ORDER
Om Prakash, J.
1. On 31-1-85, Block Development Officer, Samastipur, respondent No.3, along with District Supply Officer and a police party made a surprise check of the shop of petitioner Binod Kumar Rai, a licenced retail dealer in fertiliser dealing under the name and style of M/s. Vishwakarma Khad Bhandar at Samastipur. Finding shortage of fertiliser he lodged FIR giving rise to Town P.S. Case No. 31/85 under Section 7 of the Essential Commodities Act. Thereafter, police seized his cash memo, sale register and fertiliser and prepared seizure list (Annexure 1). The Collector, respondent No. 2, initiated a proceeding under Section 6A of the Act, confiscation case No. 241/85, and issued show cause notice dated 26-3-85 (Annexure 2). He showed the cause denying the allegation. After investigation, police submitted final . report No. 13/85, dated 11-4-85 (Annexure 4) in the Court of Special Judge incharge stating that the case reported was a mistake of fact. After perusing the final report and hearing the parties, the Special Judge finally accepted the final report and discharged the petitioner by an order dated 17-5-85 passed in G.R. Case No. 136/85 (Annexure-5). The seized articles were released to him on 15-5-85 by the police.
2. Thereafter the petitioner informed the Collector that the trial court has already discharged him and the seized articles have been released. But even then the Collector proceeded with the confiscating proceeding. After hearing the parties on 28-5-85, he passed an order of confiscation (Annexure 7). Now he is about to execute the order using coercive means. In such circumstances, the petitioner moved this Court on 17-6-85 under Articles 226 and 227 of the Constitution of India for quashing of Collector’s Order dated 28-5-85 (Annexure 7). :
3. Sri Suraj Narayan Prasad Sinha, learned counsel for the petitioner has argued that seizure by the Block Development Officer was illegal and without jurisdiction as he was never appointed an Inspector of Fertilizer for the purposes of the Fertilizer (Control) Order, 1957 by the State Government by notification in the official gazette under clause 19 of the Order and hence he could not have exercise the powers of an Inspector of Fertilizer under Clause 20 of the said Order. In this connection he has referred to the case of Ram Chandra Pansari v. State of Bihar, 1988 BLJR 529 : (1989 Cri LJ (NOC) 90).
4. In Ram Chandra Pansari’s case under Rule 12 of the Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1966, a police officer not below the rank of Deputy Superintendent of Police was competent to make search and seizure unless the police officer below the rank of Deputy Superintendent of Police is specially authorised in this behalf by the State Government. It was not said that the Assistant Sub Inspector of Police who made the search and seizure was authorised in this behalf by the State Government. In view of the said Rule, it was held by a Division Bench of this Court that the search and seizure effected by Assistant Sub-Inspector of Police was a violation of Rule 12 aforesaid and search and seizure conducted in violation of the Rule rendered investigation illegal which cannot be cured and rectified.
5. In the instant case, it has not been submitted on behalf of the respondents that the Block Development Officer who conducted the search and seizure, was appointed an Inspector of Fertiliser for the purposes of Fertiliser (Control) Order, 1957 by the State Government by notification in the official gazette on or before the date of search and seizure i.e. 31-1-1985. In this view of the matter, it cannot reasonably be held that respondent, Block Development Officer, was vested with powers of an Inspector of Fertiliser and was competent or had jurisdiction to make search and seizure are under clause 20 of the Fertiliser (Control) Order, 1957, In such view of the matter, I hold that the search and seizure made by respondent Block Development Officer, was without jurisdiction and bad in the eye of law and the investigation that ensued and the confiscation proceeding which is based on such search and seizure, are without jurisdiction and illegal which cannot be rectified.
6. In the case of Sanjay Kumar Jaiswal v. State of Bihar, 1990 (2) EFR 23, it was a District Agricultural Officer who had made the search and seizure giving rise to a police case and confiscation proceeding. A notification empowering the District Agricultural Officer to exercise the power of Fetiliser Inspector was issued. But such notification was not published in the official gazette as required under the relevant rule. Then this court held that seizure of fertiliser by such District Agricultural Officer was without jurisdiction and ensuing confiscation proceeding, too, was without jurisdiction simply because no notification empowering the District Agricultural Officer to act as Inspector of Fertiliser was published in the official gazette and the confiscation case was quashed.
7. Learned counsel for the petitioner has further argued that discharge of the petitioner by the Special Judge amounts to his acquittal for the present purposes and in view of Section 6-C(2) of the Essential Commodities Act, the Collector cannot proceed to execute his order in the confiscation on case (Annexure 7) as it is illegal and without jurisdiction. The fertiliser has already been released to the petitioner on 19-5-85.
8. Where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6-A of the Essential Commodities Act, 1955, and the person concerned is acquitted and it is not possible to return the Essential Commodity seized then, Under Section 6-C(2) of the Act, such person shall except as provided in Sub-section (3) of Section 6-A, be paid the price thereof, determined in a certain manner, as if the Essential Commodity had been sold to the Government with reasonable interest to be calculated from the date of seizure.
9. I find substance in the above argument of learned counsel for the petitioner. When the accused has been discharged after acceptance of the final report submitted by the police and the seized essential commodity has been released in his favour in consequence of his discharge there remains nothing to confiscate or to execute an order of confiscation. The entire exercise of power by the Collector would be in vacuum. In such circumstances discharge amounts to acquittal for all prescribed purposes as far as the above provision of the Essential Commodities Act is concerned.
10. In the case of Gopal Sah v. Deputy Commissioner, Santhal Parganas, 1986 BLJ 589, the order of taking cognizance was set aside by the Additional Sessions Judge. In the meantime, the foodgrains seized from the petitioner had already been sold. His prayer for refund of the sale proceeds of the seized articles was rejected on the ground that order setting aside the order of cognizance does not amount to acquittal. Then it was held by this Court that a person .who was discharged could also claim the same advantage under Section 6-C(2) of the Essential Commodities Act which a person who was acquitted in a trial could get. The court directed the respondents to refund the sale proceeds but without interest.
11. The learned counsel for the State has contended that the petition is not maintainable as the petitioner has not exhausted his alternative remedy under Section 482 of the Code of Criminal Procedure. Relying on the case of Govind Saran v. State of Bihar, 1983 EFR 469 : (AIR 1983 Pat 96) learned counsel for the petitioner has submitted that the order of the Collector in question is without jurisdiction and hence question of existence of alternative remedy does not arise and the petition is maintainable. It has been held by a Division Bench of this court in the case of M/s. Govind Saran that if the order is found to be without jurisdiction, bar of existence of alternative remedy will not be attracted and the petition will be maintainable.
12. It has been found above that Collector’s order dated 28-5-85 (Annexure 7) is illegal and without jurisdiction. I am therefore of opinion that the petition for quashing such order is maintainable and existence of alternative remedy does not stand in petitioner’s way.
13. In view of the above discussion, the writ petition is allowed. Collector’s order confiscating the fertiliser (Annexure 7) is hereby quashed as illegal and without jurisdiction.