Mr. Sulaiman vs The State

Arali Nagaraj, J.—The petitioner herein who is the only accused in Crime No. 31/2010 of Panambur P.S. Mangalore D.K., has sought for an order.

(i). Quashing the seizure mahazar dated 03.03.10 drawn in the said case.

(ii) Quashing the order dated 22.03.10 passed by the learned JMFC II. Mangalore, in the said case rejecting the application of this petitioner filed under Sections 451 and 457 Cr.P.C. seeking interim custody of the boat, tank and the diesel seized in the said case.

(iii) Quashing the FIR in the said Crime No. 31/10 of Panambur P.S.

Though this matter is listed today for admission, having regard to the nature of the reliefs sought for and facts of the case, it is taken for final disposal and arguments of Sri P.P. Hegde, the learned Counsel for the petitioner and Sri Vijayakumar Majage the learned HCGP are heard. Perused the complaint, seizure mahazar, FIR and other material placed on record by the learned Counsel for the petitioner.

Stated in brief the case of the prosecution is as under:

(i) On 03.03.10 at about 5.30 p.m., on receipt of credible information. PSI of Panambur P.S. went to the Bank of Gurupura River within the limits of his P.S. and found there a boat in the river with 15 barrels and a Syntex tank containing diesel stored therein. The petitioner Sulaiman was found sleeping in the said boat. When the said PSI enquired about the documents pertaining to the said diesel he did not produce anything. Therefore the said PSI found that 15 barrels containing 200 ltrs. of diesel in each of them and also the Syntex tank containing diesel were stored in the said boat illegally for the purpose of transportation in violation of the provisions of The Motor Spirit and High Speed Diesel (Regulation of Supply And Distribution And Prevention of Malpractices) Order. 1998 (hereinafter referred to as the Order) passed u/s 3 of the Essential Commodities Act. Therefore the said PSI took out sample of the diesel from the said barrels and Syntex tank and seized the said boat and also diesel in the presence of panchas and drew up seizure mahazar to that effect.

(ii) After the boat, diesel barrels and Syntex tank came to be seized, the PSI submitted property forms to the Court of the learned JMFC II Mangalore, and thus reported the seizure. The said PSI registered the above said case against the present petitioner accused for the offence punishable u/s 285 IPC and also for the contravention of the provisions of the said order issued u/s 3 issued of Essential Commodities Act which is punishable u/s 7 of the said Act.

(iii) Thereafter the petitioner filed his application before the said Court under Sections 451 and 457 of Cr.P.C. seeking interim custody of the boat and diesel seized under the said seizure mahazar dated 03.03.2010. The learned JMFC, by his impugned order dated 22.03.2010 rejected the said application.

The main ground urged by the learned Counsel for the petitioner accused is that as provided under Clause 1 of the Order, it is only a Gazetted Officer of the Central or State Government or any Police Officer not below the rank of Dy. S.P. duly authorised by general or special order by the Central Government or the State Government, who is competent to make search and seize the motor spirit or high speed diesel for the alleged contravention of any of the provisions of the said Order and therefore, since the search and seizure in the instant case is effected by the PSI who is below the rank of the Dy. S.P. the entire search and seizure, being illegal, cannot be sustained in law.

Clause 4 of the said Order reads as under:

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 of 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 (his order and hereafter take to 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 authorised officer shall record in writing the reasons for doing so, as 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.

On careful reading of the above provisions of Clause 4 of the said Order, it is clear that it is only the Police Officer not below the rank of Dy. S.P. duly authorised by the Government concerned, who is competent to make search and seize the essential commodity namely the motor spirit or high speed diesel for the alleged contravention of any of the provisions of the said Order. In the instant case, since the PSI. who is below the rank of Dy. S.P. has conducted the search and seized the boat, and also the diesel contained in 15 barrels and one Syntex Tank stored in the said boat, on the face of it, the search and seizure is illegal.

In support of his contention, the learned Counsel for the petitioner has relied upon decision of this Court, in the case of Balakrishna and Others Vs. State, , it is observed by the learned Single Judge (at para No. 5) as under:

The learned Counsel also relies on Roy V.D. Vs. State of Kerala, . This pertains to NDPS Act where the quashment of charge was sought on the allegation that search and seizure was made by Excise Inspector, not authorized under Sections 41 and 42 of NDPS Act. The reading of the Clause 4 of 1998 Malpractice Order would make it clear that the Police Inspector was not an authorized Officer. In other words, no Officer of the Police Department below the rank of Deputy Superintendent of Police was authorised to raid, search and seize for contravention of any of the Licence order.

Respectfully agreeing with the view taken by the learned Single Judge of this Court in the said case, I am of the considered opinion that the seizure mahazar drawn by the PSI Panambur P.S. dated 03.03.2010 in respect of the seizure of the said boat and 15 barrels of diesel deserves to be quashed. Since the very seizure mahazar is to be quashed, all further proceedings in Crime No. 3l/10 of Panambur P.S. which came to be registered on the basis of the said seizure also shall have to be quashed.

The seizure of the said boat and diesel contained in the Syntex Tank and 15 barrels for the alleged contravention of the said order ought to have been reported not to the Magistrate but to the Collector as provided under Essential Commodities Act for initiating confiscation proceedings in respect thereof. Records disclose that subsequent to registration of the said crime and issuing of the FIR, the complainant-police reported the seizure to the Collector with the permission of the learned JMFC. Under these circumstances, the prayer of the petitioner herein to quash the impugned order dated 22.03.2010 passed in the said case by the learned JMFC rejecting the application of this petitioner filed under Sections 451 and 457 Cr.P.C. seeking interim custody of the seized articles does not survive.

Sri Vijayakumar Majage, the learned HCGP referring to the contents of the FIR submits that the said FIR is issued against, the petitioner not only for the offence under the Essential Commodities Act, but also for the offence u/s 285 IPC and therefore entire proceedings in the said FIR cannot be quashed.

Per contra, the learned Counsel for the petitioner- accused strongly contends that the entire averments in the report submitted by the complainant PSI and the recitals in the seizure mahazar even if taken at their face value and in their entirety, the ingredients of the offence punishable u/s 285 IPC are not made out and therefore the entire proceedings in the said FIR deserve to be quashed.

The learned HCGP is not in a position to show from the recitals in the said panchanama and also from the averments in the said report that the ingredients of Section 285 IPC are made out. Therefore. I am of the view that the entire investigation pursuant to the said FIR deserves to be quashed.

For the reasons aforesaid I pass the following:

ORDER

The present petition filed u/s 482 Cr.P.C. is hereby allowed in part. The impugned seizure mahazar dated 03.03.2010 drawn by the PSI of Panambur P.S. in respect of the seizure of boat and 15 barrels of diesel each containing 200 ltrs. and also the Syntex tank containing diesel is hereby quashed. All further proceedings in Crime No. 31/2010 which has been registered by the Police of Panambur P.S. for the offences u/s 285 IPC and also u/s 7 of the Essential Commodities Act for the alleged contravention of the provisions of The Motor Spirit and High. Speed Diesel (Regulation of Supply And Distribution And Prevention of Malpractices) Order. 1998 issued u/s 3 of the Essential Commodities Act, are hereby quashed.

The petitioner shall be at liberty to approach the Deputy Commissioner/Assistant Commissioner concerned (Collector under the Essential Commodities Act) to whom the seizure of the said boat. Syntex tank and diesel is reported by the said police and seek their release in his favour.