Orissa High Court
Janmejay Sahu vs State Of Odisha & Ors. ……… … on 24 December, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.24289 of 2012
Janmejay Sahu ......... Petitioner
-Versus-
State of Odisha & Ors. ......... Opposite Parties
Advocate for the parties
For Petitioner : Mr. S. Udgata,
Advocate
For Opp. Party : Mr. T.K. Biswal,
Nos.1 to 3 & 6 Addl. Govt. Advocate
For Opp. Party Nos.4 & 5 : Mr. S. Das,
Standing Counsel (Vig.)
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Judgment: 24.12.2024
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S.K. MISHRA, J.
1. This writ petition has been preferred challenging
the competency of the Inspector of Police, Vigilance, Rourkela
(Opposite Party No.4) in conducting the search and seizure in
the business premises of the Petitioner, to quash the report
submitted by the Opposite Party No.4, as at Annexure-1, to
quash the order dated 29.08.2012 passed by the Collector and
District Magistrate, Sundargarh (Opposite Party No.2) so also
the proceeding in Misc. Case No.43 of 2012, now pending in
the Court of Opposite Party No.3, for alleged contravention of
the provisions of the Fertilizer (Control) Order, 1985, shortly
hereinafter, „Control Order, 1985‟.
2. The factual matrix of the case is that license for
retail dealership of fertilizer was issued by the District
Agriculture Officer, Sundargarh (Opposite Party No.6) in
favour of the Petitioner, which was valid till 17.03.2014. It is
the case of the Petitioner that the Inspector of Police,
Vigilance, Rourkela (Opposite Party No.4) conducted search in
the business premises of the Petitioner and seized the license,
stock register and other materials alleging contravention of
provisions of the Clause 4, 5, 8 and 35(1)(a) of the Control
Order,1985 and submitted a report before the Collector &
District Magistrate, Sundargarh for initiation of Confiscation
Proceeding. Thereafter, the Opposite Party No.2 registered
Misc. Case No. 43 of 2012 under Section 6-A of the Essential
Commodities Act,1955, in short “the Act,1955”, against the
Petitioner directing the District Agriculture Officer,
Sundargarh to sell the seized fertilizer so also to credit the
sale proceeds to the Government Treasury. Further, the
W.P.(C) No.24289 of 2012 Page 2 of 42
Opposite Party No.2, vide order dated 29.08.2012, directed for
transfer of the case record to the Court of Additional District
Magistrate, Rourkela (Opposite Party No.3) for proceeding
further and disposal of the case.
3. The writ petition has been preferred basically on
the grounds that on perusal of the report of the Opposite Party
No.4, as at Annexure-1, the Opposite Party No.4, who is
alleged to have been empowered to investigate the case under
the Act, 1955, as per the Home Department Notification
No.31045/D & A dated 07.08.2004, carried out the search in
the business premises of the Petitioner on receipt of
allegation. However, the said notification has neither been
notified in the Official Gazette nor the Opposite Party No.4 has
been appointed vide the said notification to be the Inspector of
Fertilizer for the purpose of carrying out the investigation for
alleged contravention of the Control Order, 1985. The
Opposite Party No.5, who carried out the said investigation in
his official capacity as the Opposite Party No.4, does not
possess the qualification for appointment as Fertilizer
Inspector, in terms of the Control Order, 1985.
A ground has also been urged in the writ petition
that as the Opposite Party No.4 is not authorized to conduct
search, seizure of stock and other materials so also submit
W.P.(C) No.24289 of 2012 Page 3 of 42
the report made vide Annexure-1, therefore the proceeding
under Section 6-A of the Act, 1955 is non-est in the eye of law
and the impugned order dated 29.08.2012 by the Opposite
Party No.2, passed in Misc. Case No.43 of 2012, as at
Annexure-2, is liable to be quashed.
A further ground has also been urged by the
Petitioner that the search and seizure was made by the
Opposite Party No.4 merely on the basis of receipt of
allegation, which is contrary to the mandatory requirement
under the Control Order, 1985.
It is also the case of the Petitioner that he is
authorized to deal with the product. He correctly maintained
the records and sold the stocks to farmers under proper
authority supported by cash memos and the allegations
against the Petitioner vide Report dated 23.08.2012 U/s-6 A(1)
and 2 of the Act, 1955 is incorrect. Further, the confiscation
proceeding in MC No. 43 of 2012, being based upon an illegal
seizure, is liable to be quashed.
4. A Counter has been filed by the State Opposite
Party Nos.4 and 5 taking a stand therein that a joint search
was conducted on 18.08.2012 in the presence of Fertilizer
Inspector-Cum-Assistant Agriculture Officer, Bonai on the
W.P.(C) No.24289 of 2012 Page 4 of 42
allegation about hoarding and black marketing of the
fertilizers by the Petitioner, pursuant to which a joint
memorandum was prepared.
It is the stand of the Opposite Party Nos.4 & 5 that
the Petitioner had not maintained the stock position of
fertilizer and relevant records such as stock register and
money receipt book properly and procured fertilizers from the
wholesale dealer without a letter of authorization, which is in
contravention of provisions under Clause 4, 5, 8 and 35(1)(a)
of the Control Order,1985. Hence, the Fertilizer Inspector-
Cum-Assistant Agriculture Officer requested the DSP,
Vigilance of Rourkela Vigilance Unit vide letter dated
18.08.2012 to take necessary legal action against the
Petitioner. A vigilance enquiry was conducted by the
concerned Inspector of Vigilance, Rourkela, who submitted a
report after completion of the enquiry. On the basis of the said
report P.S. Case No.56 of 2012 was registered against the
Petitioner for commission of offence under Section 7(1)(a)(ii) of
the Act,1955 so also violation of provisions under the Control
Order,1985 and the Inspector of Vigilance, Rourkela was
entrusted with the investigation of the case.
The Petitioner had been issued with license by the
W.P.(C) No.24289 of 2012 Page 5 of 42
District Agriculture Officer, Bonai (Opposite Party No.6) for
retail dealership of fertilizer, which was valid till 17.03.2014.
However, after search of the licensed shop of the Petitioner in
presence of the Opposite Party No.6, he had been issued with
show cause notice for contravention of different provisions of
Control Order, 1985 vide notice dated 11.08.2012 and his
registration was suspended w.e.f. 21.08.2012.
It is also the stand of the Opposite Parties that
Home Department Notification dated 07.08.2004 has been
published in the Orissa Gazette on 20.08.2004, vide which an
Inspector of Police, Vigilance has been empowered to
investigate all the offences under the Act, 1955, not the
Inspector of Fertilizer. Thus, the Opposite Party No.4 was
competent to investigate into the case. Apart from that, the
Inspector of Fertilizer had himself requested the Vigilance
Authorities to take legal action and search had also been
conducted in the presence of the Assistant Agriculture Officer-
Cum-Fertilizer Inspector, Lahaunipada.
It is the further stand of the Opposite Parties that
the Petitioner had not maintained the stock position of
fertilizer and relevant records such as stock register, money
receipt book properly and there was also shortage of stock in
W.P.(C) No.24289 of 2012 Page 6 of 42
fertilizer for which a case vide SBP(V) 56 of 2012 has been
registered so also confiscation proceeding under Sections 6-A
and 2 of the Act, 1955 was initiated by the Collector-Cum-
District Magistrate, Sundargarh. In the meantime, in SBP(V)
No. 56 of 2012 charge-sheet has been submitted against the
Petitioner vide Charge-Sheet No.63 dated 26.10.2012.
5. Learned Counsel for the Petitioner, reiterating the
facts detailed in the writ petition, submitted that a valid
seizure is a sine qua non for initiation of a confiscation
proceeding and passing any order thereon. Learned Counsel,
drawing attention of this Court to Clause 2(l) of the Control
Order, 1985, submitted that “Inspector” has been defined
under the said clause to mean an Inspector of Fertilizer,
appointed under Clause 27 of the Control Order, 1985 by the
State Government or Central Government, by notification in
the Official Gazette, defining the limits of local area within
which the Inspector shall exercise his jurisdiction.
Learned Counsel for the Petitioner further
submitted that Clause 27-A of the Control Order, 1985
provides that no person shall be eligible for appointment as
Fertilizer Inspector unless he is a graduate in agriculture or
science with chemistry as one of the subjects, from a
recognized University and possesses the training or experience
W.P.(C) No.24289 of 2012 Page 7 of 42
in the quality control or fertilizers and working in the State or
Central Government Department of Agriculture. Further,
Clause 28 of the Control Order,1985 provides that the
Fertilizer Inspector must have reason to believe that the
fertilizer has been manufactured, sold, offered for sale, stored,
distributed for sale or distributed contrary to the provision of
the Control Order,1985 before he enters upon any such
premises.
However, none of the aforesaid conditions has been
complied with by the Opposite Party No.4 namely, the
Opposite Party No.5, as neither he has the notification in his
favour nor he possess the requisite qualification, training and
works in Agriculture Department of the Government of Orissa.
Further, he has not recorded any reason to believe that there
is contravention of the Control Order, 1985.
6. Learned Counsel for the Petitioner further
submitted that the District Agriculture Officer and the
Assistant Agriculture Officer, who were accompanying the
Opposite Party No.5 at the time of search and seizure, so also
to whom the seized stocks and documents were handed over,
neither had any notification published in the Official Gazette
under the Control Order, 1985 in their favour nor they are
qualified to be the Investigators.
W.P.(C) No.24289 of 2012 Page 8 of 42
7. Learned Counsel for the Petitioner relied on the
Judgments of this Court in P. Basudeb Rao Vs. State of
Orissa reported in 1990 (I) OLR 80, Tapan Kumar Samanta
Vs. Collector-Cum- District Magistrate, Balasore and
Others reported in 2010 (I) OLR 221, Krushna Chandra
Sahoo Vs. Bank of India & Others reported in AIR 2009
ORISSA 35, Swastik Agency and Others Vs. State Bank of
India, Bhubaneswar and Others reported in AIR 2009
ORISSA 147, State of Orissa Vs. Managobinda Sahoo
reported in 2009 (Sup-I) OLR 201, Dipak Kumar Saha Vs.
State of Orissa and Others reported in 2012 (Sup-I) OLR
639, Sarat Kumar Swain Vs. State of Odisha & Others
reported in 2023(II) ILR CUT 608, Shaswata Pratika Pradhan
Vs. State of Odisha & Ors reported in 2022(III) ILR CUT 742
and M/s. The Indure Limited Vs. Commissioner of Sales
Tax, Orissa, Cuttack & Others reported in 2006(II) OLR 154
so also Judgments of the Supreme Court in K.L. Subhayya
Vs. State of Karnataka reported in AIR 1979 SC 711, M/s.
Ganga Saran & Sons Pvt. Ltd, Calcutta Vs. The Income Tax
Officer & Others reported in AIR 1981 SC 1363,Whirlpool
Corporation Vs. Registrar of Trade Marks Mumbai &Ors
reported in AIR 1999 SC 22, Renaissance Hotel Holdings
INC Vs. B. Vijaya Sai and Others reported in (2022) 5 SCC 1
W.P.(C) No.24289 of 2012 Page 9 of 42
and Mohinder Singh Gill and Another Vs. The Chief
Election Commissioner, New Delhi and Others reported in
AIR 1978 SC 851. He also relied on the Judgments of Patna
High Court in Sanjay Kumar Jaiswal Vs. The State of Bihar
and Others reported in 1990 (1) PLJR 416 and Ram Chandra
Pansari Vs. State of Bihar reported in 1989 CRI.L.J. NOC 88
so also the Judgment of Telengana High Court in
ManthenaSrinivasa Raju Vs. Directorate of Enforcement
passed in Criminal Petition No.634 of 2021 to substantiate his
submissions and prayers made in the writ petition.
8. Per contra, learned Counsel for the State
submitted that as there is an effective and alternative remedy
of appeal against the impugned order, the writ petition is not
maintainable. Learned State Counsel, drawing attention of
this Court to the provisions under Section 6-A, 6-C and 2(cc)
of the Act, 1955, submitted that Section 6-C of the Act, 1955
stipulates that an aggrieved person by an order of confiscation
under Section 6-A may prefer an appeal before any judicial
authority appointed by the State Government concerned. As
defined under Section 2(cc) of the Act, 1955, an “Order”
includes a direction issued. Further, Section 6-A provides the
procedure for confiscation of essential commodities. Sub-
Section (2) of Section 6-A provides that the Collector, on
W.P.(C) No.24289 of 2012 Page 10 of 42
receiving a report of seizure of any essential commodity under
Sub-Section (1) of Section 6-A, can order the seized essential
commodity to be sold at the controlled price and where no
such price fixed, order the same to be sold by public auction
and to credit the sale proceeds thereof into Government
Treasury.
Learned Counsel for the State further submitted
that from the impugned Order at Annexure-2, it is clear that a
case was registered under Section 6-A of the Act, 1955. The
said order also well demonstrates that a direction for
confiscation of the seized commodities was given to the
concerned authority and to sell the seized fertilizer at the
approved rate so also to credit the sale proceeds into
Government Treasury. Thus, the impugned order at
Annexure-2 is an order of confiscation of the seized fertilisers
and the said order is appealable under Section 6-C of the Act,
1955.
9. Learned Counsel for the State submitted that the
search and seizure was conducted by one Debananda Sahoo,
who was declared as Fertilizer Inspector, duly notified in
terms of Clause 27 of the Control Order, 1985, who requested
the Deputy Superintendent of Vigilance, Rourkela vide letter
dated 18.08.2012, as at Annexure-A/4 of the Counter-
W.P.(C) No.24289 of 2012 Page 11 of 42
Affidavit, to take legal action against the Petitioner for
contravention of the provisions under the Control Order, 1985
after due enquiry.
10. To substantiate his submissions, learned Counsel
for the State relied on the judgments of Supreme Court in
Debasish Paul and Another Vs. Amal Baral, reported in
(2024) 2 SCC 169 and Thansing Nathmal Vs.
Superintendent of Taxes, reported in AIR 1964 SC 1419.
11. Though no such objection has been raised by the
State in its Counter regarding maintainability of the Writ
Petition on the ground of availability of alternative remedy of
Appeal under Section 6-C of the Act, 1955 against the
confiscation order passed under Section 6-A of the said Act,
as the learned State Counsel raised the point of
maintainability of the present writ petition on the said ground,
the following points emerge to be dealt with and answered by
this Court.
(i) Whether the writ petition is maintainable in
view of the alternative remedy of appeal
available under Section 6-C of the Act, 1955?
(ii) Whether the Inspector of Police, Vigilance,
Rourkela Unit, Rourkela, namely, Mr. P. K.
Naik, who has been arrayed as Opposite
W.P.(C) No.24289 of 2012 Page 12 of 42
Party No.4 by designation and Opposite Party
No.5 by name, was competent to conduct
search and seizure in the business premises
of the Petitioner for alleged contravention of
provisions under the Control Order, 1985
and initiate confiscation proceeding against
the Petitioner?
12. One of the impugned orders in the present writ
petition is the order dated 29.08.2012 passed by the Collector,
Sundargarh in Misc. Case No.43 of 2012, which has been
initiated against the Petitioner under Section 6-A of the Act,
1955 at the instance of the present Opposite Party No.4 for
confiscation of seized fertilizer and sale of the same to avoid
speedy natural decay in terms of provisions enshrined under
Section 6-A (1) and 2 of the Act, 1955, vide which the
Opposite Party No.2 ordered for sale of the seized fertiliser to
deserving farmers at the approved rate and credit the sale
proceeds into the Government Treasury.
13. Admittedly, the said order dated 29.08.2012
passed by the Collector, Sundargarh in Misc. Case No.43 of
2012 is appealable under Section 6-C of the Act, 1955.
However, the said order so also report submitted by the
W.P.(C) No.24289 of 2012 Page 13 of 42
Opposite Party No.4, as at Annexure-1 to the writ petition,
based on which the confiscation proceeding was initiated
against the Petitioner, are under challenge solely on the
ground that the Opposite Party No.4, who has also been
arrayed as Opposite Party No.5 to the writ petition by name,
has no jurisdiction to conduct search and seizure under the
Control Order, 1985. The very basis of initiation of
confiscation proceeding under Section 6-A of the Act, 1955
being under challenge in the writ petition, vide order dated
19.12.2012, this Court, as an interim measure, stayed further
proceeding in Misc. Case No.43 of 2012, now pending in the
Court of Additional District Magistrate (Opposite Party No.3)
till the next date and the said interim order being extended
from time to time, is still in vogue. The Opposite Party Nos.4 &
5, though filed a Counter Affidavit after 11 years i.e. on
25.02.2023, no such stand has been taken in the Counter
Affidavit regarding maintainability of the Writ Petition on the
ground of availability of alternative remedy under Section 6-C
of the Act, 1955.
14. Law is well settled that the jurisdiction of the High
Court in entertaining a Writ Petition under Article 226 of the
Constitution, in spite of availability of the alternative statutory
remedies, is not affected, specifically in a case where the
W.P.(C) No.24289 of 2012 Page 14 of 42
authority, against whom the writ is filed, is shown to have had
no jurisdiction or had purported to usurp jurisdiction without
any legal foundation.
15. In Whirlpool Corporation (supra), the Supreme
Court held as follows:
“20. Much water has since flown
beneath the bridge, but there has been no
corrosive effect on these decisions which,
though old, continue to hold the field
with the result that law as to the
jurisdiction of the High Court in
entertaining a writ petition under Article
226 of the Constitution, in spite of the
alternative statutory remedies, is not
affected, specially in a case where the
authority against whom the writ is filed
is shown to have had no jurisdiction or
had purported to usurp jurisdiction
without any legal foundation.
21. That being so, the High Court
was not justified in dismissing the writ
petition at the initial stage without examining
the contention that the show cause notice
issued to the appellant was wholly without
jurisdiction and that the Registrar, in the
circumstances of the case, was not justified in
acting as the “TRIBUNAL”.
(Emphasis supplied)
16. Similarly, in Shaswata Pratika (supra), the
Division Bench of this Court, relying on umpteen numbers of
judgments of the Supreme Court, vide paragraphs-15 to 19,
held as follows.
“15. In Dr. Smt. Kuntesh Gupta (supra),
the apex Court holding that the Vice-
Chancellor in considering the question of
approval of an order of dismissal of the
Principal, acts as a quasi judicial authority
and, as such, as per the provisions containedW.P.(C) No.24289 of 2012 Page 15 of 42
in Universities Act, 1973 or of the Statutes of
the University do not confer any power of
review on the Vice-Chancellor. Thereby, the
Vice- Chancellor has acted wholly without
jurisdiction in reviewing her order and, as
such, the same is a nullity. If the order in
question is nullity in the eye of law,
availability of alternative remedy is not a bar
to approach the Court by invoking extra
ordinary jurisdiction under Article 226 of the
Constitution of India. By holding so, in
paragraph-12, of the said judgment, the apex
Court held as under:
“The next question that falls for
our consideration is whether the
High Court was justified in
dismissing the writ petition of the
appellant on the ground of
availability of an alternative remedy.
It is true that there was an
alternative remedy for challenging
the impugned order by referring the
question to the Chancellor under
Sec. 68 of the U.P. State Universities
Act. It is well established that an
alternative remedy is not an
absolute bar to the maintainability
of a writ petition. When an authority
has acted wholly without
jurisdiction, the High Court should
not refuse to exercise its jurisdiction
under Art. 226 of the Constitution on
the ground of existence of an
alternative remedy.”
16. In Whirlpool Corporation (supra), the apex
Court in paragraphs-20 & 21 of the said
judgment, held as under:-
“20. Much water has since
flown beneath the bridge, but
there has been no corrosive effect
on these decisions which, though
old, continue to hold the field
with the result that law as to the
jurisdiction of the of the High
Court in entrance a writ petition
under Article 226 of theW.P.(C) No.24289 of 2012 Page 16 of 42
Constitution. In spite of the
alternative statutory remedies. Is
not affected, specially in a case
where the authority against
whom the writ is field is shown to
have has no jurisdiction or has
purported to usurup jurisdiction
without any legal foundation.
21. That being so, the High
Court was not justified in dismissing
the writ petition at the initial stage
without examining the contention that
the show cause notice issued to the
appellant was wholly without
jurisdiction and that the Registrar, in
circumstances of the case, was not
justified in acting as the “TRIBUNAL”.
17. In Godrej Sara Lee Limited (supra),
the apex Court held that the question as to
whether the notification could have a
retrospective effect or retroactive operation
being a jurisdictional fact, should have been
determined by the High Court in exercise of its
writ jurisdiction under Article 226 of the
Constitution of India, as it is well known that
when an order of an statutory authority is
questioned on the ground that the same
suffers from lack of jurisdiction, alternative
remedy may not be a bar.
18. In Uttar Pradesh Power Transmission
Corporation Limited (supra), the apex Court
held as follows:-
“It is well settled that availability of
an alternative remedy does not
prohibit the High Court from
entertaining a writ petition in an
appropriate case. The High Court
may entertain a writ petition,
notwithstanding the availability
of an alternative remedy,
particularly: (i) where the writ
petition seeks enforcement of a
fundamental right; (ii) where there is
failure of principles of natural justiceW.P.(C) No.24289 of 2012 Page 17 of 42
or; (iii) where the impugned
orders or proceedings are wholly
without jurisdiction or; (iv) the
vires of an Act is under challenge.”
19. Applying the above principles to the
present case, this court is of considered view
that the impugned order of cancellation of
lease and forfeiture of security amount, having
been passed by the Tahasildar, suffers from
jurisdictional error. More so, the same is
without jurisdiction, as it is the controlling
authority, which can pass the order in terms
of Rule-43 (3) of OMMC Rules, 2016. Thereby,
the order dated 09.03.2021 passed under
Annexure-9 cancelling the lease and forfeiting
the security amount, cannot sustain in the eye
of law and the same is liable to be quashed
and is hereby quashed. Otherwise also, the
said order has been passed contrary to the
direction issued by this Court W.P.(C)
No.10449 of 2021 disposed of on
18.03.2021.”
(Emphasis Supplied)
17. In Bal Krushna Agarwal Vs. State of U.P. & others
reported in 1995(70)FLR1041: JT1995(1)SC471, it was held as
follows:
“10. Having regard to the aforesaid facts
and circumstances, we are of the view that
the High Court was not right in dismissing
the writ petition of the appellant on the
ground of availability of an alternative
remedy under Section 68 of the Act
especially when the writ petition that was
filed in 1988 had already been admitted
and was pending in the High Court for the
past more than five years. Since the question
that is raised involves a pure question of law
and even if the matter is referred to the
Chancellor under Section 68 of the Act it is
bound to be agitated in the court by the party
aggrieved by the order of the Chancellor, we are
of the view that this was not a case where theW.P.(C) No.24289 of 2012 Page 18 of 42
High Court should have non-suited the appellant
on the ground of availability of an alternative
remedy. We, therefore, propose to go into the
merits of the question regarding inter se seniority
of the appellant and Respondent Nos.4 & 5. We
may, in this context, mention that the respondent
No.4 has already retired in January, 1994.”
(Emphasis Supplied)
In Rasmi Ranjan Srichandan & others Vs.
Principal-Cum-Secretary, Sri Jayadev College of Education
and Technology and others reported in 2000(1)OLR255:89
the coordinate Bench held as follows:
“3. There is no doubt that even for
terminating the service of a temporary
employee of an aided College, the prior
approval of the D.P.I. is necessary. It is also
apparent that since the College was an aided
College, the petitioners could have approached
the Education Tribunal as is clear from the
decision reported in MANU/OR/
0164/1979:47 (1979)CLT 517 (Managing
Committee, Orissa Police High School V.
Rasbehari Patnaik and Ors). However, since
no disputed questions of fact are involved
in the present writ application and as the
matter had been entertained in the year
1998 and it may not be proper to drive the
petitioners to seek their alternative
remedy before the Tribunal, the writ
application is being disposed of.”
(Emphasis supplied)
18. Admittedly, the Petitioner has challenged the
competency of the Inspector of Vigilance to do the search and
seizure and initiate confiscation proceeding against the
Petitioner solely on the ground of lack of authority to do so in
W.P.(C) No.24289 of 2012 Page 19 of 42
view of the specific provision enshrined under the Act, 1955 so
also Control Order, 1985. That apart, this Court entertained
the writ petition directing the State to file Counter Affidavit
and after about eleven years, the State filed the Counter on
25th February, 2023 on merit, without raising the point
regarding maintainability of the writ petition on the ground of
alternative remedy. Further the point raised by the Petitioner
as to legality to initiate the confiscation proceeding so also
other consequential action, based on the competency of the
Opposite Party No.4 to do search and seizure, is a pure
question of law. Hence, the point No.(i) with regard to
maintainability of the writ petition is answered against the
Opposite Party Nos.4 & 5.
19. Point No-(ii) is regarding competency of the
Opposite Party Nos.4 to enter into the premises of the
Petitioner to do search and seizure and initiate confiscation
proceeding against him in terms of Section 6-A of the Act,
1955 before the Opposite Party No.2 (Collector, Sundargarh).
Before dealing with the said point, it would be appropriate to
reproduce below the definition of „Inspector‟ as defined under
Clause 2(l), Clause 27, 27A and Clause 28 of the Control
Order, 1985 for ready reference.
W.P.(C) No.24289 of 2012 Page 20 of 42
“2. Definitions:- In this Order, unless
the context otherwise requires:
xxx xxx
xxx
l) "inspector" means an Inspector
of Fertilisers appointed under clause 27.
27. Appointment of inspectors.- The
State Government, or the Central
Government may, by notification in the
Official Gazette appoint such number
of persons, as it thinks necessary, to
be inspectors of fertilisers 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 jurisdictions.
27A. Qualifications for appointment of
fertiliser Inspectors. No person shall be
eligible for appointment as Fertiliser
Inspector under this Order unless he
possesses the following qualifications,
namely:-
(1) Graduate in agriculture or
science with chemistry as one of the
subjects, from a recognised university; and
(2) Training or experience in the
quality control of fertilisers and working in
the State or Central Government
Department of Agriculture.
28. Powers of Inspectors.-(1) An
inspector may, with a view to securing
compliance with this Order:-
(a) require any manufacturer,
importer, pool handling agency, wholesale
dealer or retail dealer to give any
information in his possession with respect
to the manufacture, storage and disposal
of any fertilizer manufactured or, in any
manner handled by himW.P.(C) No.24289 of 2012 Page 21 of 42
(b) draw samples of any fertiliser
in accordance with the procedure of
drawal of samples laid down in Schedule
II. Provided that the inspector shall prepare
the sampling details in duplicate In Form
J, and hand over one copy of the same to
the dealer or his representative from whom
the sample has been drawn;
(ba) draw samples of any
biofertilizers in accordance with the
procedure of drawl of samples laid down
in schedule III.
(bb) draw samples of any organic
fertilisers in accordance with the procedure
of drawl of samples laid down in schedule
IV.
(c) enter upon and search any
premises where any fertiliser is
manufactured/ Imported or stored or
exhibited for sale, if he has reason to
believe that any fertiliser has been or
is being manufactured/imported, sold,
offered for sale, stored, exhibited for sale
or distributed contrary to the provisions of
this Order;
(d) seize or detain any fertiliser
in respect of which he has reason to
believe that a contravention of this
Order has been or is being or is
[attempted] to be committed;
(e) seize any books of accounts
or documents relating to manufacture,
storage or sale of fertilisers, etc. in
respect of which he has reason to
believe that any contravention of this
Order has been or is being or is about
to be committed;
Provided that the Inspector shall
give a receipt for such fertilisers or books
of accounts or documents so seized to the
person from whom the same have been
seized;
Provided further that the books of
accounts or documents so seized shall be
returned to the person from whom they
W.P.(C) No.24289 of 2012 Page 22 of 42
were seized after copies thereof or extracts
therefrom as certified by such person, have
been taken.
(2) Subject to the proviso to paragraphs (d)
and (e) of subclause (1), the provisions 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.
Provided also that the inspector
shall give the stop sale notice in writing to
the person whose stocks have been
detained and initiate appropriate action as
per the provisions of this order within a
period of twenty one days. If no action has
been initiated by the inspector within the
said period of twenty one days from the
date of issue of the said notice, the notice
of stop sale shall be deemed to have been
revoked.
(3) Where any fertiliser is seized by an
inspector under this clause, he shall
forthwith report the fact of such
seizure to the collector whereupon the
provisions of sections 6A, 6B, 6C, 6D
and 6E of the Act, shall apply to the
custody, disposal and confiscation of
such fertilisers.
(4) Every person, if so required by an
inspector, shall be bound to afford all
necessary facilities to him for the purpose
of enabling him to exercise his powers
under sub-clause (1).
(Emphasis Supplied)
20. From the said legal provisions, extracted above, it
is amply clear that the State Government or the Central
Government, by notification in the Official Gazette, has to
appoint such number of persons, as it thinks necessary, to be
the Inspector of fertilisers for the purpose of the said order
W.P.(C) No.24289 of 2012 Page 23 of 42
and in the said notification has to define the limits of local
area within which each such Inspector shall exercise his
jurisdiction. Clause-27A of the Control Order, 1985 mandates
as to qualifications one should possess to be appointed as
Fertiliser Inspector. So far as Clause 28(C) of the Control
Order, 1985, an Inspector, who has been appointed in terms
of Clause 27 of the Control Order, 1985 to enter upon and
search any premises, where any fertiliser is manufactured/
imported or stored or exhibited for sale, if he has reason to
believe that any fertiliser has been or is being
manufactured/imported, sold, offered for sale, stored,
exhibited for sale or distributed contrary to the provisions of
the Control Order, 1985.
21. The issue in the present Writ Petition is regarding
competency of the Opposite Party No.4, who has been arrayed
as Opposite Party No.5 by name, to exercise the powers of an
Inspector. A stand has been taken by the Opposite Party in its
Counter that on the allegation about hoarding and black
marketing of fertilizers by the Petitioner, joint search was
conducted on 18.08.2012 in the presence of Mr. Debananda
Sahu, Fertiliser Inspector-cum-Assistant Agriculture Officer,
Lahunipada. On request of Mr. Sahu to the DSP, Vigilance of
Rourkela Vigilance Unit, vide letter dated 18.08.2012, the
W.P.(C) No.24289 of 2012 Page 24 of 42
Opposite Party No.4 conducted an inquiry, and submitted a
written report to the S.P. Vigilance, Sambalpur Division. An
order was passed on 21.03.2023 permitting the learned
Standing Counsel (Vigilance) to obtain instruction as to
whether Sri. Debananda Sahu, Assistant Agriculture Officer-
cum-Fertiliser Inspector, Lahunipada has been duly notified
to act as an Inspector in terms of Clause 27 of the Control
Order, 1985 and to produce the said notification, if so notified.
On being so ordered, the State has filed Notification No.31481
dated 10.11.2000. The said notification, being relevant for
proper adjudication of the present lis, is reproduced below:
Notification
Bhubaneswar, Dated the 10th December, 2000No.Input-(F)-26/2000 31481 / Ag., In exercise of the powers
conferred by Clause 27 of the Fertilizer (Control) Order,
1985 and in supersession of all previous notifications on the
subject, the State Government do hereby appoint the
following officers having the qualifications of (1)
Graduate in Agriculture or Science with Chemistry as
one of the subjects from a recognized University, and (2)
Training or experience in the quality control of
fertilisers and working in the State Government in the
Agriculture Department as prescribed in clause 27-A of
the said Order, to be the Inspectors of Fertilisers for the
purpose of the aforesaid Order and define the limits of local
area against each within which they shall exercise their
jurisdiction, namely :-
1. All Assistance Agriculture Officers working in the Blocks
of the State. :Within their local limits of jurisdiction.2. All
Junior Agriculture Officer working in the Blocks of Orissa. :
With their local limits of jurisdiction.
By order of the Governor
Additional Secretary to
Government
Memo No.31482/Ag., Dated, the 10/11/2000(Emphasis Supplied)
W.P.(C) No.24289 of 2012 Page 25 of 42
22. Though a copy of the said notification dated 10th
December, 2000 was filed by the learned State Counsel, but
the learned Counsel for the Petitioner disputed its publication
in the Gazette. Hence, again an order was passed on
25.04.2024 to file the Gazette Notification, if any, pursuant to
Memo No.31482, 10.11.2000. Being so ordered, the learned
State Counsel (Vigilance) produced a communication dated
11.07.2024 of the S.P., Vigilance, Rourkela Division, Rourkela
along with letter dated 25.06.2024 of the Joint Director of
Agriculture (QC & Enforcement), which indicated that copy of
the Gazette Notification is not traceable in the Directorate
(Gazette Cell) and is not available for submission before this
Court.
23. In P. Basudeb Rao (supra), the coordinate Bench
held as follows;-
“8. According to Clause-11(aa), the price of the
paddy will be declared by the Government in advance
in official Gazette. In this case Ext-4 has been
produced to show the price declared by the
Government. Ext-4 is no doubt a notification issued by
the Government of Orissa, Food and Civil Supplies
Department and circulated to various authorities
under different memo numbers. Ext-4 may be
intended to be notified in the official Gazette,
but it is not the official Gazette. There is no
proof of the official Gazette in this case and
hence it cannot be said that the Government
declared any price within the meaning of
Clause-11(aa) by a notification in the officialW.P.(C) No.24289 of 2012 Page 26 of 42
Gazette. Thus, the essential ingredient of the offence
has not been proved by the prosecution and so it
cannot be said that the prosecution has successfully
proved that the accused has violated the provisions of
Clause-11(aa) of the Orissa Rice and Paddy Control
Order.”
(Emphasis supplied)
24. Admittedly, the said Notification was made by the
State Government in exercise of power conferred under clause
27 of the Control Order, 1985, which well demonstrates that
all the Assistant Agriculture Officers having qualification of
graduation in agriculture or science with chemistry as one of
the subjects from a recognised university, so also all Junior
Agriculture Officers, having training or experience in the
quality control of fertilisers, and working in the State
Government in the agriculture department, as prescribed in
Clause 27-A of the Control order,1985 to be the Inspector of
Fertilisers for the purpose of Control Order, 1985. Clause 28
of the Control order, 1985 mandates the power of Inspectors.
Sub-clause 1(C) under clause 28 empowers the Inspector to
enter upon and search any premises where any fertiliser is
manufactured/imported or stored or exhibited for sale, if he
has reason to believe that any fertiliser has been or is being
manufactured/imported, sold, offered for sale, stored,
W.P.(C) No.24289 of 2012 Page 27 of 42
exhibited for sale or distributed contrary to the provisions of
the Control Order, 1985.
25. Similarly, sub-clause 3 of clause 28 of the Control
Order, 1985 mandates that where any fertiliser is seized by an
Inspector under the said clause, he shall forthwith report the
fact of such seizure to the Collector, whereupon the provisions
of Sections 6A, 6B, 6C, 6D and 6E of the Act, 1955 shall apply
to the custody, disposal and confiscation of such fertilisers.
There is no such provision under the Control Order, 1985
empowering the Inspector, so notified by the State
Government or Central Government, to sub-delegate such
power to act as an Inspector or to exercise powers of an
Inspector, as detailed in clause 28 of the Control Order, 1985.
26. In para 5 (f) of the Counter Affidavit filed by the
Opposite Party Nos.4 & 5, though it has been admitted that
an Inspector of Police, Vigilance has not been appointed to act
as an Inspector of Fertiliser, but a stand has been taken that
Home Department Notification dated 7th August, 2004 has
been published in the Orissa, Gazette on 20th August, 2004,
which empowers an Inspector of Police to investigate all the
offences under the Act, 1955. Since, violation of Fertiliser
(Control) Order is an offence under the Act, 1955, the
Opposite Party No.4 was competent to investigate into the
W.P.(C) No.24289 of 2012 Page 28 of 42
matter. In view of such stand of the Opposite Party Nos.4 & 5,
it would be apt to reproduce below the said Notification dated
20th August, 2004, for ready reference:
NOTIFICATION
“The 7th August 2004No.31045-P6P-49/2004-D. & A.- In exercise of the
powers conferred by clause(s) of Section 2 of the Code of
Criminal Procedure, 1973 (2 of 1974) and in supersession
of the notification of the Government of Orissa in the
Home Department No.38962-HC., dated the 13th July
2001, the State Government do hereby declare that
the offices mentioned in column (1) of schedule I
shall be Police-stations which shall include within
their respective limits the areas specified against
each in column (2) of the said schedule for the
purpose of the offences contained in schedule II
below with effect from the date of publication of this
notification in the Orissa Gazette.
SCHEDULE I
SI. No. Name of the office Jurisdiction
(1) (2) (3)
1 Office of the S. P., Revenue Districts of Cuttack,
Vigilance, Cuttack Jagatsinghpur, Jajpur,
Kendrapara, Dhenkanal and
Angul.
2 Office of the S.P., Revenue Districts of Puri,
Vigilance, Bhubaneswar Khurda and Nayagarh.
3 Office of the S.P., Revenue Districts of Balasore,
Vigilance, Balasore Bhadrak, Mayurbhanj, and
Keonjhar.
4 Office of the S.P., Revenue Districts of
Vigilance, Sambalpur Sambalpur, Bolangir,
Jharsuguda, Baragarh,
Sonepur, Deogarh and
Sundargarh
5 Office of the S.P., Revenue Districts of Ganjam,
Vigilance, Berhampur Gajapati, Kandhamal, Boudh.
6 Office of the S.P., Koraput Revenue Districts of Koraput,
Vigilance Division, Rayagada, Nawarangpur,
Jeypore. Malkangiri, Kalahandi and
Nuapada.
W.P.(C) No.24289 of 2012 Page 29 of 42
SCHEDULE II
(a) Offences punishable under Sections
161,162,163,164,165 and 165-A of the Indian Penal
Code, 1860 (Act XLV of 1860).
(b) Offences punishable under the Prevention of Corruption
Act, 1988 (49 of 1988).
(c) Offences relating to-
(i) evasion of taxes and different control orders;
(ii) transit and possession of Forest Products as
enumerated in Sections 45 and 46 of the Orissa
Forest Act, 1972 (Orissa Act 14 of 1972), read
with Section 56 of the said Act;
(iii) the Orissa Timber and Other Forest Products
Transit Rules, 1980;
(iv) the Essential Commodities Act, 1955 (10 of
1955);
(v) the Prevention of Food Adulteration Act, 1954
(37 of 1954);
(vi) the standard of Weights and Measures
(Enforcement) Act, 1950 (26 of 1950);
(vii) the Drugs (Control) Act, 1950 (26 of 1950);
(viii) the Motor Vehicles Act, 1988 (59 of 1988); and
(ix) all organized offences under the aforesaid Acts,
Orders and Rules effecting the pecuniary
interest of the State.
(d) Offences under Sections 409,419 and 420 and
Chapter XVIII of the Indian Penal Code, 1860
committed by public servants as defined in the said
Code and in the Prevention of Corruption Act, 1988.
(e) Attempts, abatements conspiracies in respect of
offences mentioned in items (a), (b), (c) and (d) above
by whomsoever committed.
(f) Any other particular offences or class of offences
that may be specified by the State Government from
time to time.”
By order of the Governor
SANTOSH KUMAR
Principal Secretary to Government
(Emphasis Supplied)
27. It is amply clear from the said Notification made by
the Home Department that it was made in exercise of powers
W.P.(C) No.24289 of 2012 Page 30 of 42
conferred by clause (s) of Section 2 of the Code of Criminal
Procedure,1973 (2 of 1974) and in supersession of the
notification of the Government of Orissa in the Home
Department No.38962-HC, dated 13th July, 2001 declaring the
offices mentioned in Column (1) of Schedule-I of the said
notification to be the Police Stations, which shall include
within their respective limits the area specified against each in
the Column (2) of the said schedule for the purpose of offences
contained in Schedule-II with effect from the date of
publication of the said notification in the Orissa Gazette. The
offences detailed under Schedule-II include the offence under
the Essential Commodities Act, 1955.
28. It is further clear from the said notification that
such notification was made by the State Government
authorising various Offices, including Office of the S.P.
Vigilance, Sambalpur, to be the Police Station competent to
deal with the offences under various Acts, including the
offence under the Essential Commodities Act, 1955. It has got
nothing to do with notification to be made in terms of clause
27 of the Control Order, 1985. As required under clause 27 of
the Control Order, 1985, the State Government vide
notification dated 10.11.2000, which has been extracted
above, notified the Assistant Agriculture Officers so also
W.P.(C) No.24289 of 2012 Page 31 of 42
Junior Agriculture Officers, having requisite qualifications in
terms of clause 27-B of the Control Order, 1985, to be the
Inspector of Fertilisers for the purpose of the Control Order,
1985, empowering the said Officers to exercise power under
clause 28 of the Control Order, 1985 for search and seizure
and other purposes.
29. It is amply clear from the Report dated 23.08.2012
submitted in terms of Section 6A (1) and 2 of the E.C. Act,
1955, as at Annexure-1, that the Opposite Party No.5 namely,
P. K. Naik, who was the then Inspector of Police-Vigilance,
Rourkela Unit, Rourkela, submitted a written report, based on
which Sambalpur Vigilance P.S. Case No.56 dated 21.08.2012
was registered U/s 7(1)(a)(ii) of the E.C. Act for contravention
of various provisions under the Control Order, 1985 against
the Petitioner so also the wholesale fertiliser dealer before the
Collector and District Magistrate, Sundargarh. Based on the
written report submitted by the Opposite Party No.5 against
the Petitioner so also another person namely, Sri.
Managobinda Jaiswal (Wholesale Fertiliser Dealer of Village,
Lahunipada), the Opposite Party No.5 was entrusted with the
investigation of the said case. A joint surprise check was
conducted on 18.08.2012 from 11.45 AM to 4.30 PM in the
registered fertiliser shop of the Petitioner with the assistance
W.P.(C) No.24289 of 2012 Page 32 of 42
of one Sri. Kedarnath Mohapatra, I/c District Agriculture
Officer, Bonai, Sri Debananda Sahu, Assistant Agriculture
Officer, Lahunipada, Sri Dayanidhi Pradhan, Asst. Agriculture
Officer, Raiboga and Sri Salu Majhi, Inspector of Supply,
Rourkela. It further reveals from the said report submitted
before the Court of Collector and District Magistrate
Sundargarh that, the Opposite Party No.4, who has been
arrayed by name as Opposite Party No.5, being the Inspector
of Police, Vigilance, again visited the registered fertiliser shop
of the Petitioner (accused) on 22.08.2012 and re-verified the
physical stock position of the fertilisers handed over to him on
18.08.2012 for safe custody. It was found that he has
allegedly sold 73 bags of IFFCO Urea Fertilisers out of physical
stock of 312 bags violating the direction imposed on him
during surprise check on 18.08.2012. Hence, the Opposite
Party No.4 seized the remaining physical stock of 239 bags of
IFFCO Urea, 17 bags of 20:20:013 PPL, 42 bags of IFFCO
20:20:013 and 48 bags of DAP PPL fertilizers from the
Petitioner. The relevant documents were taken to custody on
the date of surprise check under the seizure list dated
22.08.2012. Thereafter, the Opposite Party No.4 moved before
the Opposite Party No.2 praying therein to confiscate the
seized fertilisers to the State and put the same to sell as a
W.P.(C) No.24289 of 2012 Page 33 of 42
measure of interim disposal to avoid speedy natural decay so
also for the interest of farmers in terms of provisions under
Section 6A (1) and 2 of the E.C. Act 1955, though he was not
authorised to do so, not being notified to act so in terms of
clause 27 of the Control Order, 1985.
30. Though in the Counter filed by the Opposite Party
Nos.4 & 5, a stand has been taken as to doing so on being so
requested by the Assistant Agriculture Officer-cum-Fertiliser
Inspector, Lahunipada, but there is no such provision under
the Control Order, 1985 or under the Act, 1955 for sub-
delegation of power to act as the Inspector as defined under
clause 2(l) read with clause 27 of the Control Order, 1985.
31. Law is well settled that a valid seizure is a sine qua
non for initiating confiscation proceeding and passing order
thereof. In Dipak Saha (supra), this Court, relying on the
judgment of the Supreme Court, held that since the Police
Officer made the search and seizure de hors the provisions
under the PDS (Control) Order, 2002, though he was not
authorised to make seizure of the so called PDS kerosene, the
seizure itself being illegal, the proceeding under Section 6(A) of
the E.C. Act is unsustainable. Paragraphs- 2,6, 8 to 10 of the
said Judgment, being relevant, are reproduced below;
W.P.(C) No.24289 of 2012 Page 34 of 42
“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 in E.C. Misc. Case No.39 of 2009
pending in the Court of Collector, Balasore
initiated under Section 6-A of the Essential
Commodities Act and to release the vehicle
(tanker) bearing registration No. WB-11B-
1692. Petition was contested by the opposite
parties.
6. Now the only points to be considered are
whether a police officer is competent to seize
P.D.S. kerosene along with the tanker on
suspicion that the said kerosene was to be
sole in black market and whether on the basis
of that seizure, confiscation proceeding under
Section 6(A) can be initiated.
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 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 cannot
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 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 seizure 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 cannot be invoked and
search and seizure appears to be not
valid for want of jurisdiction, so also theW.P.(C) No.24289 of 2012 Page 35 of 42
view taken by Patna High Court in the case of
Rama Chandra Ansari (supra).
9. In the present case since the police
officer has made the search and seizure
dehors the aforesaid P.D.S. (Control)
Order, 2002 and he was not authorized to
make seizure of the so called P.D.S.,
kerosene the seizure itself being illegal,
the proceeding under Section 6(A) of the
F.C. Act cannot sustain.
10. Accordingly, the proceeding in E.C. Case
No.39 of 2009 pending in the file of learned
Collector, Balasore is hereby quashed. The
tanker bearing registration No. WB-11B-1692
be released in favour of the petitioner
forthwith on proper ownership.”
(Emphasis Supplied)
32. In a recent judgment, the coordinate Bench in
Sarat Kumar Swain (supra) took a similar view. Paragraphs-
20 to 23 of the said judgment, being relevant, are extracted
below.
“20. On perusal of the notification dated
29.03.2008, it appears that the said notification
had been issued in exercise of the power
conferred by clause-23(a) of the OPDS Control
Order, 2008 by the State Government and on
further scrutiny it appears that initially no Police
Officer was included under the said notification
accordingly, the judgment of the coordinate Bench
of this court in Tapan Kumar Samanta vrs.
Collector-cum-District Magistrate, Balasore and
others (supra) has been correctly decided.
However, since the notification dated 29.03.2008
reveals that Police Officer not below the rank of
Inspector has been included w.e.f. 13.05.2010,
therefore, keeping in view the said notification the
conduct of the Police Officer in the present case is
to be examined. Before examining the facts of the
present case, this Court would also like to observeW.P.(C) No.24289 of 2012 Page 36 of 42
that the judgment relied upon by the learned
counsel for the petitioner in Ananda Samal’s case
(supra) has also been correctly decided. On
careful scrutiny of the facts narrated in the
judgment, it appears that the seizure took place
01/02.09.2008 by the OIC, Anandapur Police
Station. However, position of law as discussed
hereinabove has changed w.e.f. 13.05.2010 and
accordingly, Police Officer not below the rank of
Inspector has been included in the notification
dated 29.03.2008.
22. Now, again coming back to the notification
dated 29.03.2008, it is clear that by virtue of an
amendment Police Officer not below the rank of
Inspector has been included w.e.f.13.05.2010.
Thus, the truck as well as PDS commodities
like Kerosene Oil involved in the present case
having been admittedly seized by the Sub-
Inspector of Police, who is definitely below
the rank of Inspector, the seizure made in
the present case is absolutely illegal and
contrary to the OPDS Control Order, 2008.
Therefore, this Court has no hesitation to
come to a definite conclusion that the
seizure made in this case is illegal and
therefore, the proceeding under Section 6(A)
of the E.C. Act, 1955 initiated pursuant to
notice under Annexure-4 to the writ
application is also void and non-est in the
eyes of law. Above view of this Court also
gets support from the judgment of the
Hon’ble Supreme Court in Kailash Prasad
Yadav (supra) wherein the Hon’ble Supreme
Court has held that valid seizure is a sine
qua non for passing an order of confiscation
of property and also finding of the Hon’ble
Supreme Court in Nanda Kishore Singh
(supra) wherein seizure was made by a
person not competent to seize the essential
commodities and as such, said seizure being
illegal, the proceeding under Section 6(A) of
the E.C. Act is not sustainable in law.
23. In such views of the matter, this Court has
no hesitation to hold that the seizure conducted in
the present case by S.I. of Police is illegal and
accordingly, the proceeding initiated under Section
W.P.(C) No.24289 of 2012 Page 37 of 42
6(A) of the E.C. Act and by the licensing authority
and the notice under Annexure-4 are illegal and
void and accordingly, the notice under Annexure-4
as well as the entire proceeding bearing E.C.
No.42 of 2011 under Section 6(A) of the E.C. Act,
initiated by the Collector, Ganjam-Opposite Party
No.2, are hereby quashed.”
(Emphasis Supplied)
33. In State of Orissa-vs. Managobinda Sahoo
(supra), the Coordinate Bench held as follows;-
“5. Considering the submissions made by the
learned counsel for the Vigilance Department, I am
afraid that since admittedly, the investigation of the
case had been conducted by the P. W. 7 who was
a party to the vigilance raid and a witness for
the prosecution. In this respect, in my view, the trial
Court has correctly placed reliance upon the judgment
in the case of Jamuna Chaudhary (supra) and come to
conclude that investigation of a case by a witness is
not desirable. inasmuch as, there is possibility of
tainted investigation in order to bolster up a
prosecution case so as to create evidence which may
unable the Court to record a conviction. The Hon’ble
Supreme Court in paragraph-II of the aforementioned
case has clearly laid down that “the duty of the
Investigating Officers is not merely to bolster up a
prosecution case with such evidence as may enable
the Court to record a conviction but to bring out the real
unvarnished truth.”
This principles of law is embedded in order to
ensure that the rule of law survives and an accused is
entitled in law to a fair and impartial investigation.
Therefore, in order to ensure the fair and
impartial investigation, it also must be ensured
that investigation is carried out by a person who
is absolutely impartial, unbiased and
unmotivated. The rule of law makes it
unthinkable to allow a witness to a crime to
himself/herself became the investigator into the
said crime. Therefore, the requirement of the
Investigating Officer to bring out the real
unvarnished truth” would never been possible by
the said Investigating Officer who is also a
witness to the said proceeding.
W.P.(C) No.24289 of 2012 Page 38 of 42
Apart from the above, it is also a fact that an
Investigating Officer into an offence under the Essential
Commodities Act, must also record the statement of the
members of the Raiding Party and, therefore, if a
member of the said Raiding Party himself becomes the
Investigating Officer, it would give rise to a situation
where the Investigating Officer would be recording his
own statement as a witness to the alleged came and
this by no stretch of imagination, can be permissible in
law.”
(Emphasis supplied)
34. In Krushna Chandra Sahoo (supra), the Division
Bench of this Court, relying on the Judgments of Supreme
Court, held as follows;-
“10. When the statute provides for a particular
procedure, the authority has to follow the same and
cannot be permitted to act in contravention of the
same. It has been hither to uncontroverted legal
position that where a statute requires to do a
certain thing in a certain way, the thing must be
done in that way or not at all. Other methods or
mode of performance are impliedly and necessarily
forbidden. The aforesaid settled legal
proposition is based on a legal maxim
“Expressio unius est exclusio alterius”,
meaning thereby that if a statute provides for
a thing to be done in a particular, then it has
to be done in that manner and in no other
manner and following other course is not
permissible. Vide State of Bihar v. J.A.C.
Saldanna AIR 1980 SC 327, Haresh Dayaram
Thakur v. State of Maharashtra and Ors.
MANU/SC/0363/2000: AIR2000SC2281; Prabha
Shankar Dubey v. State of Madhya Pradesh AIR
2004 SC 486 and Indian Banks’ Association v.
Devkala Consultancy Service
MANU/SC/0355/2004: AIR 2004 SC 2615.”
(Emphasis supplied)
W.P.(C) No.24289 of 2012 Page 39 of 42
35. In K.L. Subbayya (supra), the Supreme Court held
as follows;-
“3.In the instant case, it is admitted that the
inspector who searched the car of the appellant
had not made any record of any ground on the
basis of which he had a reasonable belief that an
offence under the Act, was being committed before
proceeding to search the car and thus the
provisions of Section 54 were not at all complied
with.”
36. Admittedly, the Notification dated 10th December,
2000 has been made in exercise of power conferred by Clause-
27 of the Control Order, 1985, vide which all the Assistant
Agriculture Officers so also Junior Agriculture Officers were
notified to be the “Inspector of Fertilisers” for the purpose of
Control Order, 1985. So far as the Notification dated 7th
August, 2004, the same has been made in exercise of power
conferred by clause (s) of Section 2 of the Code of Criminal
Procedure, 1973 regarding “Police Station” to register a case
for committing any offence, including offences under the E.C.
Act, 1955 (10 of 1955). That apart, the learned State Counsel
(Vigilance) also failed to produce the Gazette Notification in
proof of notifying the said Notification dated 10th December,
2000. However, even if it is presumed to have been duly
notified in the Gazette, this Court is of the view that the stand
of the State that in view of the notification dated 07.08.2004
W.P.(C) No.24289 of 2012 Page 40 of 42
the Opposite Party No.4 was competent to exercise powers of
Inspector, in terms of Clause-28 of the Control Order, 1985, is
misconceived and untenable.
37. Law is well settled that if the statute provides for a
thing to be done in a certain way, the same is to be done in
that way or not at all. Other methods or mode of performance
are impliedly and inevitably forbidden. Law is also well settled
that if the power has been vested with a particular Authority,
he has to exercise the same or not at all.
38. However, from the discussions made above so also
settled position of law and the notification made by the State
Government under the Fertiliser Control Order, 1985
regarding the power of the Inspector regarding search and
seizure and initiation of confiscation proceeding, this Court is
of the view that the Opposite Party No.4, who has also been
arrayed as Opposite Party No.5 by name, is incompetent to
enter into the premises of the Petitioner for the purpose of
search and seizure so also initiation of confiscation proceeding
in terms of Section 6A of the Act, 1955. This Court is of
further view that very initiation of the confiscation proceeding
being defective and without authority, deserves interference.
Accordingly, it is held that the Opposite Party No.4 has no
jurisdiction to conduct search and seizure under the Control
W.P.(C) No.24289 of 2012 Page 41 of 42
Order, 1985. Hence, the report under Annexure-1 so also the
confiscation proceeding, initiated against the Petitioner based
on the said report, registered as Misc. Case No.43 of 2012,
and the order passed by the Authority dated 29.08.2012 in
Misc. Case No.43 of 2012 are hereby set aside.
39. With the said observation and direction, the writ
petition stands allowed and disposed of. No order as to cost.
………………………….
S.K. MISHRA, J.
Orissa High Court, Cuttack.
Dated, the 24th December, 2024 / Mona
Signature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 13-Jan-2025 10:22:33
W.P.(C) No.24289 of 2012 Page 42 of 42
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