Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 833 (PNJ)

Shiv Kumar v. State Of Punjab

2002-08-22

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This petition seeks quashing of FIR No. 72 dated 9.5.2000, under Section 7 of the Essential Commodities Act, 1955 (for short, 1955 Act) Police Station Hoshiarpur. 2. The FIR was recorded on the statement of Kuldip Singh son of Sadhu Singh alleging that he went to Hoshiarpur Gas Agency for getting a new connection, where Shiv Kumar accused asked the complainant to pay a sum of Rs. 3010/- for supply of two gas cylinders and one regulator, while the rate for the said items was Rs. 2600/-. On the basis of the said statement recorded by Jaspal Singh, SI/SHO, FIR in question was recorded and a case was registered against the petitioner. 3. Learned counsel for the petitioner submitted that the police has no power of entry, search or seizure, which was exclusively vested in para 11 of the LPG (Regulation of Supply and Distribution) Order, 1993 (for short, 1993 Order). 4. Notice of motion was issued to the State and the complainant. 5. Learned counsel for the State submitted that the 1993 Order had been replaced by LPG (Regulation of Supply and Distribution) Order, 2000 (for short, 2000 Order) published in Gazette dated 26.4.2000 and it was this order which was applicable on the date of offence. 6. Learned counsel for the petitioner submitted that his contention still remains the same, as under para 13 of the 2000 Order, power of entry, search and seizure was conferred on officers mentioned therein and the same provision being a special provision over-rides the general provision in the Code of Criminal Procedure (for short, the Code). Reliance was placed on a judgment of this Court in Suresh Kumar v. State of Haryana, 1996(2) RCR 365. Alternatively, it was submitted that even if, power of investigation was with the police, power of search and seizure could be exercised only by officers mentioned in para 13 of the 2000 Order. 7. Learned counsel for the State submitted that Sections 4, 5 read with Chapter XII of the Code relating to investigation clearly showed that the investigation had to be conducted by the police, as no special provision was enacted for that purpose. 7. Learned counsel for the State submitted that Sections 4, 5 read with Chapter XII of the Code relating to investigation clearly showed that the investigation had to be conducted by the police, as no special provision was enacted for that purpose. Reference was also made to Section 10A of 1955 Act, which made an offence under the said Act to be cognizable; Section 10AA of 1955 Act, which debarred an officer below the rank of officer incharge of police station or any police officer authorised by him in the behalf in writing for arresting a person for committing the offence punishable under this Act; Section 12AA(1)(e) of 1955 Act, which permits the Court to take cognizance of an offence inter alia on perusal of a police report; Section 7 of 1955 Act makes contravention of any order issued under section 3 of 1955 Act to be punishable. 2000 Order has been issued under Section 3 of 1955 Act. The offence being cognizable, Chapter XII of the Code was clearly applicable and para 13 of 2000 Order could not be taken to exclude powers of the investigating agency under Chapter XII of the Code. Neither expressly nor impliedly, powers of the investigating agency were in no manner affected. Para 13(1) of 2000 Order is as under :- "13. Power of entry, search and seizure. - (1) Any Officer of the Central or the State Government not below the rank of Inspector duly authorised by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of a Government Oil Company not below the rank of Sales Officer, authorised by the Central Government, may, with a view to securing the compliance of this Order or any other order made thereunder : (a) stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product, (b) enter and search any place, (c) seize stocks of liquefied petroleum gas along with container and/or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made." 8. A perusal of the above shows that power given to the officers mentioned is not for the purpose of investigation under Chapter XII of the Code, but "with a view to securing compliance of this order". 9. I have considered the matter. Indeed, the judgment in Suresh Kumars case (supra) helps the petitioner when it lays down that Clause 7 of the 1993 Order (Clause 11 in the present case) do not vest, in Sub Inspector of police, the power of entry, search, seizure and investigation. As observed earlier, Clause 11 of the 1993 Order or Clause 13 of the 2000 Order does not refer to power of investigation at all and therefore, the said provision could not be said to be a special provision with regard to investigation. A Division Bench of Andhra High Court in Malepati Narayana and another v. Station House Officer, Badvel, AIR 1971 Andhra Pradesh 29, held that the Police had power to investigate an offence under the Essential Commodities Act, 1955 comprising of violation of control order issued under Section 3 i.e. Andhra Pradesh Kerosene (Licensing and Distribution) Order, 1965, irrespective of para 11 of the said control order, which gave powers to officers other than police officers. The control order considered in the said case contained a provision similar to Clause 13 reproduced above. The said view is based on Supreme Court judgment in Pravin Chandra Mody v. State of Andhra Pradesh, AIR 1965 SC 1185. Since the matter is covered by the Supreme Court judgment and statutory provisions, which were not brought to the notice of the learned Single Judge, it is not necessary to refer the matter to a Division Bench. It may also be mentioned that the learned Single Judge has referred to earlier Single Bench judgments in Ashok Kumar v. State of Haryana, 1991(2) Recent Criminal Reports 140; Harpal Singh and others v. State of Punjab, 1991(3) RCR(Crl.) 307 (P&H) : 1991(2) Chandigarh Law Reporter 71; Raj Kumar v. State of Punjab, 1994(3) RCR(Crl.) 254 (P&H) : 1994(2) Chandigarh Law Reporter 24 and Kala Devi alias Kala v. State of Haryana, 1995(2) Recent Criminal Reports 427. All the four said judgments have been rendered without referring to the judgment of the Supreme Court and are, thus, per incurim. All the four said judgments have been rendered without referring to the judgment of the Supreme Court and are, thus, per incurim. If a judgment is rendered without reference to the Supreme Court judgment in Pravin Chandra Modys case (supra), it is not necessary to refer the matter to a Division Bench. Reference may also be made to a judgment of the Supreme Court in Nilratan Sircar v. Lakshmi Narayan Ram Niwas, AIR 1965 SC 1, which has also been referred to by the learned Single Judge, which related to a case under Foreign Exchange Regulation Act, 1947, whereunder a separate procedure for investigation was laid down under Section 19-A and ratio of the said case could not be apply to a case under the 1955 Act, whereunder special procedure has been laid down for investigation. For the above reasons, I find no merit in this petition and the same is dismissed.