State of Haryana vs Bijender

M.L. Singhal, J.

This revision has been preferred by the State of Haryana against the order of Special Judge, Narnaul appointed under the Essential Commodities Act, 1955 whereby he discharged the respondents under Section 7 of the Essential Commodities Act, 1955 (in short "Act") for having contravened the provisions of Section 6(3)(b) of the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977 issued and promulgated under the Act.

Facts of the prosecution case in brief are that during the night intervening 2 and 3.3.1996 at about 12 O'' Clock, accused were found carrying 21 bags of wheat from village Ganwari Jat to Rajasthan. They were apprehended in the area of village Ganwari Jat. Bijender accused is the depot holder of village Ganwari Jat. He had received said 21 bags of wheat for sale to the ration card holders. Case of the defence, on the other hand, was that the said bags of wheat did not belong to the depot of the accused. Bhagirath accused had purchased said bags of wheat on 2.3.96 from M/s Vishnu Trading Company, Nangal Chaudhary against cash memo.

Accused were discharged by the Special Judge, Narnaul appointed under the Act on the ground that the case had been investigated by Head Constable who was not competent to investigate it. Case ought to have been investigated by a police officer not below the rank of Sub Inspector of police as provided in Section 11 of the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977. Learned Special Judge, Narnaul felt that the investigation by Head Constable was no investigation in the eyes of law and was absolutely unauthorised. Similarly, investigation by ASI was equally unauthorised having no legal sanction behind it.

Not satisfied with the order of discharge passed on 7.10.96 by Special Judge, Narnaul under the Essential Commodities Act, 1955, State of Haryana has knocked the door of this Court through this revision. In support of this revision, learned Assistant Advocate General, Haryana has submitted that the investigation conducted by an officer not empowered to investigate is not void sufficient enough to put an end to the case. Investigation conducted by an officer not empowered to investigate may put an end to the case if it is shown that the accused had suffered prejudice due to investigation of the case by an officer not empowered to investigate. To fortify his submission, he has drawn my attention to the authorities reported as Siri Ram v. State of Punjab, 1994(1) RCR 125 ; Durga Dass v. State of Himachal Pradesh, 1973(II) Crl. Law Journal 1138 and Dr. M.C. Sulkunte v. State of Mysore, AIR 1971 SC 508.

In Siri Ram v. State of Punjab (ibid) it was held as under :

"The law is well settled on the point that any illegality or irregularity during the investigation of the case is not sufficient to vitiate the trial or conviction unless it has resulted in prejudice to the accused or in miscarriage of justice."

The observations of the final Court in Durga Dass v. State of Himachal Pradesh, 1973(II) Crl.L.J. 1138, can be referred with advantage in this regard. In that case, the SubInspector of the police was not authorised to investigate the case under Section 5A of the Prevention of Corruption Act, 1947 and the conviction was sought to be set aside on that score before the High Court. High Court however, considered this contention and rejected it. The Apex Court in para 8 of the judgment agreed with the findings of the High Court holding that irregularity in the investigation would not vitiate the trial or conviction in the absence of any evidence of the appellant having been prejudiced.

In H.N. Rishbud and another v. State of Delhi, AIR 1955 SC 196, the final Court while considering the provisions of Section 5A of the Prevention of Corruption Act, 1947 (as amended by Act No. 59 of 1952) providing that investigation for an offence under that Act shall not be conducted by an officer below the rank of Deputy Superintendent of Police without specific order of the Magistrate, while observing that these provisions are mandatory and not directory in nature and that the investigation conducted in violation thereof bears the stamps of illegality, committed during the investigation of the case has no direct bearing on the competency of the court to take cognizance of the offence or to vitiate the trial unless it has resulted in miscarriage of justice or prejudice to the accused."

Learned counsel for the respondents on the other hand, submitted that the prosecution launched against the accused on the basis of search and seizure conducted by an officer not authorised to do it is illegal, void and denude of legal validity. He has drawn my attention to Harpal Singh and others v. State of Punjab, 1991(3) RCR (Crl.) 307 : 1991(2) CLR 71 , where it was held that where power of entry, search and seizure etc. under the Punjab Light Diesel Control and Kerosene Licensing JUDGMENT 1978 can be exercised by Director/Asstt. Director, Food and Supplies, District Magistrate, Inspector or Sub Inspector of police, ASI of police shall have no jurisdiction in the matter. Search and seizure conducted by ASI of police is without jurisdiction and so is the prosecution launched on the basis of such search and seizure. He has drawn my attention to Ashok Kumar v. State of Haryana, 1991(2) RCR (Crl.) 140 : 1991(2) CLR 20 , where it was held that where in respect of the contravention of the Haryana Kerosene Dealer Licensing JUDGMENT 1976, power of entry, search and seizure was given to Assistant Food and Supplies Officer or above, entry, search and seizure conducted by Inspector, Food and Supplies is ineffective. Prosecution launched against the accused on the basis of such search and seizure is ineffective. He has drawn my attention to Suresh Kumar v. State of Haryana, 1996(3) RCR 137 , where also it was held that where police officer of the rank of SI was not authorised and notified under the Liquified Petroleum Gas Regulation (Supply and Distribution) JUDGMENT 1993 to effect entry, search and seizure under the said order and conduct investigation, entry, search and seizure by him under that order is of no effect. Prosecution launched against the accused on the basis of such entry, search and seizure is illegal and ineffective and has to be quashed.

In this case also the investigation by Head Constable or ASI of Police is no investigation in the eyes of law when under the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977, Head Constable or ASI had not been authorised to embark upon investigation for violation of the provisions of Section 6(3)(b) of that order punishable under Section 7 of the Essential Commodities Act, 1977.

I do not find any force in this Crl. revision, which is, accordingly, dismissed.

Revision dismissed.