Gujarat High Court
State vs Shri on 15 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCR.A/221/2006 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 221 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
SHRI
VRUJLAL RAMJIBHAI CHANDARANA, - Respondent(s)
=========================================================
Appearance
:
MR
DESAI, APP for Applicant(s) : 1,
MR TUSHAR MEHTA for Respondent(s)
: 1,
MR DEVANG VYAS for Respondent(s) : 1,
MR HARDIK B KALMEKH
for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 15/07/2011
ORAL
JUDGMENT
The present petition is directed against the judgement and award dated 6.10.2005 passed by the learned Sessions Judge in Criminal Appeal No.2/2003 whereby the appeal has been allowed and the order of the Collector for forfeiture of the petrol/diesel is set aside.
Heard Mr.Desai, learned APP for the State and Mr.Devang Vyas, learned Counsel for the respondent.
The only aspect aspect deserves to be considered in the present matter is whether the proceedings of forfeiture would be maintained, if the seizure on the basis of which the proceedings of forfeiture were initiated, itself was by a person not duly authorized ?
It is an admitted position that the police officer of the rank of P.I., has undertaken the search and seizure of the petrol pump and has taken the action as per the provisions of The Motor Spirit and High Spirit Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998, Clause-4 of the said Control Order, which reads as under:-
"4.
Power of Search and Seizure.-
(A) Any Gazetted Officer of the Central or State Government or any Police Officer not below the rank of Deputy Superintendent of Police (DSP) duly authorised, by general or special order by the Central Government or State Government as the case may be or any Officer of the concerned Oil Company not below the rank of Sales Officer may, with a view to securing compliance with the provisions of this Order, or for the purpose of satisfying himself that this order or any order made thereunder has been complied with-
(i) enter and search any place or premises being made use of or suspected to be made use by a dealer, transporter, consumer or any other person who is an employee or agent of such dealer/transporter/consumer or any other person, with respect to which there is reason to believe that the provisions of this order have been/are being or are about to be contravened.
(ii) stop and search any person or vehicle or receptacle used or intended to be used for the movement of the product.
(iii) inspect any book of accounts or other documents or any stock of the product used or suspected to be used in the business of the dealer, transporter, consumer or any other person suspected to be an employee or agent of the dealer, transporter or consumer.
(iv) take samples of the product and/or seize any of the stocks of the product which the officer has reason to believe has been or is being or is about to be used in contravention of this order and hereafter take or authorise the taking of all measures necessary for securing the production of stocks/items so seized before the Collector having jurisdiction under the provision of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production.
(B) While exercising the power of seizure provided under Clause A(iv) the authorized officer shall record in writing the reasons for doing so, a copy of which shall be given to the dealer, transporter, consumer or any other concerned person.
(C) The provisions of Sec. 100 of the Code of Criminal Procedure, 1973(2 of 1974), relating to search and seizure shall, as far as may be, apply to searches and seizures under this Order."
The aforesaid makes it clear that the police officer has to be not below the rank of Deputy Superintendent of Police (DSP) duly authorised by general or specific order of the Central Government or the State Government.
Apart from the aspects of due authorization, it is an admitted position that the search and seizure has not been made by the police officer of the rank of Deputy Superintendent of Police, but is of the rank below the Deputy Superintendent of Police i.e. P.I. The learned Sessions Judge has found that such being the position, the whole proceedings of confiscation would be vitiated. The aforesaid aspect is coupled with the requirement to take sample namely; six samples were required to be taken as against the same, five samples were taken, two samples met with the requisite requirement, but the sample, which was examined by FSL, Junagadh did not meet with the requirement.
In my view, when the basis of the proceedings namely; search and seizure itself was not by the person competent for such purpose, the subsequent proceedings for forfeiture would get vitiated. The learned Sessions judge has committed mistake in reproduction of the Control Order of 1998, but if the correct provision as reproduced herein above is considered, the search and seizure is by the officer below the rank of Dy. Superintendent of Police.
Under these circumstances, it appears that the ultimate conclusion recorded for setting aside the order by the Collector for forfeiture of the petrol/diesel does not deserve to be interfered with.
In the result, the petition is meritless and, therefore, dismissed.
(Jayant Patel, J.) vinod Top