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Judgment
Navin Sinha, J.—In the order dated 12.4.2004 the words "Sub Inspector" be read as "Assistant Sub Inspector".
Heard learned Counsel for the Petitioner and the learned Counsel for the State.
The present application has been-filed for quashing the FIR and the entire proceeding in Khagaria PS Case No. 367/2003 registered under Sections 3 and 4 of the Bihar Ban on Lottery Act, 1993. The learned Counsel for the Petitioner submits that u/s 7 of the Bihar Ban on Lottery Act, 1993 the power of entry and search reads it would be for any Police Officer net below the rank of a Sub Inspector authorised by the State Government in this behalf by general or special order in writing....
Placing reliance upon the said provision, learned Counsel for the Petitioner submits that from a bare perusal of the FIR it is apparent that in the present case entry and search was admittedly carried out by the Assistant Sub Inspector of Khagaria PS. It is accordingly submitted that the entire prosecution is bad as being unauthorised and is fit to be quashed on that ground alone. Learned Counsel for the State opposes the application and submits that the same calls for no interference at this stage.
The law enjoins that the power for entry and search under the aforesaid Act has been vested by the statute in a person of the rank of Sub Inspector or above and that too requires a special authorisation in writing from the State Government. In the present case, admittedly the entry and search has been carried out by a person not authorised to do so under the provisions of Section 7 of the Act. Similar provisions are contained under the Bihar Trade Articles (Licences Unification) Order, 1984 with regard to powers for entry, search and seizure. This Court in its judgment reported in Kanhaiya Sah Vs. The State of Bihar and Others, has held that the sine qua non of such prosecution is a valid initiation of the proceeding by a person competent to do so in law. If the prosecution is bad in law at the very inception, inasmuch as the prosecution is instituted by a person not competent to do so in law, all subsequent actions would be rendered invalid. In such a situation, there is no justification for the present prosecution to be allowed to continue. The prosecution of the Petitioner in Khagaria PS Case No. 367/2003 is accordingly quashed on the ground that the entry and search having admittedly been done by an Assistant Sub Inspector who is not authorised under law to do so, continuance of the present prosecution would be an abuse of the process of the Court.
This application stands allowed.