IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.988 of 2007 VIJAY KUMAR @ VIJAY SINGH SON OF TARO SINGH, RESIDENT OF VILLAGE DIBAR, P.S. PANDARAK, DISTRICT PATNA …PETITIONER Versus STATE OF BIHAR …OPPOSITE PARTY ----------- 8 15.5.2009 Heard counsel for the petitioner and the State. In the instant revision application the petitioner prays for quashing the order dated 1.2.2007 whereby the learned S.D.J.M., Barh has taken cognizance of offence under section 7 of the E.C.Act bearing G.R.No.968 of 2006 arising out of Pandarak P.S. Case No.102 of 2006. Learned counsel for the petitioner submits that Bihar Trade Articles (Licenses Unification) Order, 1984 was not in force when the F.I.R. was lodged on 16.9.2006. He further submits that the aforesaid Unification Order was superseded by Public Distribution System(Control) Order, 2001 promulgated by the Central Government. Clause 7 of the aforesaid Order provided for issuance of licensing order as per paragraph 5 of the annexe to the order by the State Government. He submits that as per Clause 10 of the P.D.S.Order, 2001 an authority authorized by the State Government shall be competent to make search and seizure. He submits that the fair price shop order 2007 was notified by the Government of Bihar making provisions relating licenses for fair price shops. He submits that the State Government signed an order for search and seizure on 25.2.2006 which was gazetted on 25.5.2007. 2 The Bihar Trade Articles (Licenses Unification) Order, 1984 was enacted with an object of controlling the trade of various essential commodities including food grains, pulses, edible oil, sugar etc. In the year 2001 in order to bring an uniformity the Central Government brought an order known as Public Distribution System (Control) Order, 2001 (hereinafter referred to as “the Control Order,2001) particularly for controlling trade/business of the PDS dealer. The Control Order 2001 is not a licensing order nor specifies the authority who will conduct the search and seizure. It is relevant to state here that the Unification Order, 1984 brought by the Government of Bihar provided both for search and seizure as well as various aspects relating to issuance of licence, its renewal, cancellation, format etc. However, clauses 7 of Control Order 2001 empowered the State Government to issue licensing order. Similarly Clause 10 of Control Order 2001 authorized State Government to issue notification in respect of authorities who would be competent to make search and seizure. This court in the case reported in 1992 P.L.J.R.669 and in the case of reported in 1998(2)P.L.J.R. 330 have held that if search and seizure is without due authority of law then prosecution under section 7 of the E.C.Act for violation of an order made under section 3 of the E.C.Act is illegal. The search and seizure has to be made either under the Licensing Order or any order specifically notified and gazetted as required under the authority of law. The State Government by virtue of conferment of power 3 KHAN under clause 10 of the 2001 Order issued notification specifying personnel who would be competent to make search and seizure. The aforesaid notification was signed on 26.5.2006 and notified in official gazette on 20.2.2007. The Government of Bihar by virtue of power conferred under section 3 of the E.C. Act read with clause 10 of the 2001 Order issued fair price shop Order 2007 governing licenses in February 2007 only. In absence of necessary notification till February 2007 there was no valid sanction in law to prosecute a dealer under the 2001 Order for violation of the Order 2001. Coming back to the instant case, the F.I.R. in question was instituted on 16.9.2006 and the impugned order taking cognizance was passed on1.2.2007. The institution of prosecution on 16.9.2006 was itself bad on account of lack of valid sanction due to non- promulgation of licensing order contained in Fair Price Shop Order 2001 which was promulgated only on 20.2.2007 and as such the same is quashed. In the result, this application is allowed. (S.P.Singh,J)