Harpal Singh and ors. vs State of Punjab

J.S. Sekhon, J.

The sole controversy involved in this petition filed under Section 482 of the Code of Criminal Procedure 1973, for quashing the first information report No. 400 dated 891989 for offence under Section 7 of the Essential Commodities Act, registered at Police Station Sadar Amritsar is whether under clause 15 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing JUDGMENT 1978 (for short the `JUDGMENT) issued under Section 3 of the Essential Commodities Act, 1955, an Assistant SubInspector of Police was competent to enter upon or search the business, premises of the dealer or only a police officer not below the rank of Sub Inspector is competent to do so.

The brief resume of facts relevant for the disposal of this petition figuring in the impugned first information report, copy Annexure P1, is that Assistant Sub Inspector Narender Singh of Police Station Sadar Amritsar on the basis of secret information organised a raiding party on 891999 for raiding the premises of the accused petitioners as the secret information revealed that these accusedpetitioners had purchased some drums of kerosene oil from the truck tanker bearing registration No. 13051 PAT without any permit, licence or authority in order to sell the same in black market.

In the return filed by Shri Baljinder Singh, SHO of Police Station Sadar Amritsar, it is admitted that Assistant Sub Inspector Narender Singh had conducted the raid and found 9200 litres of kerosene oil in the possession of the accusedpetitioners. It is further averred in the return that the provisions of Section 156 of the Code of Criminal Procedure provide that no investigation conducted by police officer be called in question on the ground of incompetence of such officer to investigate such offence.

I have heard the learned counsel for the parties besides perusing the record.

Clause 15 of the JUDGMENT reads as under :

"15. Power of entry, search and seizure, etc.

(1) The Director, the District Magistrate, the Assistant Director, Food and Supplies, the Inspector or any other officer not below the tank of Sub Inspector of Police may with a view to securing compliance with the provisions of this JUDGMENT or to satisfying himself that the provisions of this JUDGMENT have been complied with and with such assistance, if any, as he thinks fit (a) enter upon and inspect any business premises of a dealer or any premises on which he has reason to believe that Light Diesel Oil or Kerosene or both have been, are being or are likely to be kept, stored, distributed, disposed of or to and from which light diesel oil or kerosene have been or are being or are likely to be removed or transported;

(b) stop and inspect any vehicle or animal on which light diesel oil or both are being carried for sale, supply or storage or any other purposes ;

(c) seize light diesel oil or kerosene both found in possession of such dealer or in any vehicle or on any animal in respect of which he has reason to believe that a contravention of this JUDGMENT has been, is being or is about to be committed; and

(d) seize any record pertaining to light diesel oil or kerosene or both in respect of which he has reason to believe that contravention of this JUDGMENT has been or is being or is about to be committed.

(2) Every person (including his agent or servant) incharge of the vehicle or animal or premises which is searched or is sought to be searched under the provisions of subclause (1) shall allow the authority making the demand an access to such vehicle, animal or premises and shall also answer truthfully and to the best of his knowledge or belief all questions put to him.

(3) The provisions of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to search and seizure shall, so far as may be apply to searches and seizures under this clause."

A bare glance through the above clause leaves no doubt that special provisions have been incorporated in this clause by empowering the Director, the District Magistrate, the Assistant Director, Food and Supplies, the Inspector or any other Officer not below the rank of SubInspector of Police to enter upon or search any premises of the dealer or any premises on which such Officer has reason to believe that light diesel oil or kerosene or both have been, or being or are likely to be kept stored, distributed or disposed of in contravention with the provisions of this JUDGMENTAdmittedly, the Essential Commodities Act as well as the above referred JUDGMENT issued by the State Government under Section 3 of the said Act are special laws whereas the Code of Criminal Procedure is general law. The law is well settled on the point that the provisions of the Special Act or Law will prevail upon the provisions of the general law. Moreover, it appears that the special protection has been given to the offenders indulging in the sale of light diesel or kerosene oil in contravention with the provisions of this JUDGMENT by empowering the Officers holding responsible post only to detect the storage of such article in view of the nature of the offence. The factum that under subclause (3) of the clause 15 of this JUDGMENT the procedure under the Code of Criminal Procedure relating to search and seizure had been made applicable to searches under the JUDGMENT is of no consequence since only that procedure embodied in the Code will be applicable in this matter regarding which no specific provision has been made under this clause. Thus the reading of clause 15, of the JUDGMENT as a whole leaves no doubt that the inconsistent provisions of the Code of Criminal Procedure regarding the power to search etc. will not be applicable to the searches under clause 15 of the order. Consequently, there is no escape but to conclude that only police officer not below the rank of Sub Inspector is competent to conduct such searches or seize the kerosene oil or diesel as the case may be. In the case in hand, there is no dispute that Assistant Sub Inspector Narender had organised a raiding party and effected recovery of kerosene oil during the search. In view of the mandate contained in clause 15 of the JUDGMENT the entire investigation or search conducted by the Assistant SubInspector stands vitiated as he was not competent to do so.

The observations of Iqbal Singh Tiwana, J. of this Court in Pooran Chand v. The State of Punjab, 1988(1) Recent Criminal Reports 138, can be referred with advantage in this regard. In that case also it was held that the entire proceedings taken under clause 15 of the JUDGMENT by Assistant SubInspector Piara Singh stand vitiated as no police officer below the rank of SubInspector of Police was competent to conduct search etc.

For the reasons recorded above, there is no escape but to quash the impugned first information report and the proceedings resulting therefrom by accepting this petition. It is ordered accordingly.