Madras High Court
V.Vishwanathan vs State Of Tamil Nadu on 4 May, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.05.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.13343 of 2023
V.Vishwanathan ...Petitioner
Vs
1.State of Tamil Nadu,
Rep by its Inspector of Police,
Civil Supply CID, Chennai -P.S.
2.The Deputy Commissioner,
Civil Supply & Consumer
Production Department,
(Town) North Office,
Ezhilagam, Chepauk,
Chennai 600 005. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the first respondent to
release the Tanker Truck Lorry bearing Registration No.TN 02 R 425.
For Petitioner : Mr.T.S.Kani
For Respondents : Mr.S.Santhosh,
Government Advocate.
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ORDER
The prayer in the Writ Petition is for issuance of Writ of Mandamus,
directing the first respondent to release the Tanker Truck Lorry bearing
Registration No. TN-02-R.4251.
2. The learned counsel for the petitioner submitted that the mode of
seizure itself is not in accordance with the provisions of Essential
Commodities Act, 1955 as well as the Control Orders, namely, Motor Sprit
and High Speed Diesel (Regulation of Supply & Distribution & Prevention
of Malpractices) Order, 1998. Under Section 3(j) of the Essential
Commodities Act, the seizure is required to be made by a person authorised.
Clause 4 of the Control Order reads as follows:
“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
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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.
(ii) inspect any book of account 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 employee or agent of the
dealer, transporter or consumer.
(iv) take samples of the product and / or seize of the
stocks of the product which the officer has reason to believe
has been or is being 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.
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(B) While exercising the power of seizure provided
under clause A (iv) the authorised 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 section 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.”
3. Since the Inspector of Police had seized the petitioner's Tanker
without any authority, in view of Clause 4 of the Control Order, the seizure
itself is illegal and consequentially the FIR requires to be quashed.
4. The learned Government Advocate, on the other hand, would
submit that under Section 102 of Criminal Procedure Code, the Inspector
of Police is authorised to seize any property and in view of the same, the
seizure made, as reflected in the FIR, does not suffer from any irregularity.
The learned Government Advocate submitted that under Section 5 of
Essential Commodities Act, the Inspector of Police can be delegated the
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powers in relation to any matter under the Essential Commodities Act and
even assuming that the Deputy Superintendent of Police alone is authorised
to seize, such powers can be delegated to the Inspector of Police.
5. The Essential Commodities Act is a self contained Act, which
provides for the Control of the production, supply, distribution etc., of
certain Commodities. Section 3 (j) of the Essential Commodities Act
empowers a person authorised, to seize any vehicle which is found to be
carrying articles in violation of any of the provisions of the Act. The term
referred to under Section 3 (j) is seizure by a “person authorised”.
6. In exercise of the powers conferred by Section 3 of the Essential
Commodities Act, the Ministry of Petroleum and Natural Gas of the Central
Government framed the Motor Sprit and High Speed Diesel (Regulation of
Supply & Distribution & Prevention of Malpractices) Order, 1998. As seen
from the extract of the provisions of Clause 4 of the order, the power of
search and seizure has been authorised to a Police Officer not below the
rank of a Deputy Superintendent of Police, duly authorised by a general or
special order of the Central Government or State Government, as the case
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may be. When the Control Orders, which have been passed under the
provisions of Essential Commodities Act, clearly stipulate the power of
search and seizure of a vehicle, resorting to the general provisions under
Section 102 of the Criminal Procedure Code may not be proper. Section 3 of
the Essential Commodities Act, stipulates the procedure, as well as the
authority of a police officer to search or seize a vehicle. While that being so,
the stand of the respondents that the such power to search or seize is being
derived from Section 102 of the Criminal Procedure Code is misplaced.
7. Though the learned Additional Public Prosecutor stated that under
Section 5 of Essential Commodities Act the powers can be delegated to any
other officer below the rank of Deputy Superintendent of Police, such order
notifying delegation of power has not been produced before this Court. As a
matter of fact, when the case was adjourned for the last two hearings only
for the purpose of verifying as to whether such delegation of powers was
notified, the only reply from the respondents would be that in all cases, the
Inspector of Police or the Officer in-charge of the police station are in
exercising their powers under Section 102 of Criminal Procedure Code. In
my view, such a reliance on the provisions of the Criminal Procedure Code,
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in cases where the Special Act itself provides for specific powers and
procedures, is illegal.
8. At this juncture, the learned Additional Public Prosecutor
submitted that a confiscation order also came to be passed on 17.09.2019
and in view of the appeal remedy available under Section 6C of the
Essential Commodities Act, the remedy available to the petitioner would be
to challenge the confiscation order. In the present case, the search and
seizure, from the very inception, has been done by an authority who is not
authorised to seize the vehicle and, therefore, all consequential actions taken
based on such illegal search and seizure would also become unlawful and
thereby the confiscation order cannot be sustained.
9. The learned Government Advocate also made an attempt to
impress this Court by referring to Section 6E of the Essential Commodities
Act which bars jurisdiction in certain cases including seeking for return of
the vehicles seized pending confiscation proceedings.
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10. As stated earlier, when the Essential Commodities Act, which is a
Special Act, provides measures for control of production, supply and
distribution of certain commodities, the respondents ought not to have
exercised their powers under the Criminal Procedure Code. When this Court
has already held that the procedure adopted for search and seizure by an
unauthorised person by exercising the power under Section 102 of Criminal
Procedure Code is illegal, the bar of jurisdiction under Section 6E of the
Essential Commodities Act does not restrain this Court from exercising its
powers under Article 226 of the Constitution of India, when the Court has
discovered the apparent illegality in the procedure adopted.
11. For all the foregoing reasons, the Writ Petition stands allowed.
The respondents herein are directed to release the petitioner's Tanker Truck
Lorry bearing Registration No. TN-02-R.4251 forthwith, in any event,
within a period of one week from the date of receipt of a copy of this order.
No costs.
04.05.2023
Index:yes/no
Internet:yes/no
kmm
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To
1.The Inspector of Police,
Civil Supply CID, Chennai -P.S.
2.The Deputy Commissioner,
Civil Supply & Consumer
Production Department,
(Town) North Office,
Ezhilagam, Chepauk,
Chennai 600 005.
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G.K.ILANTHIRAIYAN, J.
kmm W.P.No.13343 of 2023 04.05.2023 10/10 https://www.mhc.tn.gov.in/judis