Patna High Court - Orders
Om Prakash Khemka vs The State Of Bihar on 19 March, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR.MISC. NO.8215 OF 2008
OM PRAKASH KHEMKA, SON OF LATE OMKARMAL KHEMKA, RESIDENT OF
NEW AREA, AURANGABAD, POLICE STATION AND DISTRICT AURANGABAD
VERSUS
THE STATE OF BIHAR
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FOR THE PETITIONER :- MR. N. K. AGRAWAL, SENIOR ADVOCATE
MR. D. N. TIWARY, ADVOCATE
FOR THE S T A T E :- MR. JHARKHANDI UPADHYAY, A.P.P.
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8 19/03/2010The petitioner is the tanker owner which was seized by the Block Development Officer, Obra for which Obra Police Station Case No. 06 of 2007 was instituted.
The only point that has been raised for quashing the First Information Report is that the Block Development Officer does not have the powers under the provisions of Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1966 (hereinafter referred to as "the Order of 1966") as per clause 12 of the Order of 1966. The Block Development Officer is also not authorized under Clause 7 of the Motor spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal-Practices) Order, 2005 (hereinafter referred to as "the Order of 2005").
The facts are that on 09th January, 2007 at about 5 PM, two tankers loaded with 3500 lts. of diesel and 1500 lts. of petrol were found on the National Highway No. 30 and were seized by the Block 2 Development Officer. Subsequently, the Supply Officer, Obra on 22nd January, 2007 instituted a First Information Report alleging that nobody has come forward to produce documents with respect to the alleged petroleum products. It is specifically alleged that tanker bearing registration no. BR-26G/6001 was loaded with 2500 lts. of petrol whereas tanker bearing registration no. BR-26A/8001 was loaded with 3500 lts. of kerosene oil and as such an offence was made out under Section 7 of the Essential Commodities Act.
Notices were issued in this case and on instructions, notification was produced by the State Counsel which has been issued in the month of January, 2008 giving the powers of search and seizure to the Block Development Officer whereas the seizure was made on 10.01.2007 i.e. before the issuance of the notification.
Clause 12 of the Order of 1966 provides as follows:-
"12. Powers of entry, inspection, search, seizure etc.- (1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar Deputy State Transport Commissioner, Bihar, Special Officer, Incharge Tyre Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, 3 Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Subdivisional Magistrate, Magistrate, Superintendent of Police, Deputy Superintendent of Police, other Police Officer not below the rank of Deputy Superintendent of Police or any other person authorized in this behalf by the State Government, viz., with such assistance as he may think fit-
(a) require the owner, occupier or any other person Incharge of any place, premises, vehicle in which he has reason to believe that any contravention of the provisions of this Order or of conditions of any licence issued thereunder has been is being or is about to be committed to produce any books of accounts or other documents, showing transaction relating to such contraventions;
(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contraventioin of the provisions of this Order or of the conditions of any licence issued thereunder has been, is being or is about to be committed;
(c) take or cause to be taken, extract from or copies of any documents, showing transaction relating to such contraventions which are produced before him; 4
(d) search, seizure and remove stocks of motor spirit or high speed diesel oil with containers and the animals, vehicles or other conveyances used in carrying the said motor spirit or high speed diesel oil in contravention of the provisions of this Order, or of the conditions of the licence issued thereunder and thereafter, take or authorize the taking of all measures necessary for securing the production of stocks of vanaspati and animals, vehicles or vessels or other conveyances so seized before a magistrate and for their safe custody pending such production.
(2) The provisions of section [102 and 103 of the Code of Criminal Procedure , 1898 (Act V of 1898) relating to search and seizure shall, so far as may be, apply to searches and seizure made and to the articles or things seized under this clause."
It is apparent that apart from the authorities mentioned in the said clause, the power has been given to the State Government to authorize any person on its behalf for the purposes of entry, inspection, search and seizure. Similarly, clause 7 of the Order of 2005 provides that any Gazetted Officer of the Central Government or a State Government or any Police Officer not below the rank of Deputy Superintendent of Police duly authorized by general or special order of the Central 5 Government or a State Government, as the case may be, for the purposes of this Act enter and search any place or premises of a dealer, transport or consumer or any other person who is employee or agent of such dealer, transporter or consumer. The clause also provides that the Officer aforesaid can stop and search any vehicle and take sample of the product and seize the stocks of the product in furtherance of fulfilling the provisions of this Act.
From the facts stated aforesaid, it is apparent that the State Government has not authorized the Block Development Officer or the Sub Divisional Officer for that matter to make any search or seizure of any business premises or vehicle, as the case may be.
Learned Counsel for the petitioner has also relied on the decision of this Court in the case of Radha Kant Mishra vs. The State of Bihar & Another, reported in 2004 (2) PLJR 448 wherein the facts are that the Sub Divisional Welfare Officer, Bennipatti went to Simri village and in course of enquiry went to the Public Distribution System shop of the petitioner and instituted First Information Report and also searched the premises. The Court has held that under the Bihar Trade Articles (Licences Unification) Order, 1984 issued under the Essential Commodities Act, Clause 30 of the Unification 6 Order, specifies and confers the powers for entry, search and seizure only upon the Officer who has been specifically specified by the State Government.
I therefore find that the Block Development Officer, Obra had no power of search and seizure. Besides the aforesaid legal position, it appears that the sample of the alleged seized kerosene oil and petrol was sent to the BPCL. The report which is annexed as Annexure-2 indicates that there is a finding that the tanker were loaded with petrol and diesel and not with kerosene oil as alleged by the Block Development Officer.
In any event, the continuance of the proceeding is unwarranted in view of the fact that the Block Development Officer was not empowered by the State Government to search and seize the tankers in question. The liability of the petitioner who is merely the owner of the tanker and not responsible for the contents thereof is even less and as such this Court quashes the First Information Report of Obra Police Station Case No. 06 of 2007 dated 23.01.2007 pending before the Chief Judicial Magistrate, Aurangabad as far as sit concerns the above named petitioner.
In the result, this application is allowed.
Anand ( Sheema Ali Khan, J.)