Orissa High Court
Rabinarayan Sahu vs Collector & District Magistrate on 18 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 126, (2019) 75 OCR 690
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK
W.P.(C )No.12363 OF 2010
(An application under Article-226 & 227 of the Constitution of India )
AFR
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Rabinarayan Sahu Petitioner
-versus-
Collector & District Magistrate,
Ganjam & another Opp. Parties
For Petitioner : M/s. Deepali Mohapatra &
Shri S. Parida
For Opp. Parties : Shri S.N. Mishra, Addl.
Govt. Advocate
Date of Hearing: 12.07.2019
Date of Judgment: 18.07.2019
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. This writ petition involves a request for quashing of a proceeding
vide EMC No.24 of 2010, a proceeding under the Essential Commodities
Act read with Orissa Kerosene Control Order, 1993.
2. Short background involving the case is that on the night of
24/25.2.2010, the raiding party under the leadership of S.I, Aska when were
on duty, the driver namely Naba Mohanty driving truck bearing Regd.
No.OR-07-T-4077 belonging to the petitioner was coming from K.S Nagar
side moving towards Aska, the raiding party detained the vehicle involved on
the premises of transportation of kerosene oil unauthorisedly. The S.I.,
Aska after seizure of the truck took the truck with the driver to the police
station, arrested the driver as a consequence of such search and seizure
submitted an FIR vide Annexure-1. Seizure list was prepared vide
Annexure-2. On the basis of F.I.R, a case was registered involving the
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petitioner and his driver under Section 7 of the Essential Commodities Act
for violation of provision at Section 3 of the Essential Commodities Act and
also the provisions of the Orissa Kerosene Control Order for initiation of
proceeding under the provisions mentioned therein.
3. Challenging the initiation of such proceeding, filing the writ
petition, Miss Mohapatra, learned counsel for the petitioner contended that
for the involvement of a search and seizure by incompetent persons and the
search and seizure remaining contrary to the provisions contained in Orissa
Kerosene Control Order, the search and seizure both remain bad. Miss
Mohapatra also contended that the proceeding initiated also becomes bad
for the reason of a proceeding undertaken through repealing provision
involving Kerosene Control Order which has been repealed on introduction
of Orissa Public Distribution System (Control) Order, 2008. While seeking
quashing of the proceeding vide EMC No.24 of 2010. Miss Mohapatra,
learned counsel for the petitioner also attempted to satisfy this Court on the
merit involving the matter. In support of her such contention Miss
Mohapatra also relied on a decision of this Court in the case of Rajendra
Prasad Gupta Vs. Collector and District Magistrate Balasore and others
in W.P.(C ) No.12796 of 2009 disposed of on 24.12.2009 and reported in
2010 (1) OLR 201.
4. In his opposition, Shri S.N. Mishra, learned Addl. Govt. Advocate
while opposing the contentions raised by the petitioner with regard to merit
involving the case, referring to the Kerosene Control Order 1993 particularly
the notification dated 7.7.1994 contended that for the prescription therein, at
the minimum, search and seizure should have been undertaken by a police
officer not below the rank of Inspector. He, therefore, not disputed the
contentions being raised by Miss. Mohapatra that the search and seizure
become bad for the undertaking of such exercise by Sub-Inspector.
5. Considering the rival contentions of the parties and the pleading
as well as the documents available herein, more particularly, the FIR vide
Annexure-1, this Court finds the F.I.R involving the initiation of the Essential
Commodities proceeding while the FIR though filed by Sub-Inspector, Aska
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P.S but there also remains no dispute that search and seizure are made by
the S.I., Aska. It is at this stage, looking to the prescription made in
Notification dated 7.7.1994, being repealed and further revived through the
Orissa P.D.S Control Order, 2008, this Court finds the notification prescribes
action under Orissa P.D.S Control Order, 2008 should be undertaken by a
Police Officer not below the rank of Inspector. The F.I.R at Annexure-1 and
the seizure list at Annexure-2 since made by a Sub-Inspector, this Court
finds Miss Mohapatra, learned counsel for the petitioner is justified in making
a claim that both the Search and Seizure are made by person unauthorized
to do so.
6. In the circumstance, this Court finds since the Essential
Commodity proceeding vide EMC No.24 of 2010 is based on a search and
seizure by an incompetent person, the proceeding vide EMC No.24 of 2010
stands vitiated.
7. It is here taking into consideration the decision of this Court vide
2010 (1) OLR 201 going through the judgment indicated herein this Court
finds the point involved here is also a point of consideration in the cited
decision and the decision taken therein has direct application to the case at
hand.
8. In the result, this Court while declaring the process involving
search and seizure becomes bad as a consequence declares Notice
involving EMC No. 24 of 2010 becomes bad and accordingly declares the
same invalid.
9. In the result, the writ petition succeeds. No cost.
Biswanath Rath,J.
Orissa High Court, Cuttack The 18th July, 2019/sp,pa 4