Punjab-Haryana High Court
Vijay Kumar @ Vijay Tina vs State Of Punjab on 27 February, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.M-18547 of 2008 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No.M-18547 of 2008
Date of Decision:- 27.2.2012
Vijay Kumar @ Vijay Tina ...Petitioner
Vs.
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.P.S.Ahluwalia, Advocate for the petitioner.
Mr.Palwinder Singh, Senior DAG Punjab for the respondent.
Mehinder Singh Sullar, J. (Oral)
Tersenessly, the facts and material, culminating in the commencement, relevant for the limited purpose of deciding the sole controversy, involved in the instant petition and emanating from the record, are that, on 18.11.2007, a police party headed by the SHO of Police Station City Rajpura, District Patiala, was on patrol duty. As soon as, at about 7.30 PM, the police party reached AP Jain Hospital Chowk, in the meantime, a secret information was received to the effect that petitioner-accused Vijay Kumar alias Vijay Tina and Ved Parkash son of Goverdhan used to illegally sell the kerosene at higher rate. It was also informed that on that day, they were bringing the kerosene from Patiala to Rajpura and if a Nakabandi is arranged, then the aforesaid vehicle alongwith the kerosene and accused can be apprehended. Considering the information to be correct and reliable, the police party arranged a checking post. During the course of checking of the vehicle TATA 207, bearing No.PB-11-AC-7226, ten drums of kerosene, each containing 220 litres, were recovered from the possession of the accused.
CRM No.M-18547 of 2008 -2-
2. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that since the accused used to possess and sell the kerosene at higher rate and ten drums of kerosene were recovered from their possession/vehicle, so, they have committed the offence punishable under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as "the E.C.Act"). In the background of these allegations, on the basis of aforesaid recovery of kerosene and in the wake of statement of SHO, a criminal case was registered against the petitioner-accused and his other co-accused, namely, Gurmit, Des Raj and Ved Parkash, by means of FIR No.293 dated 18.11.2007 for the commission of the offences punishable under Section 7 of the E.C.Act and Section 420 IPC by the police of Police Station City Rajpura. After the completion of the investigation, the police submitted the challan/final police report under section 173 Cr.PC (Annexure P1) against the accused, in the manner depicted hereinbefore.
3. Faced with the grave situation, the petitioner-accused did not feel satisfied with the initiation of criminal prosecution by the police and preferred the present petition for quashing the impugned FIR and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC.
4. The case set up by the petitioner-accused, in brief in so far as relevant, was that there is no evidence on record whatsoever to indicate that the kerosene was meant for sale or any actual sale had taken place. Mere possession of kerosene in itself was stated to be not an offence, in view of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 (in short "the relevant Order"). According to the petitioner that in the present case, the search and seizure were not in accordance with the provisions of the E.C.Act. Neither the police was competent to seize the kerosene nor empowered to file the challan (Annexure P1) against the accused. On the strength of the aforesaid grounds, the petitioner sought to quash the impugned FIR and all other subsequent proceedings CRM No.M-18547 of 2008 -3- arising therefrom as described hereinabove.
5. The respondent refuted the prayer of petitioner and filed the reply, inter-alia taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. The prosecution claimed that the challan has already been presented in the Court and as the petitioner has committed the indicated offences, therefore, no ground for quashing the criminal prosecution is made out. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that State of Punjab has reiterated the allegations contained in the impugned FIR. However, it will not be out of place to mention here that the respondent has stoutly denied all other allegations contained in the main petition and prayed for its dismissal.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this respect.
7. As is evident from the record, that the present case was registered by the police on the ground that ten drums of kerosene meant for illegal sale were recovered from the possession/truck of the accused. In this manner, the accused have been charged for the violation of clauses 3(2) and 4(1)(c) of the relevant Order. As is clear that clause 9 of the relevant Order is as under:-
"9. Power of entry, search and seizure-- (a) An officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorized by such Government and notified by the Central Government or any officer authorized and notified by the Central Government, or any officer not below the rank of Sales Officer of a Government Oil Company authorized by the Government and notified by the Central government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of satisfying himself that this order or any order made thereunder has been complied with:
(i) xxx xxx xxx.
(ii)enter or search any place with such aid or assistance, as may be CRM No.M-18547 of 2008 -4- necessary; and
(iii)seize and remove with such aid or assistance, as may be necessary, books registers and other records pertaining to kerosene business, along with vehicle, vessel or any other conveyance used for carrying such stock, if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorize the taking of all measures necessary for securing the production of the kerosene at the Office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 to 1955), for their safe custody pending such procedures.
(b) The provisions of Sec.100 of the Code Criminal Procedure, 1973 [2 of 1974] relating to search and seizure shall, so far as may be, apply to searches and seizures under this Order."
8. Not only that, Clause 3 (2) escalates that "no dealer appointed under the public distribution system or a transporter shall sell, distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for".
9. Likewise, clause 4(1)(c) postulates that "no dealer having stock of kerosene supplied under the public distribution system at the business premises, including the place of storage, shall sell, distribute or supply kerosene at a price higher than that fixed by the Government or Government Oil Company." The word "dealer" has been defined under clause 2(c), to mean a person, firm, association of persons, company, institution, organization or a co-operative society approved by Government or company or State or Central Government or a parallel marketeer and engaged in the business of buying and selling kerosene. Likewise, according to clause 2(j), "public distribution system" means the system of distribution, marketing or selling of kerosene at declared price through a distribution system approved by the Central or State Government.
10. A conjoint and meaningful reading of these provisions would reveal that only an officer of the department of Food and Civil Supplies of the CRM No.M-18547 of 2008 -5- Government, not below the rank of an Inspector, authorized by the State Government, was competent and police officer did not have the jurisdiction/power to enter, search any place or vehicle or seize any article under the Act. Moreover, it was for the prosecution to prove that the petitioner was actually a dealer and the kerosene was supplied to him under the public distribution system, which are totally lacking in the instant case.
11. Ex facie, the celebrated argument of the learned State counsel that the police has the power to take cognizance, search any place or vehicle and seize the articles, is not only devoid of merit but misplaced as well. It is a matter of fact that a specific procedure has been provided under the Act and no other person except the person authorized under clause 9 of the relevant Order has the power to enter any place, search and seize the vehicle/articles for the commission of the offence punishable under the EC Act. That means, the provisions of special statute (clause 9) with regard to entry, search and seizure will prevail over and above the general provisions of law.
12 Sequelly, it is not a matter of dispute that it is well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning, if such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the CRM No.M-18547 of 2008 -6- legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise, in view of law laid down by Hon'ble Apex Court in case Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation 2009(3) R.C.R.(Criminal) 586 (SC). Otherwise, the very aim and object of the EC Act to avoid false implication by the police in such matters would pale into insignificance.
13. Therefore, the legislative intent underlying the relevant Order is clear and explicit that in order to invoke a penal provision, the prosecution was required to prove all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order and to observe the strict compliance of the provisions of clause 9 contained therein, with regard to entry, search and seizure of the property in the manner described hereinabove.
14. Meaning thereby, that being the legal position on record, neither the police was competent to search and seize the vehicle/kerosene of the petitioner nor empowered to register a case against the accused. Therefore, the entire process of search and seizure was illegal, without jurisdiction, goes to the very root of the case and vitiated the investigation in this respect. This grave illegality and material procedural irregularity entail the consequences of quashing the FIR in this relevant connection. This matter is no more res integra and is now well settled.
15. An identical question came to be decided by this Court in cases Aswhani Kumar v. The State of Haryana CRA No.989-SB of 1998 decided on 23.2.2010; State of Haryana v. Ram Niwas 2004(1) RCR(Criminal) 693; Karam Chand and another v. State of Haryana 2003(4) RCR (Criminal) 622; Raj Narain alias Kuka v. State of Punjab 2003(2) RCR (Criminal) 88; Arvind Katoch v. State of Punjab 2001(4) RCR (Criminal) 608 and Suresh Kumar v. State of Haryana CRM No.M-18547 of 2008 -7- 1996(2) RCR(Criminal) 365. Having interpreted the relevant provisions, it was ruled that "the police is neither empowered to search and seize the kerosene/case property nor has the jurisdiction to prosecute the accused under Section 7 of the E.C.Act. Thus, the contrary contentions of learned State counsel "stricto sensu"
deserve to be and are hereby repelled under the present set of circumstances as the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of this case and is the complete answer to the problem in hand.
Therefore, the criminal prosecution deserves to be quashed. If the same is allowed to continue, then it will inculcate and perpetuate injustice to the petitioner, which is not legally permissible.
16. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
17. In the light of aforesaid reasons, the present petition is accepted.
Consequently, the impugned FIR No.293 dated 18.11.2007 and all other subsequent proceedings arising therefrom, are hereby quashed and the petitioner is discharged from the indicated criminal case, in the obtaining circumstances of the case.
(Mehinder Singh Sullar) Judge 27.2.2012 AS Whether to be referred to reporter ? Yes/No