Patna High Court
Radha Kant Mishra vs State Of Bihar And Anr. on 10 March, 2004
Equivalent citations: 2004(1)BLJR722
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. This application has been filed by the petitioner for quashing the FIR of Bisfi P.S. Case No. 4/2003 for the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the E.C. Act).
2. FIR of Bisfi P.S. Case No. 4 of 2003 was filed by Sri Esidor Soren, the Subdivisional Welfare Officer, Benipatti, Madhubani. The informant was directed by the Subdivisional Officer, Benipatti by his Memo No. 18 dated 11.2.2003 for lodging of a formal FIR against the petitioner. The villagers of Simri Gram Panchayat filed a petition before the Muhia. Simri Gram Panchayat stating therein that they are tagged with the P.D.S. Shop of Radha Kant Mishra (petitioner), the retail dealer in essential commodities. They were not provided with ration allotted in B.P.L. Annapurna and Antoyadaya Scheme. They also alleged that the ration was being sold in the black market by the P.D.S. dealer. Lastly they also prayed to enquire into the matter and allow them to be tagged with the other P.D.S. dealer. The Muhia forwarded this letter to the Subdivisional Officer, Benipatti who directed the Subdivisional Welfare Officer, Benipatti to hold an enquiry into the matter.
3. The Subdivisional Welfare Officer, Benipatti went to Simri village and enquired into the matter and in course of enquiry he found the alleged irregularity committed by the petitioner. He also went on the PDS Shop of the petitioner in his absence and recommended for the suspension and cancellation of the PDS Shop licence of the petitioner. On submission of the enquiry report the Subdivisional Officer, Benipatti directed the Subdivisional Welfare Officer, Benipatti to file a police case in this regard. The petitioner has prayed for quashing the FIR on several grounds. The main submission in support of his application is that on the face of the FIR no offence whatsoever is made out. Secondly it is submitted that the Subdivisional Welfare Officer, Benipatti is not entitled to make a search or seizure or to file FIR on the basis of such enquiry under the Essential Commodities Act.
4. Under the Bihar Trade Articles (Licences Unification) Order, 1984 which is an order issued under the E.C. Act, there is provision for entry, search and seizure etc. Clause 30 of the Unification Order specifically confers power for entry, search and seizure only upon the officer who have been specifically authorised to do so by the State Government. The list of such officers who have been so authorised has been mentioned under Clause 30 of the Unification order. The name of Block Subdivisional Welfare Officer is not included in the list of such officers who have been authorised for entry, search and seizure and also for instituting FIR for commission of offence under Section 7 of the E.C. Act or for confiscation proceeding under Section 6-A of the Act.
5. The counsel appearing for the State has filed a counter affidavit. Though there was a specific direction to the State Counsel to file counter affidavit oh the specific point whether Subdivisional Welfare Officer is authorised under Clause 30 of the Unification Order for search seizure or entry. The State counsel has not made any specific submission on this point:
Clause 30 of the Unification Order enumerates by designation an officer who has been vested with the power of entry, search and seizure, the provision being prohibitory must be deemed to be mandatory." The name of Subdivisional Welfare Officer is no where mention under Clause 30 of the Unification order.
6. The petitioner in order to substantiate his submission has relied on some decisions of this Court reported in 1992 (1) PLJR 716; 1993 (2) BLJR 1167; 1998 (1) PLJR 289; 1998 (2) PLJR 249 and 1998 (2) PLJR 330. In all these decisions it has been held that unless the name of any officer is specifically enumerated under Clause 30 of the Bihar Trade Articles (Licenses Unification) Order, 1984, any prosecution initiated on the basis of the report of such officer is bad and illegal. Such criminal proceeding must be quashed as it amounts to abuse of the process of the court. There is force in the submission of the petitioner and the present case is fully covered by the decisions referred by the petitioner.
7. In the aforesaid facts and circumstances of the case the FIR of Bisfi PS Case No. 4 of 2003 is hereby quashed. This application is accordingly allowed.