedule IV.
(c) enter upon and search any premises where any fertiliser is manufactured/ Imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this Order;
(d) seize or detain any fertiliser in respect of which he has reason to believe that a contravention of this Order has been or is being or is [attempted] to be committed;
(e) seize any books of accounts or documents relating to manufacture, storage or sale of fertilisers, etc. in respect of which he has reason to believe that any contravention of this Order has been or is being or is about to be committed;
Provided that the Inspector shall give a receipt for such fertilisers or books of accounts or documents so seized to the person from whom the same have been seized;
Provided further that the books of accounts or documents so seized shall be returned to the person from whom they W.P.(C) No.24289 of 2012 Page 22 of 42 were seized after copies thereof or extracts therefrom as certified by such person, have been taken.
(2) Subject to the proviso to paragraphs (d) and (e) of subclause (1), the provisions 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.
Provided also that the inspector shall give the stop sale notice in writing to the person whose stocks have been detained and initiate appropriate action as per the provisions of this order within a period of twenty one days. If no action has been initiated by the inspector within the said period of twenty one days from the date of issue of the said notice, the notice of stop sale shall be deemed to have been revoked.
(3) Where any fertiliser is seized by an inspector under this clause, he shall forthwith report the fact of such seizure to the collector whereupon the provisions of sections 6A, 6B, 6C, 6D and 6E of the Act, shall apply to the custody, disposal and confiscation of such fertilisers.
(4) Every person, if so required by an inspector, shall be bound to afford all necessary facilities to him for the purpose of enabling him to exercise his powers under sub-clause (1).
(Emphasis Supplied)
20. From the said legal provisions, extracted above, it is amply clear that the State Government or the Central Government, by notification in the Official Gazette, has to appoint such number of persons, as it thinks necessary, to be the Inspector of fertilisers for the purpose of the said order W.P.(C) No.24289 of 2012 Page 23 of 42 and in the said notification has to define the limits of local area within which each such Inspector shall exercise his jurisdiction. Clause-27A of the Control Order, 1985 mandates as to qualifications one should possess to be appointed as Fertiliser Inspector. So far as Clause 28(C) of the Control Order, 1985, an Inspector, who has been appointed in terms of Clause 27 of the Control Order, 1985 to enter upon and search any premises, where any fertiliser is manufactured/ imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of the Control Order, 1985.
21. The issue in the present Writ Petition is regarding competency of the Opposite Party No.4, who has been arrayed as Opposite Party No.5 by name, to exercise the powers of an Inspector. A stand has been taken by the Opposite Party in its Counter that on the allegation about hoarding and black marketing of fertilizers by the Petitioner, joint search was conducted on 18.08.2012 in the presence of Mr. Debananda Sahu, Fertiliser Inspector-cum-Assistant Agriculture Officer, Lahunipada. On request of Mr. Sahu to the DSP, Vigilance of Rourkela Vigilance Unit, vide letter dated 18.08.2012, the W.P.(C) No.24289 of 2012 Page 24 of 42 Opposite Party No.4 conducted an inquiry, and submitted a written report to the S.P. Vigilance, Sambalpur Division. An order was passed on 21.03.2023 permitting the learned Standing Counsel (Vigilance) to obtain instruction as to whether Sri. Debananda Sahu, Assistant Agriculture Officer- cum-Fertiliser Inspector, Lahunipada has been duly notified to act as an Inspector in terms of Clause 27 of the Control Order, 1985 and to produce the said notification, if so notified. On being so ordered, the State has filed Notification No.31481 dated 10.11.2000. The said notification, being relevant for proper adjudication of the present lis, is reproduced below:
Notification Bhubaneswar, Dated the 10th December, 2000 No.Input-(F)-26/2000 31481 / Ag., In exercise of the powers conferred by Clause 27 of the Fertilizer (Control) Order, 1985 and in supersession of all previous notifications on the subject, the State Government do hereby appoint the following officers having the qualifications of (1) Graduate in Agriculture or Science with Chemistry as one of the subjects from a recognized University, and (2) Training or experience in the quality control of fertilisers and working in the State Government in the Agriculture Department as prescribed in clause 27-A of the said Order, to be the Inspectors of Fertilisers for the purpose of the aforesaid Order and define the limits of local area against each within which they shall exercise their jurisdiction, namely :-
1. All Assistance Agriculture Officers working in the Blocks of the State. :Within their local limits of jurisdiction.2. All Junior Agriculture Officer working in the Blocks of Orissa. :
With their local limits of jurisdiction.
By order of the Governor Additional Secretary to Government Memo No.31482/Ag., Dated, the 10/11/2000 (Emphasis Supplied) W.P.(C) No.24289 of 2012 Page 25 of 42
22. Though a copy of the said notification dated 10th December, 2000 was filed by the learned State Counsel, but the learned Counsel for the Petitioner disputed its publication in the Gazette. Hence, again an order was passed on 25.04.2024 to file the Gazette Notification, if any, pursuant to Memo No.31482, 10.11.2000. Being so ordered, the learned State Counsel (Vigilance) produced a communication dated 11.07.2024 of the S.P., Vigilance, Rourkela Division, Rourkela along with letter dated 25.06.2024 of the Joint Director of Agriculture (QC & Enforcement), which indicated that copy of the Gazette Notification is not traceable in the Directorate (Gazette Cell) and is not available for submission before this Court.
23. In P. Basudeb Rao (supra), the coordinate Bench held as follows;-
"8. According to Clause-11(aa), the price of the paddy will be declared by the Government in advance in official Gazette. In this case Ext-4 has been produced to show the price declared by the Government. Ext-4 is no doubt a notification issued by the Government of Orissa, Food and Civil Supplies Department and circulated to various authorities under different memo numbers. Ext-4 may be intended to be notified in the official Gazette, but it is not the official Gazette. There is no proof of the official Gazette in this case and hence it cannot be said that the Government declared any price within the meaning of Clause-11(aa) by a notification in the official W.P.(C) No.24289 of 2012 Page 26 of 42 Gazette. Thus, the essential ingredient of the offence has not been proved by the prosecution and so it cannot be said that the prosecution has successfully proved that the accused has violated the provisions of Clause-11(aa) of the Orissa Rice and Paddy Control Order."
(Emphasis supplied)
24. Admittedly, the said Notification was made by the State Government in exercise of power conferred under clause 27 of the Control Order, 1985, which well demonstrates that all the Assistant Agriculture Officers having qualification of graduation in agriculture or science with chemistry as one of the subjects from a recognised university, so also all Junior Agriculture Officers, having training or experience in the quality control of fertilisers, and working in the State Government in the agriculture department, as prescribed in Clause 27-A of the Control order,1985 to be the Inspector of Fertilisers for the purpose of Control Order, 1985. Clause 28 of the Control order, 1985 mandates the power of Inspectors. Sub-clause 1(C) under clause 28 empowers the Inspector to enter upon and search any premises where any fertiliser is manufactured/imported or stored or exhibited for sale, if he has reason to believe that any fertiliser has been or is being manufactured/imported, sold, offered for sale, stored, W.P.(C) No.24289 of 2012 Page 27 of 42 exhibited for sale or distributed contrary to the provisions of the Control Order, 1985.
25. Similarly, sub-clause 3 of clause 28 of the Control Order, 1985 mandates that where any fertiliser is seized by an Inspector under the said clause, he shall forthwith report the fact of such seizure to the Collector, whereupon the provisions of Sections 6A, 6B, 6C, 6D and 6E of the Act, 1955 shall apply to the custody, disposal and confiscation of such fertilisers. There is no such provision under the Control Order, 1985 empowering the Inspector, so notified by the State Government or Central Government, to sub-delegate such power to act as an Inspector or to exercise powers of an Inspector, as detailed in clause 28 of the Control Order, 1985.
26. In para 5 (f) of the Counter Affidavit filed by the Opposite Party Nos.4 & 5, though it has been admitted that an Inspector of Police, Vigilance has not been appointed to act as an Inspector of Fertiliser, but a stand has been taken that Home Department Notification dated 7th August, 2004 has been published in the Orissa, Gazette on 20th August, 2004, which empowers an Inspector of Police to investigate all the offences under the Act, 1955. Since, violation of Fertiliser (Control) Order is an offence under the Act, 1955, the Opposite Party No.4 was competent to investigate into the W.P.(C) No.24289 of 2012 Page 28 of 42 matter. In view of such stand of the Opposite Party Nos.4 & 5, it would be apt to reproduce below the said Notification dated 20th August, 2004, for ready reference:
NOTIFICATION "The 7th August 2004 No.31045-P6P-49/2004-D. & A.- In exercise of the powers conferred by clause(s) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and in supersession of the notification of the Government of Orissa in the Home Department No.38962-HC., dated the 13th July 2001, the State Government do hereby declare that the offices mentioned in column (1) of schedule I shall be Police-stations which shall include within their respective limits the areas specified against each in column (2) of the said schedule for the purpose of the offences contained in schedule II below with effect from the date of publication of this notification in the Orissa Gazette.
SCHEDULE I
SI. No. Name of the office Jurisdiction
(1) (2) (3)
1 Office of the S. P., Revenue Districts of Cuttack,
Vigilance, Cuttack Jagatsinghpur, Jajpur,
Kendrapara, Dhenkanal and
Angul.
2 Office of the S.P., Revenue Districts of Puri,
Vigilance, Bhubaneswar Khurda and Nayagarh.
3 Office of the S.P., Revenue Districts of Balasore,
Vigilance, Balasore Bhadrak, Mayurbhanj, and
Keonjhar.
4 Office of the S.P., Revenue Districts of
Vigilance, Sambalpur Sambalpur, Bolangir,
Jharsuguda, Baragarh,
Sonepur, Deogarh and
Sundargarh
5 Office of the S.P., Revenue Districts of Ganjam,
Vigilance, Berhampur Gajapati, Kandhamal, Boudh.
6 Office of the S.P., Koraput Revenue Districts of Koraput,
Vigilance Division, Rayagada, Nawarangpur,
Jeypore. Malkangiri, Kalahandi and
Nuapada.
W.P.(C) No.24289 of 2012 Page 29 of 42
SCHEDULE II
(a) Offences punishable under Sections 161,162,163,164,165 and 165-A of the Indian Penal Code, 1860 (Act XLV of 1860).
(b) Offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988).
(c) Offences relating to-
(i) evasion of taxes and different control orders;
(ii) transit and possession of Forest Products as enumerated in Sections 45 and 46 of the Orissa Forest Act, 1972 (Orissa Act 14 of 1972), read with Section 56 of the said Act;
(iii) the Orissa Timber and Other Forest Products Transit Rules, 1980;
(iv) the Essential Commodities Act, 1955 (10 of 1955);
(v) the Prevention of Food Adulteration Act, 1954 (37 of 1954);
(vi) the standard of Weights and Measures (Enforcement) Act, 1950 (26 of 1950);
(vii) the Drugs (Control) Act, 1950 (26 of 1950);
(viii) the Motor Vehicles Act, 1988 (59 of 1988); and
(ix) all organized offences under the aforesaid Acts, Orders and Rules effecting the pecuniary interest of the State.
(d) Offences under Sections 409,419 and 420 and Chapter XVIII of the Indian Penal Code, 1860 committed by public servants as defined in the said Code and in the Prevention of Corruption Act, 1988.
(e) Attempts, abatements conspiracies in respect of offences mentioned in items (a), (b), (c) and (d) above by whomsoever committed.
(f) Any other particular offences or class of offences that may be specified by the State Government from time to time."
By order of the Governor SANTOSH KUMAR Principal Secretary to Government (Emphasis Supplied)
27. It is amply clear from the said Notification made by the Home Department that it was made in exercise of powers W.P.(C) No.24289 of 2012 Page 30 of 42 conferred by clause (s) of Section 2 of the Code of Criminal Procedure,1973 (2 of 1974) and in supersession of the notification of the Government of Orissa in the Home Department No.38962-HC, dated 13th July, 2001 declaring the offices mentioned in Column (1) of Schedule-I of the said notification to be the Police Stations, which shall include within their respective limits the area specified against each in the Column (2) of the said schedule for the purpose of offences contained in Schedule-II with effect from the date of publication of the said notification in the Orissa Gazette. The offences detailed under Schedule-II include the offence under the Essential Commodities Act, 1955.
28. It is further clear from the said notification that such notification was made by the State Government authorising various Offices, including Office of the S.P. Vigilance, Sambalpur, to be the Police Station competent to deal with the offences under various Acts, including the offence under the Essential Commodities Act, 1955. It has got nothing to do with notification to be made in terms of clause 27 of the Control Order, 1985. As required under clause 27 of the Control Order, 1985, the State Government vide notification dated 10.11.2000, which has been extracted above, notified the Assistant Agriculture Officers so also W.P.(C) No.24289 of 2012 Page 31 of 42 Junior Agriculture Officers, having requisite qualifications in terms of clause 27-B of the Control Order, 1985, to be the Inspector of Fertilisers for the purpose of the Control Order, 1985, empowering the said Officers to exercise power under clause 28 of the Control Order, 1985 for search and seizure and other purposes.
29. It is amply clear from the Report dated 23.08.2012 submitted in terms of Section 6A (1) and 2 of the E.C. Act, 1955, as at Annexure-1, that the Opposite Party No.5 namely, P. K. Naik, who was the then Inspector of Police-Vigilance, Rourkela Unit, Rourkela, submitted a written report, based on which Sambalpur Vigilance P.S. Case No.56 dated 21.08.2012 was registered U/s 7(1)(a)(ii) of the E.C. Act for contravention of various provisions under the Control Order, 1985 against the Petitioner so also the wholesale fertiliser dealer before the Collector and District Magistrate, Sundargarh. Based on the written report submitted by the Opposite Party No.5 against the Petitioner so also another person namely, Sri. Managobinda Jaiswal (Wholesale Fertiliser Dealer of Village, Lahunipada), the Opposite Party No.5 was entrusted with the investigation of the said case. A joint surprise check was conducted on 18.08.2012 from 11.45 AM to 4.30 PM in the registered fertiliser shop of the Petitioner with the assistance W.P.(C) No.24289 of 2012 Page 32 of 42 of one Sri. Kedarnath Mohapatra, I/c District Agriculture Officer, Bonai, Sri Debananda Sahu, Assistant Agriculture Officer, Lahunipada, Sri Dayanidhi Pradhan, Asst. Agriculture Officer, Raiboga and Sri Salu Majhi, Inspector of Supply, Rourkela. It further reveals from the said report submitted before the Court of Collector and District Magistrate Sundargarh that, the Opposite Party No.4, who has been arrayed by name as Opposite Party No.5, being the Inspector of Police, Vigilance, again visited the registered fertiliser shop of the Petitioner (accused) on 22.08.2012 and re-verified the physical stock position of the fertilisers handed over to him on 18.08.2012 for safe custody. It was found that he has allegedly sold 73 bags of IFFCO Urea Fertilisers out of physical stock of 312 bags violating the direction imposed on him during surprise check on 18.08.2012. Hence, the Opposite Party No.4 seized the remaining physical stock of 239 bags of IFFCO Urea, 17 bags of 20:20:013 PPL, 42 bags of IFFCO 20:20:013 and 48 bags of DAP PPL fertilizers from the Petitioner. The relevant documents were taken to custody on the date of surprise check under the seizure list dated 22.08.2012. Thereafter, the Opposite Party No.4 moved before the Opposite Party No.2 praying therein to confiscate the seized fertilisers to the State and put the same to sell as a W.P.(C) No.24289 of 2012 Page 33 of 42 measure of interim disposal to avoid speedy natural decay so also for the interest of farmers in terms of provisions under Section 6A (1) and 2 of the E.C. Act 1955, though he was not authorised to do so, not being notified to act so in terms of clause 27 of the Control Order, 1985.
30. Though in the Counter filed by the Opposite Party Nos.4 & 5, a stand has been taken as to doing so on being so requested by the Assistant Agriculture Officer-cum-Fertiliser Inspector, Lahunipada, but there is no such provision under the Control Order, 1985 or under the Act, 1955 for sub- delegation of power to act as the Inspector as defined under clause 2(l) read with clause 27 of the Control Order, 1985.
31. Law is well settled that a valid seizure is a sine qua non for initiating confiscation proceeding and passing order thereof. In Dipak Saha (supra), this Court, relying on the judgment of the Supreme Court, held that since the Police Officer made the search and seizure de hors the provisions under the PDS (Control) Order, 2002, though he was not authorised to make seizure of the so called PDS kerosene, the seizure itself being illegal, the proceeding under Section 6(A) of the E.C. Act is unsustainable. Paragraphs- 2,6, 8 to 10 of the said Judgment, being relevant, are reproduced below; W.P.(C) No.24289 of 2012 Page 34 of 42
"2. The petitioner has knocked at the door of this Court by filing the present writ petition, by virtue of which he is praying to quash the proceeding in E.C. Misc. Case No.39 of 2009 pending in the Court of Collector, Balasore initiated under Section 6-A of the Essential Commodities Act and to release the vehicle (tanker) bearing registration No. WB-11B- 1692. Petition was contested by the opposite parties.
6. Now the only points to be considered are whether a police officer is competent to seize P.D.S. kerosene along with the tanker on suspicion that the said kerosene was to be sole in black market and whether on the basis of that seizure, confiscation proceeding under Section 6(A) can be initiated.
8. In the decision Kailash Prasad Yadav (supra), the Apex Court in reference to a case under Section 6(A) of the E.C. Act, held that valid seizure is a sine qua non for passing an 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 under Section 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 seizure 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 W.P.(C) No.24289 of 2012 Page 35 of 42 view taken by Patna High Court in the case of Rama Chandra Ansari (supra).
9. In the present case since the police officer has made the search and seizure dehors the aforesaid P.D.S. (Control) Order, 2002 and he was not authorized to make seizure of the so called P.D.S., kerosene the seizure itself being illegal, the proceeding under Section 6(A) of the F.C. Act cannot sustain.
10. Accordingly, the proceeding in E.C. Case No.39 of 2009 pending in the file of learned Collector, Balasore is hereby quashed. The tanker bearing registration No. WB-11B-1692 be released in favour of the petitioner forthwith on proper ownership."
(Emphasis Supplied)
32. In a recent judgment, the coordinate Bench in Sarat Kumar Swain (supra) took a similar view. Paragraphs- 20 to 23 of the said judgment, being relevant, are extracted below.
"20. On perusal of the notification dated 29.03.2008, it appears that the said notification had been issued in exercise of the power conferred by clause-23(a) of the OPDS Control Order, 2008 by the State Government and on further scrutiny it appears that initially no Police Officer was included under the said notification accordingly, the judgment of the coordinate Bench of this court in Tapan Kumar Samanta vrs. Collector-cum-District Magistrate, Balasore and others (supra) has been correctly decided. However, since the notification dated 29.03.2008 reveals that Police Officer not below the rank of Inspector has been included w.e.f. 13.05.2010, therefore, keeping in view the said notification the conduct of the Police Officer in the present case is to be examined. Before examining the facts of the present case, this Court would also like to observe W.P.(C) No.24289 of 2012 Page 36 of 42 that the judgment relied upon by the learned counsel for the petitioner in Ananda Samal's case (supra) has also been correctly decided. On careful scrutiny of the facts narrated in the judgment, it appears that the seizure took place 01/02.09.2008 by the OIC, Anandapur Police Station. However, position of law as discussed hereinabove has changed w.e.f. 13.05.2010 and accordingly, Police Officer not below the rank of Inspector has been included in the notification dated 29.03.2008.
22. Now, again coming back to the notification dated 29.03.2008, it is clear that by virtue of an amendment Police Officer not below the rank of Inspector has been included w.e.f.13.05.2010. Thus, the truck as well as PDS commodities like Kerosene Oil involved in the present case having been admittedly seized by the Sub-
Inspector of Police, who is definitely below the rank of Inspector, the seizure made in the present case is absolutely illegal and contrary to the OPDS Control Order, 2008.
Therefore, this Court has no hesitation to come to a definite conclusion that the seizure made in this case is illegal and therefore, the proceeding under Section 6(A) of the E.C. Act, 1955 initiated pursuant to notice under Annexure-4 to the writ application is also void and non-est in the eyes of law. Above view of this Court also gets support from the judgment of the Hon'ble Supreme Court in Kailash Prasad Yadav (supra) wherein the Hon'ble Supreme Court has held that valid seizure is a sine qua non for passing an order of confiscation of property and also finding of the Hon'ble Supreme Court in Nanda Kishore Singh (supra) wherein seizure was made by a person not competent to seize the essential commodities and as such, said seizure being illegal, the proceeding under Section 6(A) of the E.C. Act is not sustainable in law.
23. In such views of the matter, this Court has no hesitation to hold that the seizure conducted in the present case by S.I. of Police is illegal and accordingly, the proceeding initiated under Section W.P.(C) No.24289 of 2012 Page 37 of 42 6(A) of the E.C. Act and by the licensing authority and the notice under Annexure-4 are illegal and void and accordingly, the notice under Annexure-4 as well as the entire proceeding bearing E.C. No.42 of 2011 under Section 6(A) of the E.C. Act, initiated by the Collector, Ganjam-Opposite Party No.2, are hereby quashed."
(Emphasis Supplied)
33. In State of Orissa-vs. Managobinda Sahoo (supra), the Coordinate Bench held as follows;-
"5. Considering the submissions made by the learned counsel for the Vigilance Department, I am afraid that since admittedly, the investigation of the case had been conducted by the P. W. 7 who was a party to the vigilance raid and a witness for the prosecution. In this respect, in my view, the trial Court has correctly placed reliance upon the judgment in the case of Jamuna Chaudhary (supra) and come to conclude that investigation of a case by a witness is not desirable. inasmuch as, there is possibility of tainted investigation in order to bolster up a prosecution case so as to create evidence which may unable the Court to record a conviction. The Hon'ble Supreme Court in paragraph-II of the aforementioned case has clearly laid down that "the duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth."
This principles of law is embedded in order to ensure that the rule of law survives and an accused is entitled in law to a fair and impartial investigation. Therefore, in order to ensure the fair and impartial investigation, it also must be ensured that investigation is carried out by a person who is absolutely impartial, unbiased and unmotivated. The rule of law makes it unthinkable to allow a witness to a crime to himself/herself became the investigator into the said crime. Therefore, the requirement of the Investigating Officer to bring out the real unvarnished truth" would never been possible by the said Investigating Officer who is also a witness to the said proceeding.
W.P.(C) No.24289 of 2012 Page 38 of 42
Apart from the above, it is also a fact that an Investigating Officer into an offence under the Essential Commodities Act, must also record the statement of the members of the Raiding Party and, therefore, if a member of the said Raiding Party himself becomes the Investigating Officer, it would give rise to a situation where the Investigating Officer would be recording his own statement as a witness to the alleged came and this by no stretch of imagination, can be permissible in law."
(Emphasis supplied)
34. In Krushna Chandra Sahoo (supra), the Division Bench of this Court, relying on the Judgments of Supreme Court, held as follows;-
"10. When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. Vide State of Bihar v. J.A.C. Saldanna AIR 1980 SC 327, Haresh Dayaram Thakur v. State of Maharashtra and Ors. MANU/SC/0363/2000: AIR2000SC2281; Prabha Shankar Dubey v. State of Madhya Pradesh AIR 2004 SC 486 and Indian Banks' Association v.
Devkala Consultancy Service MANU/SC/0355/2004: AIR 2004 SC 2615."
(Emphasis supplied) W.P.(C) No.24289 of 2012 Page 39 of 42
35. In K.L. Subbayya (supra), the Supreme Court held as follows;-
"3.In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with."
36. Admittedly, the Notification dated 10th December, 2000 has been made in exercise of power conferred by Clause- 27 of the Control Order, 1985, vide which all the Assistant Agriculture Officers so also Junior Agriculture Officers were notified to be the "Inspector of Fertilisers" for the purpose of Control Order, 1985. So far as the Notification dated 7th August, 2004, the same has been made in exercise of power conferred by clause (s) of Section 2 of the Code of Criminal Procedure, 1973 regarding "Police Station" to register a case for committing any offence, including offences under the E.C. Act, 1955 (10 of 1955). That apart, the learned State Counsel (Vigilance) also failed to produce the Gazette Notification in proof of notifying the said Notification dated 10th December, 2000. However, even if it is presumed to have been duly notified in the Gazette, this Court is of the view that the stand of the State that in view of the notification dated 07.08.2004 W.P.(C) No.24289 of 2012 Page 40 of 42 the Opposite Party No.4 was competent to exercise powers of Inspector, in terms of Clause-28 of the Control Order, 1985, is misconceived and untenable.
37. Law is well settled that if the statute provides for a thing to be done in a certain way, the same is to be done in that way or not at all. Other methods or mode of performance are impliedly and inevitably forbidden. Law is also well settled that if the power has been vested with a particular Authority, he has to exercise the same or not at all.
38. However, from the discussions made above so also settled position of law and the notification made by the State Government under the Fertiliser Control Order, 1985 regarding the power of the Inspector regarding search and seizure and initiation of confiscation proceeding, this Court is of the view that the Opposite Party No.4, who has also been arrayed as Opposite Party No.5 by name, is incompetent to enter into the premises of the Petitioner for the purpose of search and seizure so also initiation of confiscation proceeding in terms of Section 6A of the Act, 1955. This Court is of further view that very initiation of the confiscation proceeding being defective and without authority, deserves interference. Accordingly, it is held that the Opposite Party No.4 has no jurisdiction to conduct search and seizure under the Control W.P.(C) No.24289 of 2012 Page 41 of 42 Order, 1985. Hence, the report under Annexure-1 so also the confiscation proceeding, initiated against the Petitioner based on the said report, registered as Misc. Case No.43 of 2012, and the order passed by the Authority dated 29.08.2012 in Misc. Case No.43 of 2012 are hereby set aside.
39. With the said observation and direction, the writ petition stands allowed and disposed of. No order as to cost.
...............................
S.K. MISHRA, J.
Orissa High Court, Cuttack.
Dated, the 24th December, 2024 / Mona Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack.
Date: 13-Jan-2025 10:22:33 W.P.(C) No.24289 of 2012 Page 42 of 42