Andhra HC (Pre-Telangana)
D. Venkatramulu vs Inspector Of Police, Vccsd on 25 April, 2002
Equivalent citations: 2002(5)ALD682, 2002(2)ALT(CRI)198
ORDER V.V.S. Rao, J.
1. This writ petition is filed praying for a writ of mandamus declaring the action of the respondent, namely, Inspector of Police, Vigilance Cell of Civil Supplies Department, Mababubnagar, in filing F.I.R. No. 61/VC.MBNR/2000 dated 24-6-2000, as illegal, void and without jurisdiction.
2. The petitioner is proprietor of M/s. D.B.K. Traders, a dealer of Indian Oil Corporation at Gadwal. It is stated that the respondent conducted panchanama on 24-6-2000 and seized the stocks for alleged contravention of Clause 2(e)(i) of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 (for short 'the Central Control Order') and Clauses 12(i) and (ii) and 25 of Andhra Pradesh Petroleum Products (Licensing and Regulation of Supply) Order, 1980 (for short 'the A.P. Control Order') and conditions 2, 5 and 6(i) of the Licence issued under A.P. Control Order read with Sections 7 and 8 of the Essential Commodities Act, 1955 (for short "the Act'). Thereafter, the respondent registered a crime against the petitioner in F.I.R. No. 61/VC.MBNR/2000 on 24-6-2000 and sent the same to the Court of Judicial Magistrate of First Class, Gadwal. In the F.I.R. it is alleged that the petitioner (Accused No. 1) with the assistance of his son Kalyan Chakravarthi (Accused No. 2) has been indulging in clandestine business of Motor Spirit (MS) and High Speed Diesel (HSD) without maintaining true and correct records and gaining illegal profits. Accused No. 2 was arrested on 25-6-2000 at 11.15 a.m. and stock of 5228 litres of MS and 5857 litres of HSD worth about Rs. 2,40,546/-was seized. In the panchanama it is alleged that the petitioner has violated the Central Control Order, A.P. Control Order and conditions of licence, as mentioned above. Filing of F.I.R. is challenged mainly on the ground that after repeal of Central Control Order, 1990 by Control Order 1998, the Inspector of Police, is not competent to search and seize petroleum products, and therefore, he is not competent to file FIR.
3. The petitioner filed this writ petition on 13-7-2000. This Court, while ordering notice before admission, directed the learned Government Pleader for Civil Supplies to file counter-affidavit. After service of notice, the matter came up for admission. Since the respondent has filed counter, with the consent of the learned Counsel for the parties, the matter was taken up for final disposal.
4. The respondent denied the allegations made by the petitioner stating that the panchanama was conducted on 24-6-2000 and 25-6-2000, jointly by the Mandal Revenue Officer, Gadwal, the Inspector of Police (VCCSP), and the Mandal Revenue Officer is authorised to enter, search and seize the petroleum products, under the Central Control Order read with the relevant Government Order. Reliance is also placed on Clause 32 of the A.P. Control Order, which empowers the licensing authority or any other specified officers of the Revenue or Civil Supplies Department to inspect and search the licensed premises with such assistance, as is required, from the other officers. It is also stated that during the search it was found that there were unexplained stock variations even after allowing the permissible stock variation towards evaporation or annual loss which is 0.75% on annual average sales of 0.600 kilolitres for kerosene and 0.60% on annual average sales of above 600 kilolitres for HSD towards handling loss and 0.20% to 0.25% on annual average sales of above 600 kilo litres towards shrinking losses on MS and HSD. It is also stated that the petitioner failed to maintain the business premises as well as the true and correct accounts for the purchase and sales of petroleum products and also failed to maintain adequate stocks in the premises. The samples drawn by the Mandal Revenue Officer (Gazetted), Gadwal were sent for analysis on 27-6-2000. The Mobile Laboratory of the Indian Oil Corporation, Sanathnagar, tested the samples on 7-7-2000 and opined that the "product may not be Motor Spirit".
5. The learned Counsel for the petitioner, Sri V.H.V.R.R. Swamy, submits that the search conducted by the respondent-Inspector of Police VCCSD, is illegal and unauthorised in law, and therefore, the FIR filed by him cannot be the basis for initiating criminal action against the petitioner. Per contra, the learned Government Pleader for Civil Supplies, Smt. Nanda Ramachander Rao, submits that the search was conducted by the Mandal Revenue Officer (Gazetted), Gadwal with the assistance of the respondent and on the basis of the panchanama conducted and drawn by them, the respondent filed the F.I.R. She submits that as per the provisions of the Essential Commodities Act, 1955 any public officer is competent to prosecute an offender, subject to certain legal requirements like sanction of the prosecution, and that even before the respondent could take other steps, the petitioner has filed this writ petition.
6. The short question that arises for consideration is whether in respect of an offence under Sections 7 and 8 of the Act, the Inspector of Police, VCCSD, is competent to file F.I.R.?
7. The Essential Commodities Act, 1955 is a special enactment. Under Section 7 of the Act, it shall be an offence for any person to contravene any Control Order made under Section 3 of the Act. The offence is punishable with imprisonment for a term, which may extend to one year and also liable for fine. Section 7 also provides for other offences: A person shall be punishable with imprisonment, which shall not be less than three/six months or which may extend to seven years. Any person, who attempts to contravene or abets the contravention of any order made under Section 3 of the Act, shall be deemed to have contravened that order and shall be liable for punishment. All the offences under the Act are cognizable and non-bailable offences (Section 10-A). Section 11 of the Act lays down that no Court shall take cognizance of any offence punishable under the Act, except on a report in writing of the facts constituting such offence made by a person, who is a public servant, as defined in Section 21 of the Indian Penal Code, 1860 or any person aggrieved or any recognized consumer association, whether such person is a member of that association or not. All the offences are to be tried by a special Court, constituted by the State Government. Section 12 of the Act was repealed by the Essential Commodities (Special Provisions) Act, 1981 (Act 18 of 1981), and it was substituted by Section 12-A providing for constitution of Special Courts. The Government in exercise of the power conferred on it by Section 12-A of the Act, constituted Special Courts initially for a period of ten years with effect from 1-9-1982, and thereafter, it was extended by another five years by Act 34 of 1993 with effect from 27-8-1992, and after the expiry of the said period, the Central Government issued Ordinance Nos. 21 of 1997 on 30-10-1997 and 13 of 1998 on 25-4-1998, extending the validity of Section 12-A of the Act, which came to an end on 24-10-1998. Subsequently, there was no extension made either by way of an Ordinance or by an Act of the Parliament, and the resultant effect is that the Special Courts ceased to function, and presently, the matters arising under the Essential Commodities Act, 1955, are being dealt with by the Courts having jurisdiction under the said Act.
8. We may also notice the relevant Control Orders to the extent necessary. Section 3 of the Act provides that the Central Government or the State Government, as the case may be, may, by an order (Control Order) provide for regulating or prohibiting the production, supply and distribution of any essential commodities. In exercise of such powers, the Central Government made the Motor Spirit and\High Speed Diesel (Prevention of Mal-practices in Supply and Distribution) Order, 1990 (for brevity 'the 1990 Control Order'). It is not denied before this Court that under the 1990 Control Order, any police officer not below the rank of Inspector is entitled to search and seize. The 1990 Control Order was repealed. By a notification, the Central Government in GSR 772 (E), dated 28-12-1998, made Motor Spirit and High speed Diesel (Regulation of Supply and Distribution and Prevention of Mal-practices) Order, 1998 (for brevity 'the 1998 Control Order'). As per Clause 7 of the 1998 Control Order, the provisions contained therein shall have overriding effect over any order made by the State Government. Clause 4 thereof provides for power of search and seizure and says that any Gazetted Officer of the Central or State Government or any police officer not below the rank of Deputy Superintendent of Police, duly authorized by the Central or State Government or any officer of the concerned Oil Company, not below the rank of Sales Officer, is entitled to search and seize.
9. The Government of Andhra Pradesh under Clause 4(1) of the 1998 Control Order, issued G.O. Ms. No. 17, Food and Civil Supplies Department, dated 29-2-2000, authorizing all officers not below the rank of Assistant Supply Officer/ Assistant Grain Purchasing Officer of Civil Supplies Department, and/or Mandal Revenue Officer (Gazetted) in the State of Andhra Pradesh and all officers of Vigilance Cell not below the rank of Deputy Superintendent of Police in the State of Andhra Pradesh and certain other officers to search and seize any licensed premises contravening the 1998 Control Order. It remains uncontroverted that on 24-6-2000 and 25-6-2000, the Mandal Revenue Officer (Gazetted), Gadwal along with the respondent conducted search of the petitioner's petroleum outlet, and therefore, the search and seizure of petroleum and High speed diesel, effected by the Mandal Revenue Officer (Gazetted) and the respondent, under a Panchanama, cannot be said to be illegal nor does it suffer from any procedural irregularity.
10. It therefore has to be seen whether the action of the respondent in filing the F.I.R. before the Judicial Magistrate of I Class, Gadwal, is illegal and without jurisdiction. In my considered opinion, the submission of the learned Counsel for the petitioner that the action of the respondent in filing the F.I.R, is not authorized and is without jurisdiction, is devoid of merits and cannot be accepted for reasons more than one.
11. Under Section 11 of the Act, a Court is competent to take cognizance of an offence punishable under the Act either on a report in writing by a person who is a public servant, as defined in Section 21 of the Indian Penal Code, 1860 or any person aggrieved or any recognised consumer association. Indeed, under Section 154 of the Code, every information relating to commission of a cognizable offence can be given by any person to an officer in-charge of a police station, and such officer shall have to record the information in writing and forward a copy of the information to a Magistrate empowered to take cognizance of such offence under Section 157(1) of the Code. Further under Section 156(1) of the Code, an officer in-charge of a police station is competent to investigate any cognizable case without the order of a magistrate, and no proceeding of police officer in any case at any stage can be questioned on the ground that the case was one which such officer was not empowered to investigate. Chapter XIV of the Code deals with conditions requisite for initiation of proceedings. Under Section 190(1) of the Code, any Magistrate of I Class is empowered to take cognizance of any offence (a) upon receiving a complaint on facts which constitutes such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. In a case falling under either (a) and (b), even if an offence is taken cognizance of by a Magistrate, not empowered by law, the proceedings shall not be set aside merely on the ground that he not being empowered, is not entitled to take cognizance (See Section 460(e) of the Code). It is only in a case falling under Section 191(1)(c) of the Code that as per Section 461 thereof, the proceedings of a magistrate not being empowered by law shall be void.
12. The judgment of the learned single Judge, upon which the learned Counsel for the petitioner placed reliance, in my considered opinion, is not applicable to the facts of the present case for the reason that in the said case, the search and seizure was conducted by the Inspector of Vigilance, which he was not authorized under Clause 4(a) of the 1998 Control Order. The view I have taken is supported by two judgments of this Court. In S.P.R.M. Vithal v. Asst. Director of Agriculture, 1987 (1) APLJ 315, (Jayachandra Reddy, J, as his Lordship then was) considered the question whether Section 12-AA(1)(e) of the Act, which was introduced by Amending Act, 1981, rendered Section 11 of the Act nugatory and inoperative, and held:
...But under Section 11 such a Court shall also take cognizance of any offence punishable under the Act, on the basis of a complaint made by a person, who is a public servant, as defined in Section 21 of the IPC. Under the provisions of the Cr.PC in general, taking cognizance by different methods is provided for, and Section 190 Cr.PC is the relevant provision, under which cognizance can be taken on the basis of a complaint or a police report or upon information. So far as the Essential Commodities Act with the amended provision, is concerned, there is no question of two procedures being followed, in respect of the two types of cases taken on file by the Special Court either under Section 11 or under Section 12-AA(1)(e) inasmuch as the Special Court has to follow a summary procedure only in respect of all the cases, irrespective of the method by which cognizance is taken. Therefore, there is no incongruity regarding the procedure also in respect of both types of case. It is well recognised principle of criminal jurisprudence that any one could set the law in motion and that being so there is no need to read any restriction regarding taking of cognizance into the Act when the Legislature has not intended the same.
13. The judgment in S.P.R.M. Vithal, was followed by (Y. Bhaskar Rao, J, as his Lordship then was) in Public Prosecutor v. Sudhakar, 1988 (1) APLJ 353, wherein it was held:
...Section 11 of the principal Act is not touched and that being the position, the question is whether Section 12-AA(f)(e) operates as complete bar for taking cognizance as provided under Section 11 which is also in operation. It must be noted that if the Legislature wanted to completely remove Section 11 it ought to have removed the same, but Section 11 is not touched. Therefore, it cannot be presumed that there is implied bar for taking cognizance under Section 11. In Vithal v. Asst. Director of Agriculture, the complaint was filed by an officer of the Agricultural Department and a similar objection was raised. This Court held that the complaint filed by the Public Servant is maintainable and the Court can take cognizance. In view of the judgment of this Court, I do not want to follow the judgments of other High Courts.
14. The various provisions, as noticed supra, would clinchingly show that the respondent being an Inspector of Vigilance Cell, is competent to file the F.I.R. though by reason of Clause 4(a) of the 1998 Control Order read with G.O. Ms. No. 17, dated 29-2-2000, he is not an officer authorized to conduct search and seizure. The panchanama discloses that the Mandal Revenue Officer, Gadwal, the Deputy Tahsildar (e), Gadwal, the Village Administrative Officer, Gadwal, and the Inspector of Police, VCCSD, Mahabubnagar, conducted and concluded the panchanama on 24-6-2000 and 25-6-2000, and on the basis of such panchanama, the respondent registered a case in F.I.R. 61/VC-MBNR/ 2000, and sent information to the Judicial Magistrate of I Class, Gadwal. In law, generally any person is competent, and more so it is his duty, to give information of commission of cognizable offence to a police station, and such right is conferred by Section 11 of the Act.
15. The writ petition is devoid of merits, and for the aforesaid reasons, it is dismissed. No order as to costs.