IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15244 of 2008 GIRDHARI LAL, son of late Satya Narain Prasad, resident of Akhara Ghat Road, P.S.-Town, Distt.-Muzaffarpur, proprietor of Ashok Grain Agency, Akhara Ghat Road, Muzaffarpur. Versus THE STATE OF BIHAR ----------- 4. 15.03.2011 Heard learned counsels for the petitioner and the State. The petitioner has challenged the order dated 5.2.2008 whereby the learned S.D.J.M. (East), Muzaffarpur, has taken cognizance under Sections 420, 120(B), 379, 411 and 171(E) of the Indian Penal Code and Section 7 of the Essential Commodities Act. Through I.A. No. 393 of 2011, the petitioner has also challenged the order dated 15.04. 2008 whereby the charges have been framed under Sections 420, 120(B), 379 411, 171(E) of the Indian Penal Code and Section 7 of the Essential Commodities Act. The I.A. is allowed. The prosecution allegation in short is that on 24.09. 2007, the Sub-Inspector of Police, Bochaha Police Station, prepared a seizure list on seizure of the truck with 250 bags of Urea fertilizer. The challan of loaded fertilizer was issued by Ashok Grain Agency, Akhara Ghat Road, Muzaffarpur, of which the petitioner was the proprietor and challan was issued in the name of Ganesh Traders, Shahar Ghat on which it is mentioned organic manure 250 bags whereas on the truck Kishan Urea of National Fertilizer Company was seized. On the basis of the aforesaid seizure, Bochaha P.S. 2 case No. 150 of 2007 was registered under Sections 420, 120(B), 379, 411, 171(E) of the Indian Penal Code and Section 7 of the Essential Commodities Act. It is submitted by learned senior counsel for the petitioner that the accusation in F.I.R. does not prima facie constitutes any of the offence as alleged under Sections 420, 120B, 379, 411 and 171E of the Indian Penal Code. This contention of the learned senior counsel of the petitioner has not been controverted by the learned A.P.P. for the State. The contention of learned Senior counsel has substance. It is further contended that basically the accusation alleged only constitutes the offence under Section 7 of the Essential Commodities Act as violation of the Fertilizer (Control) Order has been alleged. It is contended that Clause 28 of the Fertilizer (Control) Order gives power to the Inspector to enter upon and search any premises where any fertilizer is manufactured or stored or exhibited for sale, if he has reason to believe that any fertilizer had been or is being manufactured, sold, offered for sale, stored, exhibited for sale or distributed contrary to the provisions of this order. Under Clause 27 of the Fertilizer (Control) Order, the State Government, or the Central 3 Government is empowered to appoint such a number of persons, as thinks it necessary, to be inspectors of fertilizers for the purpose of this Order, and may, in any such notification, define the limits of local area within which each such inspector shall exercise his jurisdiction”. Annexure-2 has been brought on record which suggest that under Clause 27 of the Fertilizer (Control) Order, the State Government has notified its officers, and vested the power under Clause 27 of the Fertilizer (Control) Order to exercise the power under Section 28 and those officers are as follows:- 1. Joint Agriculture Director (Production), Bihar, Patna. 2. All Joint Agriculture Directors. 3. All District Officers. 4. All Sub Divisional Officers. 5. All District Agriculture Officers. 6. All Divisional Agriculture officers 7. All Divisional Agriculture Officers. 8. All Project Executive Officers. 9. All Block Development Officers. 10. Those all Block Agriculture Officers (where there is no deputation of P.V.C.). Hence, it is also noted that after notification as contained in Annexure-2 no new notification has been issued by the State Government. 4 The informant, the Sub-Inspector of Police, was not empowered to make such seizure, hence, on this ground alone the entire prosecution is vitiated and in this connection reliance has been placed in the case of Surendra Prasad & Another versus the State of Bihar, reported in 1985 PLJR 1077 where it was held that seizure was a sine qua non for starting or continuing the prosecution. Similar view was taken in the case of Sanjay Kumar Jaiswal versus the State of Bihar & Ors reported in 1990(1) PLJR, 416 as similar provisions also used to prevail with regard to seizure under Clause 30 of the Bihar Trade Articles (Licenses Unification) Order, 1984. Clause 30 of the Bihar Trade Articles (Licenses Unification) Order authorized certain Officers to make search and seizure and when the seizures were not made by the specified authority, authorized under the Control Order such prosecutions have been quashed in different proceedings. Admittedly the authorization as contained in Annexure-2 does not reflect that the informant was authorized to make search and seizure. It is well settled law, as has been observed in the case of Hukam Chand Shyam Lal Vs. Union of India & Others reported in 5 A.I.R. 1976 S.C.C. 789. Paragraph 18 of the same reads as follows: “It is well settled that where the power is required to be exercised by certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden.” Hence, when the Fertilizer (Control) Order prescribes the mode of initiation to make search and seizure in particular manner the search & seizure has to be executed in that particular manner and not at all. In view of the aforesaid discussions, the very search and seizure was made by a Block Agriculture Officer appears to be unauthorized make search and seizure which hits the root of the prosecution case. The order of cognizance dated 05.02.2008 as well as the order framing charges dated 15.4.2008 in Bochaha P.S. Case No. 150 of 2007 are hereby quashed. Accordingly, this quashing application is allowed. Ravi/- (Dinesh Kumar Singh, J.)