IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.57527 of 2007 BIRJU YADAV, SON OF RAMASHRAY YADAV, RESIDENT OF VILLAGE – RAMGARWA BAZAR, P.S. – RAMGARWA, DISTRICT – EAST CHAMPARAN. ……………….. PETITONER. Versus 1. THE STATE OF BIHAR. 2. SRI SANCHIT PANDAY, SON OF NOT KNOWN POSTED AS SUPPLY INSPECTOR RAMGARWA, P.S. – RAMGARWA, DISTRICT – EAST CHAMPARAN. ……….. OPP. PARTIES. ----------- 05/ 07.07.2010 This is a petition for quashing the FIR under Section 7 of the Essential Commodities Act. The FIR has been instituted on the basis of the written report of the Supply Inspector regarding the recovery of 530 liters of Kerosene Oil from the house of Birju Yadav on 31.08.2007. It has further been alleged that regarding the said recovery the seizure list was prepared on recovery in pursuance of a raid conducted by Nageshwar Yadav, Inspector, Ramgarwa. It has further been alleged that the petitioner is not a licensee and has no statutory right for keeping the said Kerosene Oil and had kept the same for black marketing. The FIR has been instituted on 01.09.2007. Learned counsel for the petitioner submits that the Inspector seized the kerosene oil from the cattle shed to the south of the house of the petitioner and there is non compliance of Section 100 of the Cr.P.C. in search and seizure. The Police Inspector was not competent to search and seizure under the EC Act and further that if any person, below the rank of Magistrate, is going to search or seizure has to take prior permission and there is no evidence of prior permission regarding search and seizure and no signature of the petitioner has been taken on the 2 seizure list and further no case can be lodged against the private person against the EC Act and further petitioner is not a licensee under the Public Distribution System and has relied upon decisions reported in 2007 (2) PLJR 103 (Maheshwar Prasad & Anr. Vs. The State of Bihar), 2007 (2) PLJR 289 (Mahanthi Yadav & Anr. Vs. The State of Bihar), 2007 Supplementary PLJR 285 (Ajay Choudhary Vs. The State of Bihar) and 2008(3) PLJR 632 (Arun Kumar Paswan @ Arun Kumar Vs. State of Bihar). As per the allegation made in the written report, petitioner was found in possession of 530 liters of kerosene oil and is not a licensee and has kept the same for black marketing. However, it has been submitted about the non compliance of Section 100 of the Cr.P.C regarding the search and seizure and the search by police also and prayer has been sought for quashing of the FIR itself. However, Bihar Trade License Unification Order 1984 read with a Central Government G.S.R. No. 47 dated 17.10.1995, it can well be inferred that the kerosene oil comes under the definition of trade article and storage limit having been fixed and stock of kerosene oil for domestic purpose is not exceeding 20 liters and even for non domestic consumer is 15 liters and if a person is found in possession of kerosene oil in excess of 20 liters, then the statutory presumption would raise that the petitioner has stored the same for the purpose of a sale and very possession of any commodity in excess of storage limit could bring him into purview of dealer and treated as act violating the provision of Section 3 of the Essential Commodities Act and this view has been expressed in decision reported 3 in 2009 (3) PLJR 276 (Shankar Mehta Vs. State of Bihar) and has further held the view that officer above the rank of ASI is empowered to make search and seizure. The decision reported in AIR 1996 SC 2986 (State of U.P. Vs. O.P. Sharma) held that person even not a licensee in possession of trade article is liable for prosecution of trade article in excess of storage limit and comes under definition of dealer as the fact in AIR 1996 SC 2986 (State of U.P. Vs. O.P. Sharma) is that a person in possession of Soyabin oil (trade article) not having license for storage and sale of Soyabin Oil took a defence that he was not a dealer, was turned down. However, non compliance of 100 Cr.P.C even not be a ground for quashing as the question may be looked at the trial as to whether any prejudice has been caused. Moreover, the case is still at the stage of investigation and there is allegation of recovery of 530 liters of kerosene kept for black marketing. Learned counsel for the petitioner relied upon decision reported in 2007 (2) PLJR 103 (Maheshwar Prasad & Anr. Vs. The State of Bihar), however, in this case the order taking cognizance dated 23.08.2004, 20.11.2002 and 24.11.2004 was challenged on ground that a dealer under Section 31(2) of the Bihar Trade Article Unification Order 1984 are exempted as are representative of State but it was brought to notice that Bihar Trade Article Unification Order is amputated by Public Distribution System Control Order 2001 which came in effect on 31.08.2001 in which there is no exemption to dealer and however in the circumstance the court held that since the Public Distribution System Control Order 2001 has overriding effect over Bihar Trade Article 4 Unification Order 1984 and clause 10 of the Public Distribution System Control Order envisage power to search and seizure can be vested in an authority in State by the representative which was published on 25.05.2006 and since there was no authorization in favour of any authority between 31.08.2001 and 25.05.2006 and hence cognizance taken on 23.08.2004, 220.01.2002 and 24.11.2004 is not sound. However, under the present facts and circumstances the date of occurrence in the present case is 31.08.2007, the notification published on 25.05.2006 and hence under the facts and circumstances the decision reported in 2007 (2) PLJR 103 (Maheshwar Prasad & Anr. Vs. The State of Bihar) is not applicable as search and seizure under Distribution System Control Order has become workable with effect from 25.05.2006, consequent to notification under Clause 10 of the PDS order. Similarly the decision reported in 2008 (3) PLJR 632 (Arun Kumar Paswan @ Arun Kumar Vs. State of Bihar) is not applicable as it also concerns with licensee for an exemption under Section 31(2) of Bihar Trade Article Unification Order and further the decision reported in 2007 (2) PLJR 289 (Mahanti Yadav & Anr. State of Bihar) and 2007 (Supp) PLJR 285 (Ajay Choudhary Vs. The State of Bihar) is not applicable as the same concerns with the quashing of the order taking cognizance and petition for discharge whereas this petition has been filed for quashing of the FIR. However, when the case is still at the stage of investigation, I do not find that the petitioner has made any ground for quashing the FIR and hence the petition is dismissed. Kundan (Gopal Prasad, J.)