R.N. BISWAL, J. CRL.REV. NO.76 OF 2011 (Decided on 16.11.2011) NIRANJAN BEHERA ……….Petitioner. .Vrs. STATE OF ORISSA & ANR. ……….Opp.Parties. ESSENTIAL COMMODITIES ACT, 1955 ( ACT NO.10 OF 1955 ) – S.7. For Petitioner - M/s. Mahendra Ku. Das, S.Mallik, S.Rout, M.Das, J.Nayak & S.K.Das. For Opp.Parties - Addl. Govt. Advocate R.N.BISWAL,J. The facts of the case leading to filing of the revision in short is that on 20.5.2010, accused, Rajkumar Sharma loaded 250 bags of P.D.S. wheat weighing 125 quintals in the truck bearing registration No.ORY-5418 at F.C.I. depot, Ranital to deliver the same to the depot Manager, OSCSC Ltd. Keonjhar but while he was unloading the same in the godown of Tapaswini Behera of whom the petitioner is the power of Attorney holder at Ranital under Bhadrak Block, the S.I. of police Bhadrak (Rural)P.S.seized the P.D.S. wheat along with the truck and prepared seizure list in respect thereof as per Annexure-3 series and reported the incident to the I.I.C., Bhadrak (Rural) P.S. Accordingly, Bhadrak P.S. Case No.169 of 2010 was registered under Sections 407/420/411/34 of I.P.C. along with Section 7 of the E.C. Act. The matter was investigated into and charge sheet was filed thereunder, as prima facie it was found that all the accused persons, including the petitioner conspired to misappropriate the P.D.S. wheat by cheating and committing breach of trust and to screen themselves from the alleged crime, the co-accused, Santosh Kumar Marandi, the Marketing Inspector, Anandapur and Lifting Officer-in-charge, Keonjhar without having any authority directed the petitioner in writing to receive and keep the aforesaid P.D.S. wheat in his godown on the false plea that the truck developed mechanical defect wherein wheats bags were being carried. On receipt of the charge sheet, the learned S.D.J.M., Bhadrak went through it along with the entire case diary and finding a prima facie case against the accused persons including the petitioner took cognizance of the aforesaid offences, vide order dated 11.10.2010. Being aggrieved with the said order, the petitioner has preferred this revision with prayer to quash the same along with the seizure list, Annexure-3 series. 2. Learned counsel for the petitioner submits that the S.I. of police Bhadrak (Rural) P.S. is not authorized under Clause-23 of P.D.S. (Control) Order, 2008 to search and seize the P.D.S. wheat and truck. So the search and seizure being illegal, the entire criminal proceeding including the seizure of the P.D.S. wheat and the truck and the impugned order of taking cognizance deserve to be quashed. 3. On the contrary, learned Addl. Standing Counsel contends that at the time of seizure of P.D.S. wheat along with the truck, on 21.5.2011 the I.O., A.K. Rout was in- charge of Inspector Bhadrak (Rural) P.S. In terms of Clause-23 of P.D.S. (Control) Order 2008, police officers not below the rank of Inspector having been authorized to effect search and seizure by Govt. Notification No.7599 dated 29.4.2010, the I.O. is competent to seize P.D.S. wheat and the truck in question. Learned Addl. Standing Counsel further submits that even if it is presumed that the S.I. Mr. Rout who was in-charge of the Inspector lacks authority to search and seize the P.D.S. wheat along with the truck, at best the offence under Section 7 of the E.C. Act cannot be attracted against the petitioner. But the offence under Sections 407/420/201/411/120-B of I.P.C. can squarely be attracted against him and the co-accused persons since they conspired to commit breach of trust by unloading the P.D.S. wheat in a place other than the place of destination in order to sale the same in the black market and thereby cheated the Government and to screen the offence against them, the marketing inspector, Co- accused Santosh Kumar Marandi wrote a letter to the petitioner to keep the wheat in his godown on the pretext that the truck suffered break down, even though he has no authority to write so and the vehicle was found to be fit to ply by the M.V.I., Bhadrak. 4. Because of the rival submissions, it is to be decided whether the S.I. of police Bhadrak (Rural) P.S. was competent to effect search and seizure of P.D.S. wheat along with the truck. It would be profitable to quote clause 23 of O.P.D.S. (Control) Order, 2008, which reads as follows:- “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 to 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; 2 (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 of the persons occupying the premises. (v) search, seize and remove the stocks of the essential commodities and the packages, coverings, animals, vehicles, vessels or other conveyances used in carrying the said essential commodities in contravention of the provisions of this order or of the conditions of 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.” 5. In terms of the above provision, the Govt. of Orissa in F.S. and C.W. Department authorized some of the officers of the same department to act as Licensing Authority vide notification No.7450 dated 29.3.2008. Thereafter vide notification No.7599 dated 29.4.2010 published in O.G.E. No.739 dated 13.5.2010, the police officers not below the rank of Inspector have been authorized by the Govt. to exercise the power like the Licensing Authority under Clause 23 of O.P.D.S. (Control) Order, 2008. The S.I. of police, Bhadrak (Rural) P.S. who searched and seized the truck and the P.D.S. wheat being below the rank of inspector had no authority to do so. The submission of learned Addl. Standing Counsel that the I.O. of the case was in-charge of the Inspector at the time of seizure would be of no help to him, because the seizure was made by S.I. Siddheswar Nayak who is below the rank of Inspector of Police. So, the seizure being illegal, the order of cognizance taken under Section 7 of the E.C. Act cannot stand the scrutiny of law. 6. As regards the offence under Section 407 of I.P.C, there is nothing to show that any F.I.R. or complaint was made by the Orissa Food Supplies Corporation alleging commission of criminal breach of trust against the petitioner. So, the offence under Section 407 of I.P.C. also cannot be attracted against the petitioner. Since there is no allegation of theft of P.D.S. wheat the question of receiving of stolen property, let alone dishonestly knowing the same to be stolen, does not arise. So, the offence under Section 411 of I.P.C. also fails. Nobody alleges that he was cheated by the petitioner, so the offence under Section 420 of I.P.C. also cannot be attracted. Since no offence under Sections 407/420/411 of I.P.C. is committed, there is no question of causing any evidence of commission of offence to disappear and accordingly the offence under 3 Section 201 of I.P.C. also fails. When all the offences fail, the question of hatching a conspiracy to commit an offence (120-B of I.P.C.) does not arise. Accordingly, the revision is allowed, the order dated 11.10.2010 passed by the learned S.D.J.M., Bhadrak and the seizure list under Annexure-3 series are hereby quashed. The seized truck and the P.D.S. wheat or sale proceeds of the said wheat and documents and articles seized under Ext.3 series be returned to the persons entitled to the same. The CRLREV is accordingly disposed of. Revision allowed. 4