Narayan Prasad Sultania vs The State of Bihar

Samarendra Pratap Singh, J.—Heard learned counsel for the parties. In the instant application, the petitioner has prayed for quashing of the criminal proceedings registered u/s 7 of the Essential Commodities Act, 1955 arising out of Jadia Police Station Case No. 33 of 2004.

The prosecution case in short is that a Sub-Inspector of Police intervened a tank lorry loaded with 12,000/- liters of diesel near Jadia Hanuman Mandir. On query, the driver of the tanker lorry disclosed that the diesel was loaded from Super Highway Service, Begusarai and was on en route to Triveniganj. On being enquired, the driver did not give any satisfactory reply regarding parking of the diesel near Jadia Hanuman Mandir which, according to the informant, was not on en route to Triveniganj.

Sri N.K. Agrawal, learned counsel appearing on behalf of the petitioner submitted that one can go from Begusarai to Triveniganj via Jadia Triveniganj. In support of the contention, he referred to annexure-2 which is a copy of the relevant route map. He further submitted that even assuming the tanker carrying diesel was being taken to some other place it cannot be fully presumed that the same was being taken for the purpose of selling in black market. Thus on such mere suspicion the petitioner cannot be made accused for the offence u/s 7 of the E.C. Act, 1955 in view of the decision laid down by the Apex Court reported in Malkiat Singh Vs. The State of Punjab, . It is further submitted that the prosecution is illegal and not maintainable also on the ground that the officer who made search and seizure for alleged violation of Section 3 of the E.C. Act, 1955 was not competent to do so. In this respect, learned counsel for the petitioner has referred to some decisions of this Court, reported in Roshan Lal Arjun Lal Vs. State of Bihar and Others, and 1988 PLJR 623 (Ram Chandra Pansari vs. The State of Bihar). While referring to the above decisions, learned counsel for the petitioner has tried to impress this Court that an officer in the rank of Sub-Inspector of Police was not competent to make aforesaid search and seizure. He further referred to two orders, namely, Bihar Motor Spirit and High Speed Diesel Oil Dealer''s Licensing Order, 1966 (annexure 3) and Motor Spirit & High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 made under the provisions of Section 3 of the E.C. Act, 1955 controlling the trade of diesel. Learned counsel further submits that the aforesaid two orders also do not empower a Sub-Inspector of Police of a Police Station to make search and seizure.

Learned counsel for the State submitted that the informant had some basis for suspecting that the seized diesel as contained in the tank lorry in question might be sold in black market as the tank lorry was found parked near Jadia Hanuman Nagar which was not en route to Triveniganj. However, learned counsel for the State could not dispute the proposition that an officer in the rank of a Sub-Inspector of Police is not an authorised officer to make search and seizure either under the Bihar M.S. & H.S. D.O.D. Licensing Order, 1966 or Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 or under provisions of the Essential Commodities Act.

On hearing learned counsel for the parties, it appears that apart from the suspicion, the informant did not have very cogent or material reasons for making allegation that the diesel in question would be used in selling in the black market. On perusal of provisions of the E.C. Act, 1955 and the aforesaid Licensing Orders, it further appears that the police officer in the rank of Sub-Inspector is not a competent authority for making search and seizure for constituting offence u/s 3 of the E.C. Act. In view of settled proposition of law, search and seizure made by the informant who is Sub-Inspector of Police of a Police Station for the purpose of constituting offence u/s 3 of the E.C. Act is not maintainable and is without jurisdiction. As such, this quashing application is allowed and criminal prosecution arising out of Jadia P.S. Case No. 33 of 2004 pending in the Court of the Chief Judicial Magistrate, Supaul is hereby quashed.