H.S. BHALLA, J. W.P.(C ) NO.22190 OF 2010 (Decided on 15.02.2011) M.CHABINDRA PATRO ……… Petitioner. .Vrs. COLLECTOR & DIST. MAGISTRATE, GANJAM & ORS. ……… Opp.Parties. ESSENTIAL COMMODITIES ACT, 1955 (ACT NO.10 OF 1955) – Ss.3 & 6-A. For Petitioner - M/s. K.Panigrahi & S.R.Debata. For Opp.Parties- Addl. Govt. Advocate. H.S.BHALLA, J. Heard counsel for the petitioner and learned Addl. Government Advocate for the State. 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 initiated by the Collector, Ganjam in EMC Case No.60 of 2010. The petition was contested by the opposite parties. 3. The facts of the case in nutshell are that the petitioner is an Agent Wholesaler of Kerosene Oil and proprietor of Gurumurty Oil Co., Surada in the district of Ganjam. He is a registered owner of a tanker bearing Regd. No.OR-02-AG-7373. On 28.7.2010 the petitioner had purchased 12,000 liters of Kerosene Oil from O.I.C.L., Bhubaneswar Depot vide TIN No.21661903091 and was transporting 8000 Liters of Kerosene of sub- wholesaler E.Bangali patro of Badagada in his aforesaid tanker. On the way from Surada to Badagada the said vehicle met with an accident and some cattle died and a case under Section 279/429, IPC was registered bearing Badagada P.S. Case No.72 of 2010. During the course of investigation, the S.I. of Police, Badagada Police Station registered a case under Section 7 of the E.C.Act vide Badagada P.S.Case No.74(10) of 2010 corresponding to G.R.Case No.105 of 2010 of the court of learned J.M.F.C., Surada. The S.I. of Police also seized 8000 liters of kerosene oil as wellas the said tanker and released the kerosene on zimanama to the Marketing Inspector, Surada for distribution in public distribution system. The petitioner thereafter moved the learned J.M.F.C., Surada by filing a petition under Section 457, Cr.P.c. to release the tanker. During the course of hearing of the said petition before the learned J.M.F.C., Surada, it has come to the notice of the learned J.M.F.C. that a confiscation proceeding under Section 6-A of the E.C.Act has been initiated before the Collector, Ganjam for the self- same offence. Accordingly, learned J.M.F.C., Sorada rejected the petition filed by the petitioner under Section 457, Cr.P.C. The Collector in the said confiscation proceeding after perusing the F.I.R. and other documents by order dated 4.10.2010 directed the Investigating Officer to dispose of the seized kerosene under Public Distribution System and deposit the sale proceeds in treasury and also directed the I.O. to file final form and prosecution report. The present writ petition has been filed to quash the proceeding in E.M.C. Case No.60 of 2010. 4. Learned counsel appearing for the petitioner submitted that as per Clause 23 of the Orissa Public Distribution System (Control) Order, 2008 (hereinafter referred as “P.D.S. (Control) Order, 2008)’ the Licensing authority or any other officer authorized by the Government in that behalf can only search and seize any essential commodity in consonance with the provisions contained under Section 102, Cr.P.C. The Government in Food Supplies and Consumer Welfare Department Notification No.7450-FS.IC.2/2008 dated 29th March, 2008 specified the officers authorized to exercise the power conferred under Section 23 of the P.D.S. (Control) Order, 2008. No police personnel is so specified. So, according to the learned counsel for the petitioner, the so-called P.D.S. kerosene along with the truck having not been seized by any of the officers authorized to seize the same, the seizure was illegal and, as such, the proceeding initiated under Section 6(A) of the E.C. Act could not stand and consequently, the impugned order passed by the Collector, Ganjam would also fail. In support of his submission, he relied on the decisions in the Case of Kailash Prasad Yadav and another v. State of Jharkhand, (2007) 37 OCR (SC), 586, Nanda Kishore Singh v. State of Bihar, Patna High Court, Crimes Vol. VIII, 1990 (2), 744, Sankar Lalmaniyar and another v. State of Andhra Pradesh, 2004 (2) ALD (Crl.), 314 (A.P.) and Ram Chandra Pansari v. State of Bihar, Patna High Court Crimes Volume-VIII, 1988 (2), 963. 5. On the other hand, learned Addl. Govt. Advocate contended that as per Section 102 (1) of Cr.P.C. any police officer can seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances, which creates a suspicion of commission of any offence. No notification under Clause 23 of P.D.S. (Control) Order, 2008 vesting power to a police officer to make search and seizure is required. It is further submitted that since the conduct of the driver created suspicion of commission of an offence under Section 6 of the E.C.Act, the police officer rightly seized the kerosene along with the tanker. Learned Addl. Govt. Advocate further submitted that P.D.S. (Control) Order, 2008 came into force with effect from 19.3.2008 and the notification under clause 23 of the said Order was issued on 29.3.2008. The said notification can not over ride the E.C. act. 6. Now the only points to be considered are whether a police officer is competent to seize P.D.S. kerosene along with the truck on suspicion that the said kerosene was to be sold in black market and whether on the basis of that seizure, confiscation proceeding under Section 6(A) can be initiated. 7. In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955), read with Paragraph 5 of the Annexure to the Public Distribution System (Control) Order, 2001, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (i), No.434, dated the 31st August, 2001 and the notification of Government of India, in the Ministry of Agriculture and Irrigation (Department of Food), GSR 800, dated the 9th June, 1978, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (i), dated 17th June, 1978 and the notifications in the Ministry of Industry and Civil Supplies (Department of Civil Supplies and Co-operation) No.S.O.681 (E) and S.O. 682 (E) both dated the 30th November, 1974, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (i), dated the 30th November, 1974, the State Government made the O.P.D.S. (Control) Order, 2008, Clause 23 of the said order reads as follows:- 2 “23. Power of entry, search and seizure etc. (a) – The Licensing authority or any other officer authorized by Government in this behalf, may, with such assistance, if any, as he thinks fit. (i) require the owner, occupier or any person in charge of the place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any license issued there under has been, is being or is about to be committed, to produce any books, accounts or other documents showing transactions relating such contravention : (ii) enter, inspect or break open any place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any licence issued there under has been, is being or is about to be committed; (iii) take or cause to be taken extracts from or copies of any documents showing transactions relating to such contravention which are produced before him/her; (iv) test or cause to be tested the weight of all or any of the essential commodities found in any such premises’ Provided that in entering upon and inspecting any premises the persons so authorized shall have due regard to the social and religious customs or the persons occupying the premises. (v) search, seizure and remove the stocks of the essential commodities and the packages, coverings, animals vehicles, vessels or other conveyance used in carrying the said essential commodities in contravention of the provisions of this order or of the conditions in any licence issued there under and thereafter take or authorize the taking of all measures necessary for securing the production of the essential commodities and the packages, coverings, animals, vehicles, vessels or any other conveyances so seized in a Court and for their safe custody pending such production. (b) The provisions of Section 100 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.” Pursuant to the above provision, the State Government in their Food Supplies and Consumer Welfare Department vide notification dated 29.3.2008 specified the officers who can exercise the power of entry, search and seizure etc., but no police officer has been so specified. This notification having been issued in exercise of the powers conferred by sub-clause 9a) of Clause 23 of the P.D.S. (Control) Order, 2008 as stated earlier it can not be said that it is only an executive instruction. Accordingly, the submission of learned counsel for the petitioner in this regard can not be sustained. 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 order 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 can not 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 3 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 seize 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 can not be invoked and search and seizure appears to be not valid for want of jurisdiction, so also the view taken by Patna High Court in the case of Rama Chandra Ansari (supra). 9. In the case at hand since an S.I. of Police who was not authorized to make seizure, seized the so called P.D.S., kerosene, the seizure itself being illegal, the proceeding under Section 6(A) of the E.C.Act can not sustain. 10. Accordingly, the E.M.C. Case No.60 of 2010 of the file of learned Collector, Ganjam is hereby quashed. Since the PDS Kerosene has been sold in Public Distribution System, the proportionate amount be paid to the petitioner. Consequentially, the interim order passed by the Collector also stands quashed. 11. The writ petition is disposed of. No cost. Writ petition disposed of. 4