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2002 DIGILAW 1124 (PNJ)

Mohinder Singh v. State Of Haryana

2002-10-23

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The appellant has been convicted and sentenced by the Judge, Special Court, Karnal under Section 7 of the Essential Commodities Act (hereinafter called the Act) to under go rigorous imprisonment for 6 months and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo further imprisonment for 2 months. 2. The prosecution story is that on 14.1.1988 Amir Singh son of Banwari Lal was in need of kerosene oil in order to prepare some eatables for his wife who had given birth to a son. He went to the shop of the appellant which is near Amar Bhawan crossing, Panipat in search of kerosene oil. The appellant sold 5 liters of kerosene oil @ Rs. 18/- whereas its control rate was Rs.12.50 for 5 liters. Amir Singh supplied the information to ASI Zile Singh who was on patrol duty on the Sahuli Road that the appellant was selling kerosene oil at a higher price. ASI Zile Singh constituted raiding party and he raided the shop of the appellant at about 7.30 P.M. The case against the appellant was registered. After completion of the investigation, challan was presented before the Judge, Special Court, Karnal, the appellant was charge-sheeted under section 7 of the Act read with section 420 IPC. After trial, the appellant was convicted and sentenced as stated in the first paragraph of the judgment. 3. Ms. Ashima Mahindroo, learned counsel for the appellant raised the sole contention in this case. She submitted that the proceedings in this case have been vitiated as the investigation in this case was done by ASI who was not competent to investigate the case. 4. Shri K.S. Chauhan, DAG, Haryana failed to rebut the submission made by the counsel for the appellant. 5. The Government of Haryana has issued notification No. G.S.R. 24/C.A. 10/55/S.3/76 dated 12.3.1976 under section 3 of the Essential Commodities Act, 1955 for maintaining supplies, securing equitable distribution and availability at fair prices of kerosene in the State of Haryana. Under this notification, the power of entry, search and seizure has been given in Clause II which reads as under : "11. Under this notification, the power of entry, search and seizure has been given in Clause II which reads as under : "11. Power of entry, search and seizure - (1) The Director, the District Magistrate, the District Food and Supplies Officer, the Assistant Food and Supplies Officer, the Inspector, Food and Supplies or any other officer authorised in this behalf by the State Government, may with a view to securing compliance with this order or to satisfy himself that this Order has been complied with : (a) enter and inspect any depot or any other business premises of kerosene dealer or any premises on which he has reasons to believe that kerosene has been, is being or is likely to be kept, stored, distributed, disposed of or from which kerosene has been, is being or is likely to be removed or transported; (b) stop and inspect any vehicle or animal on which kerosene is being carried for sale, supply or storage; (c) search and as far as may be necessary for that purpose detain any person or vehicle or animal of the dealer; (d) seize any kerosene found in the possession of such licence holder or such person or in such vehicle or on such animal in respect of which he has reason to believe that a contravention of this Order has been, is being or is about to be committed; and (e) every person (including his agents and servants) incharge of a vehicle or animal or premises which is searched or is sought to be searched under the provisions of sub-clause (a) shall allow the authority making the demand, access to such premises, vehicle or animal and shall also answer all questions put to him truthfully and to the best of his knowledge and belief. (2) The provisions of section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures, under this order." 6. A perusal of the order shows that the Director, District Magistrate, District Food and Supplies Officer, Assistant Food and Supplies Officer, Inspector, Food and Supplies or any other officer authorised in this behalf by the State Government has,the power of entry, search and seizure under the Haryana Kerosene Dealer Licensing Order, 1976. A perusal of the order shows that the Director, District Magistrate, District Food and Supplies Officer, Assistant Food and Supplies Officer, Inspector, Food and Supplies or any other officer authorised in this behalf by the State Government has,the power of entry, search and seizure under the Haryana Kerosene Dealer Licensing Order, 1976. Zile Singh, who is an investigator of this case has not been authorised by the State Government to effect search and seizure under the above said Order. Sub-clause 2 of the notification did not authorise the ASI to effect the search and seizure under the Order. As per this clause when an officer is to effect search and seizure, he will comply with the provisions of section 100 Cr. P.C. Similar proposition came up in Harpal Singh & Ors. v. State of Punjab 1991(3) RCR 307: [1991(1) All India Criminal Law Reporter 869 (Pb. & Hry.)] Wherein it has been held as under : "the law is well settled on the point that the provisions of the Special Act or Law will prevail upon the provisions of the general law. Moreover, it appears that the special protection has been given to the offenders indulging in the sale of light diesel or kerosene oil in contravention with the provisions of this order by empowering the Officers holding responsible post only to detect the storage of such article in view of the nature of the offence. The factum that under subclause (3) of the clause 15 of this Order the procedure under the Code of Criminal Procedure relating to search and seizure had been made applicable to searches under the Order is of no consequence since only that procedure embodied in the Code will be applicable in this matter regarding which no specific provision has been made under this clause. Thus the reading of clause 15 of the Order as a whole leaves no doubt that the inconsistent provisions of the Code of Criminal Procedure regarding the power to search etc. will not be applicable to the searches under clause 15 of the Order. Consequently, there is no escape but to conclude that only police officer not below the rank of Sub Inspector is competent to conduct such searches or seize the kerosene oil or diesel as the case may be. will not be applicable to the searches under clause 15 of the Order. Consequently, there is no escape but to conclude that only police officer not below the rank of Sub Inspector is competent to conduct such searches or seize the kerosene oil or diesel as the case may be. In the case in hand, there is no dispute that Assistant Sub Inspector Narender had organised a raiding party and effected recovery of kerosene oil during the search. In view of the mandate contained in clause 15 of the Order, the entire investigation or search conducted by the Assistant Sub Inspector stands vitiated as he was not competent to do so." 7. Similar view has been taken in Pooran Chand v. State of Punjab. 1988(1) RCR 138 8. Admittedly, in this case, the investigation has been conducted by Zile Singh ASI who was not competent to effect the search and seizure, so the entire proceedings against the appellant stood vitiated. 9. In view of the above, the appeal is accepted. The conviction and sentence is set aside. Fine, if paid be refunded to the appellant.