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2003 DIGILAW 495 (JHR)

Ram Chandra Sao v. State of Bihar

2003-04-17

AMARESHWAR SAHAY

body2003
JUDGMENT : Amareshwar Sahay, J.-In this application the petitioner has prayed for quashing of the entire criminal proceeding in connection with Dhanbad (Bank more) P.S. case no. 335 of 1999 corresponding to G.R. case no. 1583 of 1999 and also prayed for stay of the proceeding of the said case. 2. The facts in short of the case are that the First Information Report being Dhanbad (Bankmore) P.S. case no. 335 of 1999 was registered by the police under Section 7 of the E.C. Act against the petitioner and others. 3. It is alleged in the First Information Report that on 31.5.1999 the informant, received information, that in the premises of the petitioner, namely, Ram Chandra Sao, at Matkuria, illegal trade of theft and adulteration of diesel from 2-3 tankers were going on. On this information the informant along with others officials raided the premises of the petitioner and found that three tankers having registration no. BR17A-8463, BHQ-5561 and BPW-7270 were parked there. It is alleged that Kamal Turi, driver of BHQ-5561 and Laxman Turi, Khalasi thereof were interrogated who stated that on 28.5.1999 they have loaded 12,000 liters diesel from Rajbandh (West Bengal) from the depot of Mis. Indian Oil Corporation Limited and reached at Dhanbad on 29.5.1999 but Dhanbad Depot of M/s. Indian Oil Corporation Limited gave challan for going to Ashoka Auto Service, Jaina More (Giridih) on 31.5.1999 in the evening. It is said that the seals of the said tankers were found intact. It is further alleged that one Dasrath Singh, driver of tanker of BR-17 A-8463 was interrogated who stated that he loaded 12,000 liters diesel on 28.5.1999 from Rajbandh (West Bengal) and reached Dhanbad on 29.5.1999 but by the Dhanbad Depot of M/s. Indian Oil Corporation given challan for delivery of the said diesel at ropeway M/s. Bharat Coking Coal Limited, Patherdih on 31.5.1999 in the evening. It is said that although the said tanker should have left for Patherdih but it was found in the premises of Ram Chandra Sao situated in the opposite direction. It is further alleged that on measuring by applying deep rod method, 297 liters diesel was found excess than 12,000 liters. It is said that although the said tanker should have left for Patherdih but it was found in the premises of Ram Chandra Sao situated in the opposite direction. It is further alleged that on measuring by applying deep rod method, 297 liters diesel was found excess than 12,000 liters. It is further alleged that from the statements of Driver and Khalashi of the Tankers, it appeared that the petitioner, in conspiracy and in connivance with the owner, Driver and Khalashi of the said Tankers, got the vehicle parked in his premises for the purpose of committing theft of diesel and adultering the same and for sale of the diesel in black-market. It is said that the accused persons were involved in the said crime since last so many months. It is also alleged that Tanker no. B.P.W. 7270 was found empty but in the premises articles were found which could be used for making theft of diesel and adulteration for the purpose of black marketing and profiteering. Therefore, it is concluded that the accused persons have violated the provisions of Motor Spirit and High Speed Diesel (Prevention of Malapractices in Supply and Distribution) Order, 1990 and therefore, seized the said three tankers with diesel and other articles found in the premises. 4. The action of the accused persons was in violation of relevant clause of Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990. 5. The raiding party searched the premises of the petitioner, and seized three Tankers as well as diesel loaded thereon and prepared seizure list. The First Information Report as well as the seizure list have been annexed as Annexure 1 to this application. 6. Mr. M. M. Banerjee learned counsel for the petitioner submitted that the Essential Commodities (Special Provision) Act, 1981 came into force with effect from 1.9.1982 and after expiry of 15 years, it came to an end on 19.9.1997. The First Information Report as well as the seizure list have been annexed as Annexure 1 to this application. 6. Mr. M. M. Banerjee learned counsel for the petitioner submitted that the Essential Commodities (Special Provision) Act, 1981 came into force with effect from 1.9.1982 and after expiry of 15 years, it came to an end on 19.9.1997. It is stated that from time to time ordinance was issued and the last ordinance was issued being the Essential Commodities Amendment Ordinance, 1998 (13/98) which came into effect on 25.4.1998 and expired after a period of six months and as such from 25.10.1998 the Essential Commodities (Special Provision) Act ceased to have any effect, and thus the learned Special Judge, E.C.Act had no jurisdiction to entertain cases under the E.C. Act and consequently no warrant of arrest and processes could have issued by the Special Judge E.C.Act, Dhanbad. 7. The learned counsel for the petitioner has secondly submitted that the prosecution has been launched for violation of the provision of Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990 and under Clause 7 of the said order, search and seizure can only be made by an officer of the State Government, not below the rank of an Inspector, in the department of Food and Civil Supplies, duly authorized and notified in the official gazette by such State Government, or any officer of an Oil Company not below the rank of Sales Officer. It is submitted that in exercise of power conferred under Sub-Clause (1) of Clause-7 of the Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990, the State Government by a notification dated 3rd April, 1991 authorized several officers including Marketing Officer to exercise power of search and seizure under the provision of the aforesaid order within local area of their respective jurisdiction. 8. It is submitted that in the year 1998 vide G.S.R. 772(E) dated 28.1.1998 in exercise of powers conferred by Section-3 of the Essential Commodities Act, 1955, the Central Government repealed the Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990 by a new order i.e. Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998. The power of search and seizure has been provided under Clause-3 of the said order of 1998, which envisages that the power of search and seizure can only be exercised by any gazetted officer of the Central Government or the State Government or any Police Officer not below the rank of the Dy. Superintendent of Police (D.S.P.) duly authorized by general or special order by the Central Government or the State Government as the case may be or any officer of the concerned Oil Company not below the rank of Sales Officer. It is submitted that no fresh notification has been issued by the State Government under Sub-Clause-1 of Clause-4 of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 authorizing any officer to have power of search and seizure and therefore, search and seizure made by the Marketing Officer, Dhanbad in the pres6nt case on 1.6.1999 is illegal having without jurisdiction. 9. On the other hand, Mr. S. N. Rajgarhia, learned A.P.P. has submitted that since the Marketing Officer was authorized by notification dated 3rd April, 1991 to make search and seizure under the old Provision of the Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990 and even if no fresh notification has been issued under new order i.e. Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 it would be deemed that a person who was authorized under the notification dated 3rd April, 1991 shall continue to hold power of search and seizure under the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998. 10. Relying on the decision of the State of Punjab vs. Harnek Singh reported in A.I.R. 2002 S.C. 1074, Mr. Rajgarhia submitted that in view of the provision of Section-6 of General Clause Act, action taken under the old provision of the Motor Spirit and High Speed Diesel (Prevention of Mal Practices in Supply and Distribution) Order, 1990 is saved under the saving provision of re-enacted Motor spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998. In this connection, the learned A.P.P. has further relied on the decision reported in 1992(1) P.L.J.R. 1, 1985 P.L.J.R. 1110 and 1987 P.L.J.R. 842. 11. In this connection, the learned A.P.P. has further relied on the decision reported in 1992(1) P.L.J.R. 1, 1985 P.L.J.R. 1110 and 1987 P.L.J.R. 842. 11. Mr. Rajgarhia has further relied an unreported decision in Rajendra Kumar Jhunjhunwala and another vs. State of Bihar and others in Cr.W.J.C. nos. 24 and " 25 of 1991 R decided on 1.7.1997 by a Division Bench of Ranchi Bench of the Patna High Court. 12. So far as the first submission of the learned counsel for the petitioner is concerned, the decision of the Supreme Court in State of Tamil Nadu vs. Parmasiva Pandian reported in A.I.R. 2001 S.C. 2972 is the complete answer to the said submission, wherein, while dealing with the case under the Essential Commodities (Special Provision) Act, 1981, the Supreme Court has held that on a fair reading of the provisions of the Essential Commodities Act and Essential Commodities (Special Provisions) Act, 1981, it is clear that during the period of E.C. (Special Provision) Act was in force the special court constituted for trial of offence under Essential Commodities Act (E.C. Act) had exclusively jurisdiction to try such cases. But the position changed after the Essential Commodities (Special Provision) Act lapsed by efflux of time. Thereafter the position that used to prevail before the Essential Commodities (Special Provision) Act was enforced, stood restored and Judicial Magistrates who were previously competent to try the E.C. Act. Cases got the jurisdiction to deal with such cases. 13. In view of the aforesaid decision of the Supreme Court, the first submission of the learned counsel for the petitioner cannot be accepted and, therefore, it cannot be said that the criminal prosecution against the petitioner is liable to be quashed on this ground. 14. Cases got the jurisdiction to deal with such cases. 13. In view of the aforesaid decision of the Supreme Court, the first submission of the learned counsel for the petitioner cannot be accepted and, therefore, it cannot be said that the criminal prosecution against the petitioner is liable to be quashed on this ground. 14. So far as the second submission of the petitioner and the reply by the State, in my view the submission of the petitioner as well as the reply by the State are redundant in view of the notification i.e. G.S.R.-1 published in the Bihar Gazette (Extraordinary) issued on 14th January, 2000, by the State government in exercise of power under section 4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 authorizing the Marketing Officer and other officers mentioned in the said notification to make search and seizure under the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 which is quoted hereinbelow ;- G.S.R.-1, dated 14th January, 2000-In exercise of the powers conferred under Section-4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 published by the Government of India, Ministry of Petroleum and Natural Gas vide Notification No. 722 (E), dated the 28th December, 1998 under section-3 of the Essential Commodities Act, 1995(10 of 1955), the Governor of Bihar is pleased to authorize the following officers of the State Government to exercise the powers of entry, Search and Seizure of any place and premises of Motor spirit and High Speed Diesel: under the provisions of the Section-4 ,of the aforesaid order within the local area of their jurisdiction. In context of the aforesaid order the G.S.R.-3 dated 3rd April, 1991 of Food Supply and Commerce Department, Bihar, Patna is hereby repealed. (1) Licensing Authority. (2) Food Commissioner-cum-Secretary, Food, Supply and Commerce Department, Bihar Patna. (3) Deputy Inspector General of Police (Economic Offences). (4) District Magistrate. (5) Sub-divisional Officer. (6) Special Officer-in-charge, Rationing, Patna, Jamshedpur, Dhanbad, Ranchi. (7) Superintendent of Police and any Police Officer not below the rank of Deputy Superintendent of Police. (8) Deputy Director, Food and Civil Supply. (9) Deputy Superintendent of Police (Food) (10) District Supply Officer. (3) Deputy Inspector General of Police (Economic Offences). (4) District Magistrate. (5) Sub-divisional Officer. (6) Special Officer-in-charge, Rationing, Patna, Jamshedpur, Dhanbad, Ranchi. (7) Superintendent of Police and any Police Officer not below the rank of Deputy Superintendent of Police. (8) Deputy Director, Food and Civil Supply. (9) Deputy Superintendent of Police (Food) (10) District Supply Officer. (11) Assistant District Supply Officer• (12) Secretary to Food Commissioner, Food, Supply and Commerce Department. (13) Deputy Rationing Officer. (14) Assistant Rationing Officer. (15) Magistrate In charge, flying Squard, Food, Supply and Commerce Department, Bihar, Patna. (16) Marketing Officer. (17) Block Supply Officer. (Pra-9-A2-01/99) By order of the Governor of Bihar. (Sd. )/lllegible. Deputy Secretary to Government. 15. In view of the above notification, it cannot be said that search and seizure made by the marketing Officer in the present case was illegal having without jurisdiction. 16. The decision rendered in Cr.W.J.C. nos. 24 and 25 of 1991 R by a Division Bench of Ranchi Bench of the Patna High Court in the case of Rajendra Kumar Jhunjhunwala and Anr. vs. State of Bihar, has held after considering the various decisions of the High Court and Supreme Court that in any view of the matter, only because of the fact that the authority who made search and seizure, the entire criminal prosecution cannot be quashed on that ground alone. 17. In this view of the matter I find that there is no merit in this application. It is accordingly dismissed.