JAGDISH SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) These four petitions have been referred to the Division Bench under order no. 22 dated 17.04.2013 for authoritative pronouncement on the following issues :

(2.) Before proceeding to deal with the questions referred for authoritative pronouncement, it is necessary to notice the facts and circumstances of the case which persuaded learned Single Judge to make the reference. In Cr. Misc. No. 12313 of 2011, petitioner has prayed for quashing of the order dated 15.11.2010 passed by Sub-Divisional Judicial Magistrate, Sikrahana at Motihari in Trial No. 2337 of 2011 arising out of Kundwa Chainpur P.S. Case No. 22/09 whereunder learned Magistrate has taken cognizance of the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) and Sections 414, 120-B, 34 of the Indian Penal Code. In Cr. Misc. No. 1301 of 2011, petitioner has prayed for quashing of the order dated 1.9.2010 passed by Sub-Divisional Judicial Magistrate, Danapur in Special Case No. 165 of 1987, arising out of Danapur P.S. Case No. 284/87 whereunder learned Magistrate rejected the request of the petitioner to discharge him from the case. In Cr. Misc. No. 10287 of 2011, petitioners have prayed for quashing of the order dated 15.01.2011 passed by Sub-Divisional Judicial Magistrate, Saharsa in Special Case No. 07/2010 arising out of Bihra P.S. Case No. 103/10 whereunder learned Magistrate has taken cognizance of the offence under Section 7 of the Act. In Cr. Misc. No. 35709 of 2011 petitioner has prayed for quashing of the order dated 23.06.2011 passed by Additional Chief Judicial Magistrate, Hilsa in Hilsa P.S. Case No. 367/10 whereunder learned Magistrate has taken cognizance for the offence under Section 7 of the Act.

(3.) Perusal of the aforesaid four petitions would indicate that quashing of the order taking cognizance, refusing to discharge has been prayed for by the petitioners on the sole ground that the officer who searched, seized the essential commodity, on the basis of which case under Section 7 of the Act and other allied Sections of the Indian Penal Code was registered, had no authority/jurisdiction to search the vehicle/premises from where the commodity (fertilizer) in Kundwa Chainpur P.S. Case No. 22/09, Danapur P.S. Case No. 284/87, Hilsa P.S. Case No. 367/10) kerosene oil in Bihra P.S. Case No. 103/10) has been seized, the entire proceeding based on such illegal search and seizure is fit to be quashed as Sub-Inspector Officer in charge in Kundwa Chainpur P.S. Case No. 22/09, team constituted by S.D.O., Danapur comprising of Executive Magistrate, Block Supply Officer and Supply Inspector in Danapur P.S. Case No. 284/87, Assistant Sub-Inspector in Bihra P.S. Case No. 103/10 and Probationer Sub-Inspector in Hilsa P.S. Case No. 367/10 had no jurisdiction to search the vehicle/ premises and seize the commodity (fertilizer) in terms of Clause 27 of the Fertilizer (Control) Order, 1985 as the Sub-Inspector Officer in charge, team constituted by S.D.O., Danapur, Probationer Sub-Inspector has not been notified as Inspector under Clause 27 of the Fertilizer (Control) Order, 1985 and the order regulating trade in kerosene.