Jharkhand High Court
Sheela Sharma vs The State Of Jharkhand ...... Opp. Party on 5 April, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1046 of 2013
Sheela Sharma ...... Petitioner
Versus
The State of Jharkhand ...... Opp. Party
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Sameer Saurabh, Advocate For the State : Mr. Shiv Shankar Kumar, A.P.P. 07/Dated: 05/04/2023
Heard Mr. Sameer Saurabh, learned counsel for the petitioner and Mr. Shiv Shankar Kumar, learned counsel for the State.
2. The present petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 09.10.2012 in connection with Chutia P.S. Case No. 187 of 2012, corresponding to G.R. No. 4694 of 2012, pending in the Court of learned Sub-Divisional Judicial Magistrate, Ranchi.
3. The F.I.R. has been lodged alleging therein that on 23.08.2012 after getting the order of the Deputy Commissioner for conducting raid in relation to commercial use, sell and storage of LPG 14.2 kg, conducted raid at M/s Sheela Kitchen Centre. On search six illegal cylinders of 14.2 kg were found in the said shop and on being asked from the persons present there, they failed to give any reply. After that all the said six LPG cylinders were seized and handed over to M/s Indraprastha Gas Agency Chutia. Lastly it has been concluded that the owner of the said shop was involved in illegal business and storage of 14.2 kg LPG gas cylinder and accordingly, it has been requested to lodge a case against the petitioner being owner of the said kitchen Centre and hence this case was instituted against the petitioner for the offence under section 7 of the Essential Commodities Act.
4. Learned counsel for the petitioner submits that learned court has taken cognizance under section 7 of the Essential Commodities Act. He further submits that in the entire contents of F.I.R there is no allegation that the 2 petitioner has violated any specific control order and in absence of the same the order taking cognizance is bad in law. He further submits that search and seizure was conducted by Supply Inspector and in view of Section 13 of L.P.G. (Regulation of Supply and Distribution) Order, 2000 he is not competent to lodge F.I.R and in view of this section only person authorized by the Central Government or State Government can lodge the case. He further submits that as per F.I.R. only six cylinders were found from the premises of the petitioner and that happened due to some function/ritual was going on in the house of the petitioner because of the birth of three babies by petitioner's daughter-in- law and for which the petitioner arranged six cylinders from her neighbours for the said function. He submits that in that view of the matter, the entire criminal proceeding may be quashed.
5. Mr. Shiv Shankar Kumar, learned counsel for the State submits that the learned court has rightly taken cognizance and Deputy Commissioner has authorized the person to lodge the case.
6. In view of above submissions of the learned counsel for the parties, the court has gone through the materials on record and finds that admittedly six cylinders were found in the premises of the petitioner for which F.I.R. was lodged.
7. Section 7 of the L.P.G. (Regulation of Supply & Distribution) Order, 2000 reads as under:-
7. "Possession, supply or sale of liquefied petroleum gas equipments -
(1) No person shall - (a) supply or sell filled or empty cylinder, gas cylinder valve and pressure regulator to any person other than a Government Oil Company or a parallel marketeer;
(b) unless authorized by a Government Oil Company or a parallel marketeeer, supply or sell filled or empty cylinder, gas cylinder valve and pressure regulator to any person other than a consumer;
(c) possesses filled or empty cylinder, gas cylinder valve and pressure regulator, unless he is a distributor or a consumer.
2. Every manufacturer of cylinder, gas cylinder valve and pressure regulator shall destroy by crushing those cylinders, cylinder valves and pressure regulators which do not conform to the Indian Standards Specifications"
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8. On perusal of the said provision, it transpires that if any person possesses, filled up or empty cylinder, gas cylinder valve and pressure regulator without being a distributor or a consumer, he can be prosecuted under Section 7 of the Essential Commodities Act for contravening the provision as contained in Clause 7(c) of the said order. However, for effecting search and seizure, it is only the officer authorized by the Central Government or the State Government or any officer of the Government Oil Company not below the rank of Sales Officer authorized by the Central Government with a view to secure compliance of the order may effect search and seizure. The said provision is enshrined in clause 13 of the Order which reads as follows:
13. "Power of entry, search and seizure - (1) Any Officer of the Central or the State Government not below the rank of Inspector duly authorized by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of Government Oil Company not below the rank of Sales Officer, authorized by the Central Government, may, with a view to securing due compliance of this Order or any other order made thereunder:
(a) stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product.
(b) enter any search any place,
(c) seize stocks of liquefied petroleum gas along with container and/or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made.".
9. Looking into the documents annexed with the F.I.R. it transpires that Deputy Commissioner has authorized the person to search and seizure and in view of Clause 13 of the order only Central Government or the State Government are competent to authorize any person for search and seizure. In the case in hand there is no authorization order either by the Central Government or State Government and in that view of the matter allowing the proceeding to be continued, will amount abuse of process of law.
10. Status report suggests that substance has been explained to the accused and the case has been fixed for evidence.
11. It is well settled that if the Court comes to the conclusion that allowing the proceeding will amount the abuse of process of law, the Court can 4 interfere with the case as has been held in the case of "Rajiv Thapar and others Vs. Madan Lal Kapoor" (2013) 3 SCC 330 wherein para 29 the Hon'ble Supreme Court has held as under:-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
12. Accordingly, the entire criminal proceeding including order taking cognizance dated 09.10.2012 in connection with Chutia P.S. Case No. 187 of 2012, corresponding to G.R. No. 4694 of 2012, pending in the Court of learned Sub-Divisional Judicial Magistrate, Ranchi are quashed. This petition stands disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.) Satyarthi/