Suresh Kumar vs State of Haryana

Swatanter Kumar, J. (Oral)

The only question that arises for consideration in both Crl. Misc. No. 10613M of 1994 and Crl. Misc. No. 13928M of 1994, which are petitions under Section 482 of the Code of Criminal Procedure, is that whether a police officer, who is not authorised and notified under the provisions of Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) JUDGMENT 1993 (hereinafter referred to as "the JUDGMENT") can exercise power of entry, search and seizure under the said order and could conduct the investigation. Said clause of the order reads as under :

"Power of entry, search and seizure.

(1) An officer of the Department of Food and Civil Supplies of the Govt. not below the rank of an Inspector, authorised by such Govt. and notified by the Central Government, or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorised by the Central Government, may with a view to ensuring compliance with the provisions of this order, for the purpose of satisfying himself that this order or any order made thereunder has been complied with:

(a) Stop and search any vessel or vehicle which the officer has reason to believe has been or is being, or is about to be, used in the contravention of this order:

(b) enter or search any place with such aid or assistance as may be necessary;

(c) Seize and remove, with such aid or assistance as may be necessary, the entire quantity of any stock of liquified petroleum gas in cylinders, cylinde valves and pressure regulators, alongwith the vehicles, vessels or any other conveyance used in carrying such stock if he has reason to suspect that any provision of this order has been or is being or is about to be contravened in respect of such stock and thereafter take or authorise the taking of all measures necessary for securing the production of the stock of liquified petroleum gas in cylinders, cylinders, gas cylinder valves, pressure regulators, vehicles, vessels or other conveyance to seize before the Collector having jurisdiction under the provisions of Section 7 of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production;

The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this order."

The petitioners in these cases were directed to face the trial upon framing of the charge against them vide order dated 24.5.1994, Annexure P2 to the petition.

Fourwheeler bearing No. HYO 3021 was coming from Rohtak side and it was loaded with gas cylinders. On enquiry, the accused and other coaccused who were in the said vehicle, were unable to produce any paper to show valid purchase and carrying of these cylinders. The police consequently collected other evidence against these accused and found them guilty for violating the provisions of the aforesaid JUDGMENT and registered an First Information Report under Section 7 of the Essential Commodities Act, 1955. Challan was filed by the concerned police officer who was admittedly Sub Inspector in the present case and on the basis of which the Court chargesheeted, as indicated above.

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 authorised 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 authorised by the Central Government or a State Government and notified by the Central Government and in conformity with sub clause 1 of 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 authorised and notified by the State and Central Government in furtherance to the statutory mandate of Clause 7 of the

Learned counsel for the petitioner has relied upon the judgments of this Court in case of Harpal Singh and others v. State of Punjab 1991(2) Chandigarh Law Reporter 71, Raj Kumar v. State of Punjab 1994(2) Chandigarh Law Reporter 24, Ashok Kumar v. State of Haryana, 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, 1995(2) Recent Criminal Reports 427 . Thus, settled position of law is that a police officer of the rank of Sub Inspector is not authorised and notified person under the JUDGMENT and consequently could not have exercised the power of entry, search and seizure and certainly under Clause 7 of the JUDGMENT the powers of entry, seizure, search and investigation of the case do not vest in Sub Inspector of police who was not authorised 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 1965 (1) Criminal Law Journal 100.

In view of the discussion above, charge against the petitioners in both the petitions framed on 25.5.1994 is hereby quashed and the petitioners are hereby discharged. There shall be no order as to costs.

Both the petitions are disposed of accordingly.