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2002 DIGILAW 1065 (AP)

CH. YEGNAIAH v. State Of A. P.

2002-09-03

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioners, who are accused 1 to 3, invoked the inherent powers of this Court under Section 482 Cr. PC seeking to quash the proceedings in C. C. No. 956 of 2000 on the file of the Judicial first Class Magistrate, Jadcherla. ( 2 ) A brief resume of background of the facts is necessary, enter. The Inspector of Police, Vigilance Cell, Civil Supplies department, Mahaboobnagar inspected the petrol bunk of the first accused, M/s. Yadaiah and sons, a Bharat Petroleum Corporation dealer and recorded density in the presence of the mediators in the morning hours. The said inspector also has drawn samples in three bottles from each tank of MS and hsd outlet nozzles. He sent two sample bottles for analysis. Basing on the report of the analyst, the said Inspector registered a case against the petitioners in Crime No. 123/ vc. MBNR/99 since there was variation in the density beyond the permissible limits and malpractices violating the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and prevention of Malpractices) Order, 1998 and sought to punish the accused under section 7 of the Essential Commodities Act for contravention of clause 2 (e) and clause 5 of MS and HSD (RSDPM) Order, 1998 for short ( the MS and HSD Order ). ( 3 ) THE learned Counsel for the petitioners assails the proceedings on two grounds. The first ground is that the Inspector of Police, Vigilance Cell, Civil Supplies department is not authorised to make search and seizure and the same has to be conducted by an officer not below the rank of Deputy Superintendent of Police in view of Clause IV of the MS and HSD Order. The second contention is that the petitioner has not been supplied with analyst report immediately and no sample bottle has been supplied to get it tested from an independent analyst. Reliance is placed on the provisions of the Food Adulteration Act and Fertilizer (Control) Order. The learned Counsel for the petitioners wanted to draw my attention on the applicability of the provisions by analogy. ( 4 ) THE learned Public Prosecutor has contended that the Inspector of Police, vigilance Cell is a Gazetted Officer of the state and has been authorised to make search and seizure. The learned Counsel for the petitioners wanted to draw my attention on the applicability of the provisions by analogy. ( 4 ) THE learned Public Prosecutor has contended that the Inspector of Police, vigilance Cell is a Gazetted Officer of the state and has been authorised to make search and seizure. It is also contended that it is not a fit case to exercise the inherent powers. It is further contended that there arc no rules whereunder a copy of the analyst report has to be furnished to a dealer so as to send another sample bottle to an independent analyst. ( 5 ) ADVERTING to the contentions, it is necessary to decide whether the Inspector of police has got jurisdiction to make search and seizure in respect of petrol bunk of MS and HSD. Before adverting to the same, it is necessary to have a glance at clause-4 of the ms and HSD (RSDPM) Order of 1998 which reads as under:"4. Power of search and seizure : (A) Any Gazetted Officer of the Central or state Government or any Police Officer nor 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 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 order 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. (III) Inspect any book of accounts or order 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 or authorise the taking of all measures necessary for securing the production of stocks/items so seized before the Collector having jurisdiction under the provisions 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, a copy of which shall be given to the dealer, transporter, consumer or any other concerned persons. (C) The provisions of Section 100 of the code of Criminal Procedure, 1973 (2 of 1974) relating and seizure shall, as far as may be to searches and seizures under this order. "it is clear from the above provision that a police officer not below the rank of Deputy superintendent of Police duly authorised by general or special order, can be permitted to make search and seizure of a petrol bunk of ms and HSD. Clause (c) of the said provision also makes it clear that the provisions of Section 100 of Cr. PC shall apply to searches and seizures under the said Order. The learned Counsel for the petitioners contends that a police officer not below the rank of DSP alone can make search and seizure. The learned Counsel for the petitioners wanted to draw an analogy from the provisions of the SCs and STs (Prevention of Atrocities) Act 1989 and rules made there in, where in Rule 7 contemplates that the investigation has to be conducted by a police officer not below the rank of DSP. The learned Counsel for the petitioners wanted to draw an analogy from the provisions of the SCs and STs (Prevention of Atrocities) Act 1989 and rules made there in, where in Rule 7 contemplates that the investigation has to be conducted by a police officer not below the rank of DSP. He also placed reliance on the principles laid down by a Division Bench of this Court in Viswanadhula Chittibabu v. State of A. P. , 2002 (2) ALD (Cri.) 206, where in it is held that investigation conducted by Sub-Inspector of Police suffers from inherent defect in complying with the mandatory procedural safeguard resulting in prejudice to accused and in that view of the matter, the Court held therein that the procedure is vitiated. To safeguard the interest of SCs and STs, investigation is entrusted to a Police Officer not below dsp of certain qualifications. The application of said principle by analogy to this case does not arise, since the language used therein is quite different. Moreover, certain qualifications of a DSP are mentioned in order to entrust investigation. No such clause is present in the MS and HSD Order. ( 6 ) THE learned Public Prosecutor has contended that the Inspector of Police, vigilance Cell, is a Gazetted Officer authorised by the State to conduct check and seizure under the provisions of the essential Commodities Act. What is mentioned is, the Police Officer who is a gazetted Officer not below the rank of deputy Superintendent of Police can be authorised to make search and seizure of petrol bunks. No doubt, an interpretation has to be made drawn from the rule position extracted above. If the every police officer is taken into consideration as Gazetted officer, there is no need to mention in the clause that a police officer not below the rank of DSP shall investigate the case. If a police officer has to be entrusted with search and seizure, the rule contemplates that he should not be below the rank of DSP. It is not the case of the respondent that the said inspector is working as a Gazetted Officer in the capacity of Police Officer not below the rank of DSP. It is to be seen that he is acting as police officer for a particular purpose. Obviously, the Vigilance Inspector only performed the duties of police officer and not that of gazetted officer. It is to be seen that he is acting as police officer for a particular purpose. Obviously, the Vigilance Inspector only performed the duties of police officer and not that of gazetted officer. He is not authorized by the Government to conduct seizure and check. Therefore authorisation given by general or special order to the inspector of Vigilance in question does not arise and he only performed the duties of police official. Moreover he is designated as a police officer, not as a Gazetted officer. He has acted only in the capacity as police official. In that view of the matter, search and seizure conducted by the Inspector of police, Vigilance Cell is bad, as he is not authorized to do so in terms of the Clause-4 of the MS and HSD Order. ( 7 ) THE second contention canvassed by the learned Counsel for the petitioner is that the petitioners were not supplied with a sample bottle and also analyst report after service of summons. Hence, he contends that the right of the petitioners to get the third sample tested from an independent analyst is deprived. In support of his contention, the learned Counsel for the petitioner relied on the decision of Division bench of this Court in District and sessions Judge Guntur v. State of A. P. , 2000 (1) ALT (Crl.) 103 (DB) (AP), wherein it is held that right to get the sample bottle tested from another independent analyst must be read into the Fertilizer (Control) Order, 1985. Therefore, the learned counsel submits that right to get the sample bottle tested from another independent agency should also be read into the MS and hsd Order. The relevant portion of the said judgment at Paragraphs 4 and 5 reads as under:"it is true that there is no provision for the dealer/manufacturer facing the case for cancellation of licence/registration for violation or facing the criminal prosecution for getting the sample tested from an independent analyst and if the said right is denied, certainly, it will be violative of article 14 of Indian Constitution and so also article 21. It may also be said that the same is not a reasonable restriction. It may also be said that the same is not a reasonable restriction. But on that count, the provision need not be struck down for the reason that the Essential commodities Act aims at real constitutional goal of securing equitable distribution of fertilizers to all the community and at prices notified and also aiming at unadulterated fertilizer coming upto the standard specification. Due process which has been incorporated in Article 21 does not mean that any law made by the legislative body can be taken on the face value without going into the contents as to whether the said law provides a fair procedure or not. Certainly, if the accused is denied of his right to get the sample given to him tested by independent analyst, should he want it, he should be given a chance for doing so and such a procedure will confirm to fairness, or otherwise, it will not. In fact, a division bench of this Court in Ushanna Goud v. Commissioner of Excise, 1993 ALT Suppl. (1) 209, held that the accused is entitled to get the sample tested through an independent agency and not providing the same will be violative of Articles 14 and 21 of Indian constitution. In the said case, rales framed under the A. P. Excise Act by amendment took way the right of the accused getting 3rd sample and depriving him of getting the same tested by independent agency and that was held to be unconstitutional. The principle laid down therein is equally applicable in the instant case. But for the reason that there is no provision made to get the third sample tested from independent analyst, the provisions contained under fertilizer (Control) Order can not be set at naught. Clause 19 (1) does not suffer from any vice of unconstitutionality, merely clause 28 of Schedule II does not contain a provision enabling the person accused of violation to get the third sample tested from an independent analyst. What is not provided under the regulation can always be supplemented by a direction of this Court so as to read the said provision confirming to the fundamental rights and particularly articles 14 and 21 in the instant case. Three samples have to be drawn and one sample has to be given to the accused and the same cannot be dispensed with. Three samples have to be drawn and one sample has to be given to the accused and the same cannot be dispensed with. The purpose of giving the sample to the accused becomes nugatory, if he is not given a right to get it tested by an independent agency. That apart, the fair procedure is violated by not providing such a right. Such a right should be read into the Fertilizer (Control) Act and schedule-II appended to it. In view of what is stated supra, we hold (1) that the Fertilizer (Control) Order 1985 including Clause 19 (1) thereof does not suffer from the vice of unconstitutionality and as such, intra vires the Constitution. . . . . . "it is clear in the said MS and HSD Order that there is no provision to get the sample tested from an independent analyst and as such the same has been denied. It is clearly stated by the Division Bench of this Court in the decision cited supra that certain directions shall be read into the order to get the sample tested from an independent agency. Coming to the facts of the present case, no rule/provision as much is enumerated in the MS and HSD Order. What is contemplated is that sample bottle has to be given to a person/dealer facing the case of cancellation of licence/ registration. The purpose of giving sample to such person/dealer is only to safeguard his interest and make compliance with the provision. It is not stated that he has got right to send the sample to another independent agency. Option is left over to him. The petitioner is, therefore, at liberty to get the sample tested from an independent analyst and tender the same during evidence by way of defence. ( 8 ) COMING to the rule position, it is not for this Court to fill-up the gap and set right the lacuna in the rule position. It is for the concerned authorities to frame rules. This Court in exercise of its powers under section 482 Cr. P. C. cannot decide the constitutional validity of the MS and HSD order. The scope of Section 482 Cr. P. C is very limited and it cannot go beyond the scope of deciding the constitutional validity of the MS and HSD Order. This Court in exercise of its powers under section 482 Cr. P. C. cannot decide the constitutional validity of the MS and HSD order. The scope of Section 482 Cr. P. C is very limited and it cannot go beyond the scope of deciding the constitutional validity of the MS and HSD Order. ( 9 ) INSOFAR as the power of search and seizure by the Inspector of Vigilance in question is concerned, he is not authorised in view of the express provision in Clause-4 of the MS and HSD Order. In view of the above finding, the proceedings are liable to be quashed. ( 10 ) TO sum up, the procedure contemplated under the provisions of Food adulteration Act to get the sample bottle tested by another independent agency can not be read into the rules of the Essential commodities Act, as was done in the decisions cited supra in respect of Fertilizer (control) Order. It is for the concerned authorities to frame rules in the light of the observations made by this Court in the present judgment. In the absence of such rule position, it can not be said that the right of the petitioner is affected. The inspector of Vigilance has no power to record or seize or investigate. ( 11 ) FOR the foregoing discussion, the criminal petition is allowed quashing the proceedings in CC No. 956 of 2000 on the file of the Judicial First class Magistrate, jadeherla.