Patna High Court
Rajesh Agrawal vs State Of Bihar And Anr. on 11 September, 1998
Equivalent citations: 1999CRILJ1729
ORDER Indu Prabha Singh, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the entire proceeding of Complaint Case No. C-II (1) of 1992 instituted under Section 7 of the Essential Commodities Act (in short 'the Act') pending in the Court of Special Judge, E.C. Act, Katihar.
2. The prosecution case, in short, is that the petitioner's father carried on business in petroleum products under the name and style of M/s. Bharat Auto Service at Katihar and holds a licence bearing Licence No. 2 of 1967, renewed up-to-date, under the provisions of the law. The petitioner has got no concern with the business of his father and it is wrong to say that he is the salesman of this petrol pump. On 22-1-1992 at about 2 p.m. the District Supply Officer raided the business premises of the father of the petitioner and seized certain books of account of the petrol pump and prepared its seizure list (Annexure 1). Thereafter on 28-1-1992 he sent the complaint in the Court of Special Judge, Katihar for taking necessary action against the petitioner. On the receipt of this complaint the Special Judge by his order dated 23-9-1992 took cognizance of the offence against the petitioner and ordered for the issue of summons. The allegations made in this complaint petition were that the pump was opened at 2 p.m. on 2-2-1991 whereas the farmers had assembled there from the morning. The sale of diesel was continued till the late night of 2-2-1991. No uniformity in the sale of diesel was maintained. The sale registers were not certified. The log book numbers were not maintained in cash memo and through one cash memo sale was made to 2 to 3 persons holding different log book numbers.
3. The petitioner has contended that Clause 12 of Bihar Motor Spirit & High Speed Diesel Oil Dealers' Licensing Order, 1966 (hereinafter called 'the Order') does not empower the District Supply Officer to enter, inspect, search and seize any thing at the business premises of a dealer. On this ground it has seriously been contended that the inspection by the District Supply Officer was without jurisdiction as a result of which the entire prosecution case is a nullity.
4. The perusal of the complaint petition will show that it was filed on the basis of an enquiry made by an Executive Magistrate, Katihar. An Executive Magistrate is also not one of the persons authorised under Clause 12 of the Order to make seizure and/or inspection of a petrol pump. In this view of the matter also the entire proceeding including the search and the seizure made by the District Supply Officer will become illegal in view of the principle of law laid down in the case of Kanhaiya Sah v. The State of Bihar 1991 BBCJ 638. The allegations made in the complaint petition make out no offence punishable under Section 7 of the Act. Under the licensing Order no time is fixed for opening/closing a petrol pump. Since the supply of diesel was ordered to be made in presence of an Officer of the Supply Department by the district administration; and since no officer of the Department was available till 2 p.m.; the sale of diesel was started at the said time. The alleged occurrence is said to have taken place on 2-2-1991 whereas the cognizance in this case has been taken on 23-9-1992. Since the offences alleged against the petitioner are covered under Section 3(2)(h)(i) of the Act which is punishable for a period of one year only no cognizance in this case could have been taken after lapse of one year. The present prosecution has been instituted without obtaining the sanction of the competent authority as required under proviso to Clause 6 of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 (1977 Order). On these grounds it has been contended that the entire proceeding instituted against the petitioner be quashed.
5. On behalf of the State a counter affidavit has been filed in which it has been stated that District Supply Officer is a person authorised under Clause 12 of the Bihar Motor Spirit & High Speed Diesel Oil Dealers' Licensing Order, 1990. It has also been mentioned under Sub-section (1) of Section 7 and the same was issued through G.S.R. 3 dated 3rd April, 1991, according to which Governor of Bihar was pleased to authorise a number of Officers including the District Supply Officer under Clause 12 of this Order. Thus it has been submitted through counter-affidavit that the District Supply Officer is a person authorised under Clause 12 of this order.
6. I have heard the parties in detail. The learned counsel appearing on behalf of the petitioner has supported the contentions raised by him in this application. The learned counsel for the State has challenged those contentions. However, in view of the importance of those contentions it has become necessary for me to examine them in detail.
7. The first ground taken by the petitioner is that the District Supply Officer was not competent to inspect search and seize. In support of his contention the learned counsel appearing on his behalf has placed reliance on Clause 12(1) of this Order which runs as follows :-
12. Power of entry, inspection, search, seizure etc.- (1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer, Incharge Tyre Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub-Divisional Magistrate, Superintendent of Police, Deputy Superintendent of Police, other Police officer not below the rank of Deputy Superintendent of Police or any other person authorised in this behalf by the State Government, viz with such assistance as he may think fit....
8. It has been pointed out before me that this clause does not cover the District Supply Officer who is said to have conducted the raid and affected the search and seizure in this case. A perusal of Clause 12 of this Licensing Order will clearly show that the District Supply Officer does not figure in it. On behalf of the State it has been submitted that the District Supply Officer will be covered under the clause "any other person authorised in this behalf by the State Government" as according to the learned A.P.P. by a notification and order issued in G.S.R. III dated 3rd April, 1991 the Governor of Bihar was pleased to authorise the District Supply Officer under Clause 12. There are, however, certain defects in accepting this submission of the learned A.P.P. In the first place he has referred to Clause 12 of Bihar Motor Spirit and High Speed Diesel Licensing Order, 1990. As a matter of fact he has not been able to produce this 1990 Order before me. On the other hand, it appears that this Order is of the year 1966 and not of the year 1990. In the book by Shri N. K. Malhotra and D. S. Sanjai under heading Bihar Control Orders published in the year 1994 there is no such order of the year 1990 given in Part II under the heading Bihar Orders. As a matter of fact even in Part III of this book which deals with Central Orders there is no such Order under the caption "Bihar Motor Spirit and High Speed Diesel Licensing Order, 1990". No doubt there is one order under the heading Motor Spirit and High Speed Diesel "prevention of mal practice in supply and distribution" Order, 1990. But the learned A.P.P. has not referred to it in his counter affidavit. Even if it be presumed for a moment that probably the learned A.P.P. had this order in mind its Clause 7, which gives the power to search and seize, clearly states that any Officer of the State Government not below the rank of an Inspector in the Department of Food and Civil Supply duly authorised and notified in the Bihar Gazette by such State Government can enter and search any business premises of the dealer. Here in the present case the District Supply Officer for the moment is working with the district administration and not in the department of Food and Civil Supply. Moreover he has to be duly authorised by notification in the Bihar Gazette vesting him with the power of search and seizure. As pointed out above the present case was not instituted for the violation of this Central Order. In this connection reference may be made to the complaint petition which has been filed for taking action under Section 7 of the Act without disclosing which provision of any particular order was breached. In no case in this complaint petition any reference has been made to the above mentioned order of the Central Government. As such the learned A.P.P. cannot take any advantage of the Central Order. Moreover as noticed above the District Supply Officer does not come within the sweep of Clause 7 of the Central Order. So far Section 12 of the State Order is concerned there also no notification has been brought on the record to show that the District Supply Officer has been authorised to search and seize any business premises.
9. In the counter affidavit the learned A.P.P. has referred to an order issue in G.S.R. III dated 3rd April, 1991 by the State Government according to which the Governor of Bihar was pleased to authorise the District Supply Officer to search and seize the business premises. The Gazette notification contained this order has not been produced. Only in the counter-affidavit this order is sought to be mentioned. In this connection my attention has been drawn to the method prescribed for proving any Gazette notification. It has been submitted that under Indian Evidence Act a particular mode has been prescribed to prove a notification issued by the Government and recourse to that mode is necessary to prove that notification. In this connection my attention has firstly been drawn to Section 74 of the Evidence Act which says that documents forming the acts or record of the acts of official bodies and tribunals and of public officers of any part of India shall be public documents. From this it would appear that any notification issued by the Government would become a public document. The mode to prove such a document has been prescribed by Sections 77 and 78 of this Act. According to Section 77 certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Section 78 of the Evidence Act provides for the proof of other official documents which runs as follows :-
78. Proof of other Official documents.- The following official documents may be proved as follows :-
(1) Acts, orders or notification of the Central Government in any of its departments, or of the Crown Representative or of any State Government, or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any documents purporting to be printed by order of any such Government of the case may be, of the Crown Representative.
xxx xxx xxx
10. In the present case as per the counter-affidavit the G.S.R. is sought to be proved. This order will be clearly covered under Section 78(1) of the Evidence Act. Now the question arises how such order or notification can be proved. The mode prescribed in Section 78 is that it should be by the record of the department certified by head of those departments. In the present case no such Gazette notification authorising the District Supply Officer to search and seize has been brought on the record. Not even a typed copy of this notification has been reproduced in the counter-affidavit. Under such a circumstance can it be said to be sufficient compliance with the provision of Section 78 of the Evidence Act? The answer is obvious that it cannot be said to be covered by this section and, therefore, it cannot be said to be proved according to the provision of law. There is no denying the fact that in neither of these two orders under Clause 12 of the State Order or Clause 7 of the Central Government Order the District Supply Officer's name find mention. If really the State or Central Government has sought to include the District Supply Officer within the provision of either of these Clause a proper notification as required by Section 78 was necessary. This has not been done. No such notification has been brought on the record. In absence of such notification it cannot be said that the District Supply Officer was properly authorised under either these clauses to search and seize any business premises. The law on this point appears to be well settled. In the case of Janu Khan v. The State AIR 1960 Patna 213 : 1960 Cri LJ 634 it has been held that a copy of the Gazette notification has to be certified by the head of the Department which issued the notification. It can also be taken in the evidence if the Official Gazette in which the notification is purported to have been printed by the order of the Government has been produced for inspection. This decision of this Court has been quoted with approval in the case of Gopal Sao v. The State of Bihar 1968 BLJR 308. In the case of Sarjug Sah v. The State of Bihar 1973 BBCJ 560-IV, Narain, J. has observed as follows:-
A notification issued by a State Government or a department of the Government in a public document and a certified copy of it may be taken in evidence to prove the contents of that document, but before, it can be done; the method of proof as contemplated by Section 78 of the Evidence Act must be complied with. Disregard of such a method of proof makes the document inadmissible in evidence. True copies of gazette notification not certified by the head of Department can not be looked into.
In the case of Santokhi Rana v. The State 1977 PLJR 141 it has been held that a copy not certified by the head of the department is not a certified copy within the meaning of Section 78 and is not admissible. From these authoritative pronouncements it becomes clear that the attempt of the learned A.P.P. to bring on record the Gazette notification authorising the District Supply Officer to search and seize has failed the same having been not proved in terms of Section 78 of the Evidence Act.
11. From this it would appear that the District Supply Officer was a person not authorised to search and seize the business premises of the petitioner and, therefore, on this ground alone the present application is fit to be allowed.
12. In this connection a reference may be made to the case of Kanhaiya Sah v. The State of Bihar 1991 BBCJ 638. In this case also the search and seizure was made by an Officer not authorised under Section 30 of the Bihar Food Grains Dealers Licensing Order and the Cognizance was taken on the basis of this search and seizure; by the Special Judge. It was held that the same cannot be sustained. In this decision a reference has also been made to the case of Ram Chandra Pansari v. The State of Bihar 1988 PLJR 623 : 1989 Cri LJ (NOC) 88 Patna. This case was also with respect to the contravention of the Clause 12 of the Bihar Motor Spirit and High Diesel Licensing Order, 1966. In the said case also the search and seizure was made by an Officer not authorised under Clause 12 of that Order and on that basis it was held that the search and seizure were illegal and on the basis of such search and seizure no proceeding can be initiated under Section 7 of the E.G. Act. Accordingly, the trial was quashed. From the aforesaid it would appear that on this ground also the prosecution case cannot be sustained.
13. On behalf of the petitioner my attention has also been drawn to Clause 6 of the Bihar Essential Articles (Display or Prices and Stocks) Order, 1977 (in short 'the Display Order'). The proviso to its Clause 6 also shows that no prosecution shall lie against a person for the contravention of any provisions of this Order unless the same has been sanctioned by the District Magistrate or Special Officer Incharge Rationing or the Additional District Magistrate Supply or the S.D.M. within the limbs of their respective jurisdiction. It has been contended that since as per the prosecution report the Display of Stock and Price as also Display of the articles etc. have not been prepared an offence under supply Order is also committed. However, since there is no sanction under Clause 6 of this order no prosecution for the same can be started or sustained. It is needless to say that the sanction as contemplated under Clause 6 has to be made before the institution of the case and start of the investigation. This view finds support from the case of Mithila Cycle Centre v. The State of Bihar 1990 (2) PLJR 184. From this it would appear that Clause 6 does not empower initiation or continuation of the prosecution at any stage without necessary sanction. Since no such sanction has been brought on the record it is clear that the prosecution case is bad on this account also.
14. It has been lastly contended that the prosecution of the petitioner is hit by Section 468 of the Code since the offence under Section 3(2)(b)(i) of the Act which is alleged to have been committed is punishable with the imprisonment of one year only and as such the cognizance should have been taken within a period of one year from the date of commission of the offence. In the present case it has been pointed out that the alleged offence had taken place in the month of February, 1991 whereas the cognizance was taken on 23-9-1992 which is much after the expiry of one-year. On this ground also the prosecution of the petitioner appears to be bad.
15. From the detailed discussions made above it becomes perfectly clear to me that this application is fit to be allowed and the impugned proceeding against the petitioner has got to be quashed.
16. In the result, Complaint Case No. 92 pending in the Court of Special Judge, E.C. Act is hereby quashed.