Punjab-Haryana High Court
Gobind Pal vs State Of Punjab And Another on 30 July, 2008
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.52397-M of 2002
Date of decision: 30th July, 2008
Gobind Pal
... Petitioner
Versus
State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Aman Bansal, Advocate for
Mr. Akshay Bhan, Advocate for the petitioner.
Mr. Mehardeep Singh, Assistant Advocate General Punjab for
the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present petition has been filed under Section 482 Cr.P.C. seeking quashing of case FIR No. 125 dated 07.08.2002 registered at Police Station Adampur under Section 7 of the Essential Commodities Act. The FIR has been annexed with this petition as Annexure P-1.
A perusal of FIR shows that Sub-inspector Sucha Singh, along with his companion officials, was investigating excise cases in village Khurdpur, when Gobind Pal son of Roshan Lal suffered a disclosure statement. In pursuance of the disclosure statement, from the residential house of Gobind Pal - petitioner, ten empty gas cylinders (seven of Indian Gas Agency and three of Bharat Gas Agency) and a drum of 100 liters of kerosene oil were recovered. It is stated that by keeping the kerosene oil drum of 100 liters and gas cylinders, petitioner has committed violation of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, CRM No. 52397-M of 2002 2 1993 and Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000.
Mr. Aman Bansal appearing for the petitioner has made three submissions before me:
(a) Firstly, that petitioner is a consumer. It has nowhere come in evidence that petitioner was a retailer or a dealer. Therefore, the essential ingredient of sale is lacking and therefore, petitioner cannot be prosecuted;
(b) Second submission made by counsel for the petitioner is that kerosene oil is permitted to be sold in a parallel market and there is no evidence that the kerosene oil, which was found stored by the petitioner, was for the sale in public distribution system. It has been further stated that storage of 100 liters of kerosene oil by a consumer cannot be presumed to be available for sale. It has been further stated that preparation of the offence and commission of offence are two entirely different things. Until sale is effected, petitioner cannot be held liable; and
(c) Thirdly, it has been submitted that it has been held by this Court in Kala Devi alias Kala v. State of Haryana, 1995 (2) RCR 427 and Suresh Kumar v. State of Haryana, 1996 (2) RCR 365 that only Food Inspector can conduct search and seizure and police is not authorized to carry on the search and therefore, any proceedings initiated by the police shall stand vitiated.CRM No. 52397-M of 2002 3
The first two arguments raised by the counsel for the petitioner need not be entertained as the third argument of the petitioner is securely covered by two judgments of this Court. It was held in Kala Devi's case (supra) as under:
"From Section 11, it is evident that SI/ SHO of any Police Station is not authorized to take search or to seize gas cylinders for contravening any of the provisions of this order."
Mr. Mehardeep Singh appearing for the State has relied upon Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978 (hereinafter called the '1978 Order'), wherein, it has been stated in clause 15, the Director, the District Magistrate, the Assistant Director (Food and Supplies), the Inspector or any other Sub-inspector or Police is competent to enter any premises and seize the material.
Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 had an overriding effect. Clause 10 of the Order reads as under:
"10. Overriding effect of the Order - The provisions of this Order shall have the overriding effect notwithstanding anything to the contrary contained in any order made by a State Government or a Union Territory or by an Officer of such State Government or Union Territory before the commencement of this Order, except as regards anything done or omitted to be thereunder before such commencement."
Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 was issued to have a uniform procedure regarding the sale of kerosene oil throughout India. It was for the first time that parallel market CRM No. 52397-M of 2002 4 was introduced and right of the private persons to carry on the sale of kerosene oil was recognized.
Clause 9 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 reads as under:
"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:-
(i) stop and search any vessel of vehicle or any other conveyance which the Officer has reason to believe, has been, or is being, or is about to be used in contravention of this Order.
(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, alongwith 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 or seized before the Collector having jurisdiction under the provisions of Essential Commodities Act, 1955 (10 CRM No. 52397-M of 2002 5 of 1955), for their safe custody pending such procedures (draw any test samples of the products with the aid of test kit to determine blending of marker in kerosene)."
A similar Clause 13 has been incorporated in the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. Same reads as under:
"13. Power of entry, search and seizure.- (1) Any Officer of the Central or the State Government and below the rank of Inspector duly authorized by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of a Government Oil Company not below the rank of Sales Officer, authorized by the Central Government, may, with a view to securing due compliance of this Order or any other order made thereunder:-
(a) stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product.
(b) enter and search any place.
(c) Seize stocks of liquefied petroleum gas alongwith container and/or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made.
(2) The Sales Officer of a Government Oil Company shall be authorized to secure compliance of this Order by the distributors appointed under the public distribution system and or by the consumer registered by them."
It has been held in Kala Devi's case (supra) as under:
"4. Vijay Kumar's case (supra) was decided on 2.1.1991 pertaining to FIR registered under Sections 420/465/468/471 CRM No. 52397-M of 2002 6 IPC, while the Order has come into force on 3.8.1993 and Section 11 of the Order authorizes Collector having jurisdiction under the provisions of Act for taking action against all concerned if they violate the provisions of this order. From Section 11, it is evident that SI/ SHO of any Police Station is not authorized to take search or to seize gas cylinders for contravening any of the provisions of this order."
A similar provision as in Clause 9 of Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993, and Clause 13 of Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 was also mentioned in Liquified Petroleum Gas (Regulation, Supply and Distribution) Order, 1993, which had been interpreted in Suresh Kumar's case (supra) and it was held as under:
"4. To appreciate the contentions of the learned counsel for the petitioners, the provisions of Clause 7 of the order need scrutiny. Under Clause 7 of the order which governs the subject, a person who can exercise the power of entry, search and seizure has to be an officer of the Department of Food and Civil Supplies of the Government and is not to be below the rank of an Inspector. Such Inspector has to be authorized by the Government and notified by the Central Government or any officer not below the rank of a Sales Officer of an Oil Company or a person authorized by the Central Government or a State Government and notified by the Central Government and in conformity with sub-clause 1 of the Clause 7 of the order. The petitioner had made specific averments in the petition. Reply has been given in Court. In reply, it has not been disputed that Sub Inspector of Police is neither an Inspector nor a person duly authorized and notified by the State and Central Government in furtherance to the statutory mandate of Clause 7 of the Order.CRM No. 52397-M of 2002 7
5. Learned counsel for the petitioner has relied upon the judgments of this Court in case of Harpal Singh and others v. State of Punjab reported as 1991 (2) Chandigarh Law Reporter 71, Raj Kumar v. State of Punjab reported as 1994(2) Chandigarh Law Reporter 24, Ashok Kumar v. State of Haryana reported as 1991(2) Recent Criminal Reports 140 and on a very recent judgment of this Court in the case of Kala Devi alias Kala v. State of Haryana reported as 1995(2) Recent Criminal Reports 427. Thus, settled position of law is that a police officer of the rank of Sub Inspector is not authorized and notified person under the Order and consequently could not have exercised the power of entry, search and seizure and certainly under Clause 7 of the Order the powers of entry, seizure, search and investigation of the case do not vest in Sub Inspector of police who was not authorized by the State Government and notified by the Central Government. No fruitful purpose would be served in directing the petitioner to stand the complete trial. This is the matter which goes to the root of the prosecution and as a fact it has not been disputed in the reply and even during the course of arguments by the learned counsel for the State. I find it a fit case where the charge should be quashed. Learned counsel for the State has not pressed his submission that the police officer could conduct investigation of this case under the provisions of Code of Criminal Procedure which is general law governing the investigation into criminal offences. He has fairly not pressed this contention in view of the judgment of the Supreme Court in the case of Nilratan Sircar v. Lakshmi Narayan Ram Niwas reported as 1965 (1) Criminal Law Journal 100."
Since under both the Orders, i.e. Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 and Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, it has been held that CRM No. 52397-M of 2002 8 Sub-inspector of Police is not authorized, I have no other option except to accept the present petition. Accordingly, proceedings initiated against the petitioner in impugned FIR are quashed.
[KANWALJIT SINGH AHLUWALIA] JUDGE July 30, 2008 rps