Jaspal Singh, J. ( 1 ) THE entire controversy in this case revolves around thedelhi Kerosene Oil (Export and Price) Control Order, 1962 (hereinafter called theorder) and more precisely around its Clause 9 (c) which runs as under: "9. Power of entry, search, seizure etc. The Commissioner or any other officerauthorised by him in writing in this behalf may with a view tow to secure compliancewith this order or satisfying himself that this order has to (sic) complied with:- (a ). . . . . . . (b ). . . . . . . (c) enter and search any premises or place or vehicle, and seize any articlein respect of which the Commissioner or the authorised officer suspects that any permission of this order has been, is being or is about tobe contravened. " ( 2 ) BEFORE I spell out the points involved I do feel that a short comment on thefacts would be called for. ( 3 ) THE petitioner was a kerosene oil licensee. On 31/07/1981 two Inspectorsfrom the Food and Supply Department, Delhi Administration searched his business premises, inspected the account books and physically verified the availablestock of kerosene oil. On said inspection 231 liters of kerosene were found short. Some irregularities with regard to issuance of cash memos were also detected. Thisled to the prosecution of the petitioner and ultimate conviction under Section 7 ofthe Essential Commodities Act, 1955 (hereinafter called the Act ). The petitionerpreferred an appeal but with no success. Hence this petition. ( 4 ) ONE more fact needs to be mentioned. In the Departmental proceedingswhich were separately initiated, the Assistant Commissioner, Food and Supplies,delhi Administration called for the explanation of the petitioner but finding it to beunsatisfactory, confirmed the charges so made against him. However, he did holdthat the explanation so tendered had "decreased the seriousness of the chaises"and for that reason revoked the order of suspension of licence and instead orderedthe forfeiture of the "entire security of the licensee". ( 5 ) COMING back to the petition, three contentions were raised. They areenumerated as under: (I) In view of the order of the Assistant Commissioner referred to in thepreceding paragraph, the petitioner stood exonerated of the chargeand consequently his conviction and sentence could not be sustained. ( 5 ) COMING back to the petition, three contentions were raised. They areenumerated as under: (I) In view of the order of the Assistant Commissioner referred to in thepreceding paragraph, the petitioner stood exonerated of the chargeand consequently his conviction and sentence could not be sustained. (ii) The entry, search or seizure was violative of the Sub-section 4 ofsection 100 of the Code of Criminal Procedure inasmuch as theinspectors did not even make an effort to join any witness from thepublic. (iii) The Inspectors had no authority to conduct search etc. and as such theentire proceedings were illegal. ( 6 ) FIRST point first. My attention was drawn to the following observationsmade by a learned Single Judge of this Court in Ramesh Kumar v. State 1985 Crl. LJ. 681 at page 683. "the argument of the learned Counsel for the respondent that the jurisdictionof a departmental officer to scrutinise the facts of a case for proceeding underthe provision of the Order for alleged contravention of the licence etc. isabsolutely distinct from the jurisdiction of a criminal Court and as such thecriminal Court must arrive at an independent finding with regard to thecomplicity of the petitioner in the commission of crime is not atall tenablebecause basically it is the department which is to be satisfied whether there isany contravention of the Order issued undersection 3 of the Actor the licenceissued thereunder and once the department is satisfied that no pirma facieinfraction of the conditions of the licence or the provisions of the order ismade out it will be just an exercise in futility to put the alleged offender ontrial. Indeed, the very bedrock of the prosecution is knocked out in a case likethe present. " ( 7 ) I cannot possibly have any quarrel with the observations made in Rameshkumar s case. The problem is that the said judgment has no application to the factsof the case before me. As would be discernible to even a lay eye, in the judgmentso cited the department had found that there was "no prima facie infraction of theconditions of the licence or the provisions of the order". Unfortunately. or thepetitioner this is not so in his case. Rather, as far as his case is concerned, theassistant Commissioner has confirmed the finding with regard to violation of theprovisions of the Order. Unfortunately. or thepetitioner this is not so in his case. Rather, as far as his case is concerned, theassistant Commissioner has confirmed the finding with regard to violation of theprovisions of the Order. It is this which deprives the petitioner the benefit of thedictum in Ramesh Kumar s case. This much on the first contention. ( 8 ) COMING to the second contention. Sub-sections " and 4 of Section 100 of thecode of Criminal Procedure may be noticed first. They are: " 100. Persons in charge of closed plate to allow starch - (1) whenever anyplace liable to search or inspection under this Chapter is closed, anyperson residing in, or being in charge of, such place, shall, on demandof the officeror other person executing the warrant, and on productionof the warrant, allow him free ingress thereto, and afford all reasonablefacilities for a search therein. (2 ). . . . . . . . (3 ). . . . . . . . (4) Before making a search under this Chapter, the officer or other personabout to make it shall call upon two or more independent andrespectable inhabitants of the locality in which the place to be searchedis situate or of any other locality if no such inhabitant of the said localityis available or is willing to be a witness to the search, to attend andwitness the search and may issue an order in writing to them or any ofthem so to do. " ( 9 ) IT was argued, and as already noticed above, that as not even an effort wasmade to join witnesses from the public, Sub-section 4 of Section 100 of the Codestood violated, vitiating the entire proceedings. In support, my attention wasdrawn to Nilratan Sircar v. Lakshmi Narayan Ram Niwas, AIR 1965 S. C. 1;siddanna v. State of Mysore, 1966 Crl. L. J. 1280 and Prem Lata v. State of Himachalpradesh, 1987 Crl. L. J. 1539. No reference was made by either side to any otherjudgment. ( 10 ) NILRATAN s case (supra) was under Foreign Exchange Regulation Act, 1947and dealt with the scope of its Sections 19 and 19a. Sub-section 3 of Section 19 ofthe Act runs as under:. L. J. 1280 and Prem Lata v. State of Himachalpradesh, 1987 Crl. L. J. 1539. No reference was made by either side to any otherjudgment. ( 10 ) NILRATAN s case (supra) was under Foreign Exchange Regulation Act, 1947and dealt with the scope of its Sections 19 and 19a. Sub-section 3 of Section 19 ofthe Act runs as under:. " (3) If on a representation in writing, made by a person authorised in thisbehalf by the Central Government or the Reserve Bank a District Magistrate,sub-Divisional Magistrate, Presidency Magistrate or Magistrate of the firstclass, has reason to believe that a contravention of any of the provisions of thisact has been, or is being or is about to be, committed in any place;or that a person to whom an order under Sub-section (2) of this Section hasbeen or might be addressed, will not or would not produce for information,book or other document;or where such information book or other document is not known to themagistrate to be in the possession of any person;or where the Magistrate considers that the purposes of any investigation orproceeding under this Act will be served by a general search or inspection;he may issue a search warrant and the person to whom such warrant isdirected may searchor inspect in accordance therewith and seize any book or otherdocument, and the provisions of the Code of Criminal Procedure, 1898 relating tosearches under that Code shall, so far as the same are applicable, apply to searchesunder this Sub-section:provided that such warrant shall not be issued to any Police Officer below therank of Sub-Inspector. Explanation.- In this Sub-section, place includes a house, building, tent,vehicle, vessel or aircraft. "on the basis of Sub-section (3) reproduced above, it was held by the Supremecourt that the provisions of Sections 101,102 and 103 of the Code applied tosearches under Sub-section (3) of Section 19. Is this judgment attracted to thecase before me? I think not. The reason is that in the Order in question thereis no provision like Sub-section (3) referred to above. The absence of any suchprovision lends support to the argument that it was not the intention of thelegislature to extend the special provisions relating to searches held underthe Order. Even the Essential Commodities Act does not contain any provision making applicable all the provisions of the Code of Criminal Procedurein investigation to be conducted by the authorities concerned. The absence of any suchprovision lends support to the argument that it was not the intention of thelegislature to extend the special provisions relating to searches held underthe Order. Even the Essential Commodities Act does not contain any provision making applicable all the provisions of the Code of Criminal Procedurein investigation to be conducted by the authorities concerned. Section 12-ACmakes applicable the provisions of the Code only to the proceedings before aspecial Court. This being the position I fail to see as to how Section 100 canbe imported into the Order or the Act. And, it is this reason that makes theother two judgments also inapplicable. In Siddanna s case (supra) there wasa provision for the issuance of a search warrant and Sections 79,96,103 of thecode were held to apply to issue of such warrants. And, coming to the thirdjudgment namely Prem Lata v. State of Himachal Pradesh (supra), it was acase under the Punjab Excise Act, 1914. Section 50 of the said Act specificallymakes the provisions of the Code of Criminal Procedure applicable relatingto searches and search-warrants etc. ( 11 ) ASSUMING arguendo that Section 100 of the Code of Criminal Procedureapplies or that, in any case, it should be observed in order to ensure that no harmor wrong is done to the accused, much cannot be allowed to be made out of it sinceit is neither shown nor was it urged even by way of a passing reference, that by itsnon-observance prejudice had been caused to the petitioner. The evidence on therecord clearly establishes that the provisions of the Order had been violated. Thisbeing the position irregularity of search is no bar to conviction. After all evidencefound in illegal search is not inadmissible in evidence (See: Sunder Singh v. State ofu. P. AIR 1956 SC 401 ). ( 12 ) IN Khandu Sonu v. State of Maharashtra AIR 1972 SC 958 , the Supremecourt was dealing with a submission that the investigation of that case had not beendone in accordance with law, and therefore, the whole trial was vitiated. It wasobserved; "it is well established that where cognizance of a case has, in fact, been takenby the Court on a police report following investigation conducted in breachof provisions of Section 5-A the result of the trial cannot be set aside unless theillegality in investigation can be shown to have brought about a miscarriageof justice. It wasobserved; "it is well established that where cognizance of a case has, in fact, been takenby the Court on a police report following investigation conducted in breachof provisions of Section 5-A the result of the trial cannot be set aside unless theillegality in investigation can be shown to have brought about a miscarriageof justice. The underlying reason for the above dictum is that an illegalitycommitted in the course of investigation does not affect the competence andjurisdiction of the Court to try the accused. Where the trial of the case hasproceeded to termination, the invalidity of the preceding investigation wouldnot vitiate the conviction of the accused as a result of the trial unless theillegality in the investigation has caused prejudice to the accused. " ( 13 ) SIMILARLY in Radha Kishan v. State of Utter Pradesh, AIR 1963 SC 822 , thecontention was that the search and seizure had not been in conformity with theprovisions of the Code of Criminal Procedure and that illegality in the search andseizure had vitiated the trial. The Supreme Court negatived the said contention andobserved: "we will deal with the last four points first. So far as the alleged illegality ofthe search is concerned it is sufficient to say that even assuming that the searchwas illegal the seizure of the articles is not vitiated. It may be that where theprovisions of Sections 103 and 165, Code of Criminal Procedure are contravened the search would be resisted by the person whose premises are soughtto be searched. It may also be that because of the illegality of the search thecourt may be inclined to examine carefully the evidence regarding theseizure. But beyond these two consequences no further consequence ensues. " ( 14 ) FOR what has been noticed above even if the provisions of Section 100 ofthe Code of Criminal Procedure are held applicable much cannot be allowed to bemade out of it more so when on account of their non-compliance no prejudice isshown to have been caused. ( 15 ) IT is the third point which invites serious thought. ( 16 ) AS would be borne out from a bare reading of Clause 9 (c) of the Order itis only the Commissioner or an officer authorised by him in writing who can affectsearch or seizure and that too only when he suspects some infraction of the Order. ( 15 ) IT is the third point which invites serious thought. ( 16 ) AS would be borne out from a bare reading of Clause 9 (c) of the Order itis only the Commissioner or an officer authorised by him in writing who can affectsearch or seizure and that too only when he suspects some infraction of the Order. The language of the Clause clearly spells out the intention and it is to ensure thatthe officers charged with the duty of conducting searches, conduct them properlyand do not harm or wrong to dealers, licensees etc. In the instant case the Inspectorswho searched the place and seized the record have nowhere claimed either in theircomplaint to the Station House Officer or in their statements before the Court, thevesting of authority on them or the existence of any ground on the basis of whichthey suspected violation of any condition or Clause of the Order.- ( 17 ) BE that as it may be I do feel that Clause 9 (c) contains valuable safeguardsfor the liberty of the citizen in order to extend protection to him from ill-foundedor frivolous prosecution or harassment. Any cavalier approach to such a statutorysafeguard may lead to far-reaching consequences. It is probably on account of acuteawareness of such fall-out that the Clause makes it clear that besides the Commissioner himself, the power to conduct searches etc. would be exercised by suchofficers only who have been so authorised in writing by him. Unfortunately, in thecase in hand no such authorization has been placed on the record. The statementmade in this regard by the concerned Inspector namely, D. P. Singh (PW-1) is mostrevealing. It reads: "we have received a permission from my senior officers to get inspected theshop. I do not remember that if the permission was sought orally or in writing. It is correct that this fact is not mention (sic.) in Ex. PW1 /f (First Informationreport ). "can this solitary bald statement be. taken to mean that he had been authorised inwriting by the Commissioner to conduct the search? To my mind to hold so wouldnot be wise but otherwise. We see neither the substance nor even the shadow. Sucha casual nay, callous disregard of a salutary provision is neither fair to the accusednor to the State nor even to the vast mass of the people for whose protection suchlaws are made and administered. To my mind to hold so wouldnot be wise but otherwise. We see neither the substance nor even the shadow. Sucha casual nay, callous disregard of a salutary provision is neither fair to the accusednor to the State nor even to the vast mass of the people for whose protection suchlaws are made and administered. ( 18 ) SINCE by the exercise of power conferred by Clause 9 (c) a serious invasionis made upon the rights, privacy and freedom of a person, it must necessarily beexercised strictly and in conformity with the dictates of law and only by one whois authorised by law to so exercise. It is not a case of error of judgment on the partof the Inspector concerned. It is also not a case of irregularity in the course of entry,search and seizure committed by an officer acting otherwise in pursuance of theauthorization. It is a case where the officer acted sans authority. He exercisedpower which was not there. And he exercised it when even the conditions for itsexercise were not satisfied. It is this which vitiates the entire proceeding. ( 19 ) THIS still is not the end of the matter. I am adverting to a point which hasnot been pleaded but to which attention was drawn by me during arguments. ( 20 ) LET us have another look at Clause 9 (c ). Under it, as already noticed above,the Commissioner or any other officer authorised by him in writing in this behalfmay with a view to secure compliance with the Order or satisfying himself that theorder has been complied with, enter and search any premises or place or vehicleand seize any article in respect of which the Commissioner or the authorised officer"suspects that any provision of the Order has been, is being or is about to becontravened. " ( 21 ) TO my mind Clause 9 (c) of the Order is bad, it being in excess of the powersconferred on the Central Government by Section 3 (2) (j) of the Essential Commodities Act, 1955. Section 3 (2) (j) of the Act reads as under: "3. Powers to control Production, supply, distribution, etc. " ( 21 ) TO my mind Clause 9 (c) of the Order is bad, it being in excess of the powersconferred on the Central Government by Section 3 (2) (j) of the Essential Commodities Act, 1955. Section 3 (2) (j) of the Act reads as under: "3. Powers to control Production, supply, distribution, etc. of essentialcommodities:- (1) -.---- -.-- -.-- -.-- -.-- (2) Without prejudice to the generality of the powers conferred by Subsection (1), an order made thereunder may provide:- (j) for any incidental and supplementary matters including in particular,the entry, search or examination of premises, aircraft, vessels, vehiclesor other conveyance and animals, and the seizure by a person authorised to make such entry, search or examination,- (i) of any articles in respect of which such person has reason to believethat a contravention of the order has been, is being, or is about to be,committed and any packages, coverings or receptacles in which sucharticles are found;conveyance or animal used in carrying such articles, if such person hasreason to believe that such aircraft, vessel, vehicle or other conveyanceor animal is liable to be forfeited under the provisions of this Act; (iii) of any books of accounts and documents which in the opinion of suchperson, may be useful for, or relevant to, any proceeding under thisact and the person whose custody such books of accounts or docu-ments are seized shall be entitled to make copies thereof or to takeextracts therefrom in the presence of an officer having the custody ofsuch books of accounts or documents. "the controversy revolves around the use of word "suspects in the Order andthe words "reason to believe" in Section 3 (2) (j) (i) of the Act, and the questionis: Has not the Central Government exceeded its power by using the word"suspects" as against the words "reason to believe"? ( 22 ) IT was contended by the learned Counsel for the State that the word"suspects" is neither contrary nor inconsistent with the words, "reason to believe"since suspicious circumstances may constitute a ground for forming a reasonablebelief. The learned Counsel for the petitioner, however, had nothing much tocontribute and no authority was cited by either side. ( 23 ) TRUE, in a given case, suspicious circumstances may help in or lead toformation of a reasonable belief but that would not bring "suspect" expar with"reason to believe". The learned Counsel for the petitioner, however, had nothing much tocontribute and no authority was cited by either side. ( 23 ) TRUE, in a given case, suspicious circumstances may help in or lead toformation of a reasonable belief but that would not bring "suspect" expar with"reason to believe". The word "suspect" undoubtedly requires a degree of satisfaction but not necessarily amounting to belief. "suspect" does extend beyondspeculation but for it the thought of belief remains unattained. In Words Andphrases, Permanentedition 36, this is how the words "reason to Believe" are dealtwith: "mere suspicion that an individual is afflicted with an isolable disease is notsufficient to give a health officer "reason to believe" that such person is soafflicted, under Pol. Code. . . "in Commonwealth v. Certain Lottery Tickets, 59 Man. 369, 371, it was observed: "the words suspect and believe are not technical words, and have not bythe approved use of the language the same meaning. Suspecting is notbelieving. That may be a ground for suspicion which will not induce belief. "in a judgment coming from Canada, Gifford v. Kelson (1943) 51 Man. R 120at 124 it was observed by Dysart J. : "a suspicion or belief may be entertained, but a suspicion and belief cannotexist together. Suspicion is much less than belief; belief includes or absorbssuspicion. "when, we speak of "reason to believe" we mean a conclusion arrived at as tothe existence of a fact. Of course "reason to believe" docs not amount to positiveknowledge nor does it mean absolute certainty but it does convey conviction of themind founded on evidence regarding the existence of a fact or the doing of an act. Suspicion, on the other hand rings uncertainty. It lives in imagination. It is inkling. It is mistrust. It is chalk. reason to believe is not. It is cheese. ( 24 ) WHAT then, is the effect? As would be clear, the protection to the citizenfrom search which is a process exceedingly arbitrary in character, by insisting aspre-requisite that the Commissioner or the authorised officer should have reasonto believe that a contravention of the Order has been, is being, or is about to becommitted is not to be found in Clause 9 (c ). "reason to believe" has given way to"suspects". This deliberate change invests the Commissioner and the authorisedofficer with power which is highly arbitrary and drastic in character. "reason to believe" has given way to"suspects". This deliberate change invests the Commissioner and the authorisedofficer with power which is highly arbitrary and drastic in character. The powerso assumed is surely in excess of the delegated authority to issue Orders since itclearly reduces the protection granted by the Act and enlarges the arbitrariness ofthe power of searches and seizures etc. exercised by the Commissioner and theauthorised officers. It is this what makes Clause 9 (c) bad. The petition is accepted with the result that the judgment of conviction andthe order of sentence stand set aside.