Punjab-Haryana High Court
Vijay Kumar vs State Of Punjab on 12 December, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-32657 of 2008 (O&M) [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. No. M-32657 of 2008 (O&M)
Date of Decision: December 12, 2012
Vijay Kumar ............................................ Petitioner
Versus
State of Punjab ................................... Respondent
Coram: Hon'ble Ms. Justice Ritu Bahri
1.To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr. P.S.Ahluwalia, Advocate
for the petitioner.
Mr. P.S.Bajwa, Addl. A.G. Punjab.
...
RITU BAHRI, J. (Oral)
This petition under Section 482 Cr.P.C. is for quashing of FIR No. 231 dated 26.5.2007 registered at Police Station Sadar Patiala, under Section 420 IPC and Section 7 of the Essential Commodities Act.
The FIR was registered on a secret information by SI Jaipal along with ASI Thorra Ram that Vijay Kumar @ Tina son of Om Parkash Dalda was having a Government Depot of kerosene oil and instead of supplying the oil on ration card, he was selling the same to Hotels and shops of Halwais Crl. Misc. No. M-32657 of 2008 (O&M) [ 2 ] at higher rates in black. If a Nakabandi is laid on Pasiana bridge then the aforesaid persons along with the vehicle and kerosene oil will be apprehended. With these allegations it was alleged that the accused had committed an offence under Section 7 of the Essential Commodities Act.
Quashing of the FIR is being sought on the ground that there was no offence that the petitioner had sold kerosene oil in black It was only apprehension that he was taking the kerosene oil in the vehicle for sale to Hotels and shops of Halwais. There was no evidence collected that he had made any sale for the said purpose. Reference was made to mandatory provisions of Rule 9 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 and these provisions had not been complied with while searching the vehicle carrying the kerosene oil. As per the report filed under Section 173 Cr.P.C. (Annexure P1) the case of the prosecution was that there was recovery of kerosene oil which in itself would not sufficient to sustain conviction under Section 7 of the Essential Commodities Act.
Mr. P.S.Ahluwalia, counsel for the petitioner, has referred to the judgment passed by the Supreme Court in State of Andhra Pradesh v. Viswanadula Chetti Babu 2011 (1) R.C.R. (Criminal) 222 to contend that for an investigation of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 it is only the Deputy Crl. Misc. No. M-32657 of 2008 (O&M) [ 3 ] Superintendent of Police who can investigate the offence. Any investigation carried out by the officer below the rank of Deputy Superintendent of Police would vitiate the entire investigation.
On notice, reply dated 6.2.2009 has been filed by the Deputy Superintendent of Police, Rural, Patiala.
Mr. Bajwa, counsel for the respondent, has argued that after investigation challan of the case has been presented in the Court on 16.2.2008 and after framing of charges the case is fixed for prosecution evidence. The Naka was laid and Ram Pal son of Surjit Ram and Des Raj son of Channi Ram along with 11 Drums of Kerosene Oil were arrested on the spot on 26.5.2007. As per the information given by them, the Kerosene Oil belong to Vijay Kumar who was the Depot holder. The petitioner had a depot at Guru Nagak Nagar, Patiala. The vehicle was apprehended while going to Bhawanigarh which was not a route to Patiala and the kerosene oil was to be taken to the depot held by the petitioner. The recovery has been effected on route and as per Clause 9 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 the officer of the Department of Food & Supplies was competent to effect search of any place/building. The Rule is not applicable as the recovery has been effected from the road. The relevant judgments on the point are applicable when the search is Crl. Misc. No. M-32657 of 2008 (O&M) [ 4 ] effected from a Godown or shop or at fixed place.
Heard counsel for the parties.
As is evident from the record the present case was registered by the police on the ground that 11 drums of kerosene oil meant for illegal sale were recovered from the possession/truck of the accused. The first objection is that the recovery was made from the road and hence Rule 9 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993, is not applicable. Clause 9 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 is reproduced below:-
"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:
Crl. Misc. No. M-32657 of 2008 (O&M) [ 5 ]
(i) xxx xxx xxx.
(ii)enter or search any place with such aid or assistance, as may be 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."
As per clause 9 the stop and search of a vehicle in context of kerosene oil can be conducted by an officer of the Department of Food & Supplies as per Rule 9(a)(i).
Crl. Misc. No. M-32657 of 2008 (O&M) [ 6 ] Admittedly, in the present case the search on a secret information was conducted by SI Jaipal along with ASI Thorra Ram. As per the clear language of the Rule, he was not competent to conduct the search and seizure. The power under Rule 9 has been specifically granted to the Food & Supplies officer not below the rank of Inspector. The proceedings thus stand vitiated. The aspect has been dealt with in a judgment rendered by this Court dated 11.11.2010 passed in Crl. Misc. No.M-22032 of 2010 titled as Atul Garg son of Janak Raj v. State of Punjab.
The Supreme Court in State of Andhra Pradesh v. Viswanadula Chetti Babu 2011(1) R.C.R. (Crimiinal) 222 has held that when a special legislation is enacted and the power is given to an officer to conduct the investigation and in case of any departure from that rule the investigation carried out by an officer of a lower rank would be vitiated. In paragraph 2 of the judgment in Viswanadula Chetti Babu's case (supra) it is observed as under:-
2. A bare of the Rule would reveal that the State Government/the Director General of Police/ Superintendent of Police after taking into account the experience etc. of a Deputy Superintendent of Police shall appoint him as the Investigating Officer in cases under the above Act. Sub-rule (3) further provides that the Home Secretary and the Crl. Misc. No. M-32657 of 2008 (O&M) [ 7 ] Social Welfare Secretary to the Government and other officers in charge shall review the working of the Deputy Superintendent of Police and the investigations done by him at the end of every quarter. It is therefore apparent that authority to investigate has to be conferred on a specified officer not below the rank of Deputy Superintendent of Police."
In the facts of the present case, the vehicle was seized by an officer of the rank who is not empowered to stop and search the vehicle. The Essential Commodities Act being a special act will over-write the Code of Criminal Procedure. The Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 has been issued while exercising powers under Section 3 of the Essential Commodities Act, 1955.
In light of the above discussion, the present petition is allowed. FIR No. 231 dated 26.5.2007 registered at Police Station Sadar Patiala, under Section 420 IPC and Section 7 of the Essential Commodities Act is quashed with all consequential proceedings arising therefrom qua petitioner and the petitioner is discharged from the criminal proceedings.
12.12.2012 ( RITU BAHRI ) Rupi JUDGE