RAJAN KUMAR @ RAJAN LOHANI, SON OF PREMA NAND, RESIDENT OF PARNADI MANPUR, POLICE STATION MOFASSIL, DISTRICT GAYA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The primal question involved in both these cases, before the Full Bench, is whether the very entry, search and seizure conducted illegally and unauthorisedly, can form the basis for lodging an F.I.R. leading to prosecution and whether Court can quash the prosecution at the threshold on the ground of illegality in entry and consequential search and seizure, which form the basis for instituting the F.I.R. Equally in issue is the conflict of judgments between Division Bench in the case of Madhusudan Prasad Vs. The State of Bihar, being order dated 25.11.1981 in Cr.W.J.C. No.212 of 1981 , and in the case of Ramchandra Pansari Vs. The State of Bihar 1988 PLJR 623 and Sanjay Kumar Jaiswal Vs. The State of Bihar 1990 PLJR 416 , which judgments are on the same issue and in conflict with the judgment in the case of Madhusudan Prasad (supra) holds that the prosecution cannot be quashed merely on the ground of initial illegality in any entry, search and seizure, whereas the other two cases hold to the contrary.

(2.) I may, now, refer to the facts of the two cases as before the Full Bench. In Cr. Misc. No.11852 of 1994 (Rajan Kumar @ Rajan Lohani Vs. The State of Bihar) , an inspection was conducted on 28.07.1981 at 7 PM at the business premises of M/s Kisan Ghar, registered dealer in fertilizer, by the Supply Inspector, Gaya and, on basis of the said inspection Deo Rai, the Supply Inspector, Gaya lodged an F.I.R. on 29.07.1981 at about 7:30 PM with the Gaya Kotwali Police Station, giving rise to Gaya Kotwali P.S. Case No.161 of 1981, dated 29.07.1981, instituted under Section-7 of the Essential Commodities Act against Madhusudan Prasad, Kishori Prasad and the petitioner-Rajan Kumar @ Rajan Lohani, allegedly, the employee of M/s Kisan Ghar. The informant, the Supply Inspector, alleges that on inspection of the fertilizer business premises, it was found that the display board, displaying the stocks and prices of fertilizers, was found dated 26.06.1981, instead of 28.07.1981 and the books of accounts were not produced for inspection. Therefore, in view of Entry-34 in Schedule-1 of the display order, being fertilizer as inserted therein vide notification no. GSR 15 dated 08.05.1980 to the Bihar Essential Articles (Display of Stocks and Price) Order, 1977 (hereinafter in brevity Display Order), being an order issued by the State Government in exercise of powers delegated to it by the Central Government under the Essential Commodities Act, had been violated. Pursuant to the F.I.R. lodged, the Police, after investigation, submitted a charge-sheet on basis whereof by order dated 07.02.1984, the Chief Judicial Magistrate, Gaya was pleased to take cognizance of the offence punishable under Section-7 of the Essential Commodities Act and transferred the case for trial to S.D.J.M., Gaya, being G.R. No.1668 of 1981 (Tr. No.669 of 1984), where the matter is pending.

(3.) Here, it may be noted that the inclusion of Entry-34 fertilizer in the Display Order has already been held to be ultra vires by Division Bench of this Court in the case of Madhusudan Prasad Vs. The State of Bihar, being Cr.W.J.C. No.212 of 1981, disposed of on 25.11.1981 and this issue has attained finality. Display order, thus, has no application in relation to the present case.