Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 3204 (PNJ)

Anil Kumar v. State of Haryana

2010-12-01

M.JEYAPAUL

body2010
JUDGMENT Mr. M. Jeyapaul, J.: - Challenging the conviction recorded under Section 7 of the Essential Commodities Act, 1955 and the sentence awarded for one year each and to pay a fine of Rs.1000/- each with usual default sentence, Anil Kumar and Dinesh Kumar accused, have preferred present appeal. 2. The Assistant Sub Inspector of Police, Mr. Inder Singh examined as PW2 before the trial Court proceeded along with the Police party on receipt of secret information that the accused-appellants were bringing LPG cylinders from Najafgarh (Delhi) through a vehicle for the purpose of selling them at higher rates, stopped the vehicle bearing registration No. DL-ILE-5814 owned by the first accused Anil Kumar and driven by second accused, Dinesh Kumar and made a search of the vehicle and found that they possessed 23 LPG cylinders of Indane make. A case was registered by PW2 after the recovery of those contrabands were effected by him. 3. Believing the story of the prosecution, the trial Court has convicted both the accused and sentenced them as stated supra. 4. During the course of arguments, Mr. Ashish Yadav, learned Counsel appearing for the appellants-accused vehemently submitted in the background of the decisions rendered by the single benches of this Court, that the police authority has no power to make a search and it is only the officials of Food and Supplies Department or the officials authorised by the Government who alone could make a search under Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution ) Order,1988. 5. The submissions advanced by the learned State Counsel Mr.Sukhminder Singh Nara, was also heard by me. 6. Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 reads as follows: “7. 5. The submissions advanced by the learned State Counsel Mr.Sukhminder Singh Nara, was also heard by me. 6. Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 reads as follows: “7. Power of entry, search and seizure-(1) An Officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by the Central Government or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorised by the Central Government or a State Government and notified by the Central Government may, with a view to ensuring compliance with the provisions of this Order, for the purpose of satisfying herself that this Order or any order made thereunder has been complied with : (a) stop and search any vessel or vehicle which the Officer has reason to believe has been, or is being or is about to be used in the contravention of this Order; (b) enter or search any place with such aid or assistance as may be necessary; (c) Seize and remove, with such aid or assistance as may be necessary, the entire quantity of any stock of liquified petroleum gas in cylinders, cylinder valves and pressure, regulators, along with the vehicles, vessels or any other conveyances used in carrying such stock if he has reason to suspect that any provisions of this Order has been or is being or is about to be, contravened in respect of such stock and thereafter take or authorise the taking of all measures necessary for securing the production of the stock of liquified petroleum gas in cylinder, cylinders, gas cylinder valves, pressure regulators, vehicles, vessels or other conveyances so seized before the Collector having jurisdiction under the provisions of Section of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production; (2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this Order.” 7. This Court in Ashok Kumar V. State of Haryana 1991(2) R.C.R. (Crl.) 140, Harpal Singh and others V. State of Punjab 1991 (3) R.C.R. (Crl.) 307, Raj Kumar V. State of punjab 1994(3) R.C.R. (Crl.) 254 and Kala Devi alias Kala V. State of Haryana 1995(2) R.C.R. (Crl.) 427 has held consistently that a Police Officer not authorised and notified under Clause 11 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order,1993 which is quite similar to clause 7 of the Liquified Petroleum Gas ( Regulation of Supply and Distribution ) Order,1988, has no power to make search or seize the gas cylinders for contravention of the provisions of the said order. In some of the cases the criminal proceedings initiated against the accused were quashed and in some of the cases the accused were acquitted. 8. In Suresh Kumar V. State of Haryana 1996(2) R.C.R. (Crl.) 305 a Single Bench of this Court has held that under Clause7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order,1993 not only the power of entry, seizure and search but also the investigation of the case does not vest in the Police Officer who was not authorised by the State Government and notified by the Central Government. Having held thus, the charge against the accused was quashed. 9. Way back in the year 1964, the Hon’ble Supreme Court in Pravin Chandra Mody V. State of Andhra Pradesh AIR 1965 Supreme Court 1185, referring to the earlier decision in Bhagwati Saran V. State of U.P. AIR 1961 S.C. 928, has held that the Police Officer being a public servant fulfilling the requirement determined under Clause 11 of the Essential Supplies ( Temporary Powers ) Act, 1946 was competent to investigate a non-cognizable offence under the Essential supplies (Temporary Powers) Act, 1946 Under the Essential Commodities Act, 1955, the offence has been made cognizable. 10. A learned Single Judge of this Court in Shiv Kumar V. State of Punjab and another 2002(4) R.C.R. (Criminal ) 536 has held that the police personnel has the authority to investigate cases arising out of offence under the Essential Commodities Act, 1955. 10. A learned Single Judge of this Court in Shiv Kumar V. State of Punjab and another 2002(4) R.C.R. (Criminal ) 536 has held that the police personnel has the authority to investigate cases arising out of offence under the Essential Commodities Act, 1955. In the aforesaid case, the learned Single Judge of this Court having observed that the issue as to whether a police Officer has power to investigate the violations of the orders issued under the Essential Commodities Act, 1955, was already determined by the Hon’ble Supreme Court in Pravin Chandra Mody’s case (supra), held that it was not necessary to refer the matter to a Division Bench, though he differed from the decisions of the Single Judges referred to above. The learned Single Judge also made an observation that all the aforesaid four judgments pronounced by the learned Single Judges have been rendered without referring to the judgment of the Supreme Court and,therefore they were per incurim. 11. Inspite of the observations made by the learned Single Judge of this Court in Shiv Kumar’s case (supra) that the earlier four judgments pronounced by the Single Judges of this Court were per incurim, in the later cases in Raj Narain alias Kuka V. State of Punjab 2003(2) R.C.R. (Criminal ) 88, Karam Chand and another V. State of Haryana 2003(4) R.C.R. (Crl. ) 622, State of Haryana V. Mahiender Kumar 2004(1) R.C.R. (Crl.) 124, and State of Haryana V. Ram Niwas 2004(1) R.C.R. (Crl.) 693, the learned Single Judges of this Court have held over-looking the decision of the learned Single Judge in Shiv Kumar’s case (supra), that the police officer who was not authorised and notified under the relevant order, issued under the Essential Commodities Act, 1955 have no power of entry, search or seizure. 12. Section 11 of the Essential Commodities Act, 1955 would read that no Court shall take cognizance of any offence punishable under that Act except on a report in writing made by a person who is a public servant as defined in Section 21 of the Indian Penal Code or any person aggrieved or any recognised consumer association. 13. The Police Officer is in the service of the Government. He performs the public duty assigned to him by the Government. Therefore, a Police Officer falls squarely under the definition of public servant as defined under Section 21 of the Indian Penal Code. 13. The Police Officer is in the service of the Government. He performs the public duty assigned to him by the Government. Therefore, a Police Officer falls squarely under the definition of public servant as defined under Section 21 of the Indian Penal Code. Therefore, a Police Officer can very well submit a report in the form of charge sheet to the competent Judicial Magistrate who shall take cognizance of the offence under the Essential Commodities Act, 1955 in accordance with the provisions of Section 190 (b) of the Code of Criminal Procedure. 14. All offences under the Indian Penal Code and also under any other law, shall be investigated in accordance with the provisions of the Code of Criminal Procedure subject to any special enactment regulating the manner of investigation. The Police officer will have to adhere to the procedure if any, adumbrated under such enactment as per the provision of Section 4(2) of the Code of Criminal Procedure. It is to be noted that no special investigation procedure has been contemplated either under the Essential Commodities Act, 1955 or the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order,1988 except the provisions under Section 11 of the Essential Commodities Act, 1955 and Clause 7 of the said Order,1988. Therefore, the Police Officer is competent to investigate the cases under the Essential Commodities Act as per the scheme of the Code of Criminal Procedure. 15. In my view in order to ensure compliance with the provisions of the Liquified Petroleum, Gas (Regulation of Supply and Distribution) Order, 1988, the authorities contemplated under clause 7 have been authorised to search any vessel, vehicle or place and seize and remove the entire quantity of stock of liquified petroleum gas in cylinders. While making such a search and seizure the provisions of Section 100 Cr.P.C. will have to be adhered to by the officer authorised under the above clause. 16. On a careful perusal of clause 7 of the said Order, I find that the said provisions have been made only to enable the authority contemplated under the said provisions to go in for search and seizure, as otherwise they may not have any power to do so with a view to ensure compliance with the provisions of the said order. But the power of search and seizure under the provisions of Section 100 of the Code of Criminal Procedure vested with the police authority has not been taken away by the above clause. Only for the supervision of the compliance of the provisions of the said Order, the authorities contemplated under Clause 7 were also empowered to go in for search and seizure. The word “may” has been very cautiously employed by the legislature in its wisdom under Clause 7 of the Order. In my considered view the word “ may” has been employed with a view not to restrict the powers of the Police Officer to make search and seizure under the provisions of Section 100 of the Code of Criminal Procedure, 1973. 17. A Police officer cannot shut his eyes when a contraband is transported in a vehicle. He cannot be expected to be a mute spectator, when an offence is being committed under his very nose. In my view, the power conferred on the authorised officer or an officer of the department of Food and Civil Supplies of the Government to make a search and seizure to ensure compliance with the provisions of the said Order, does not cripple the authority of the Police Officer under Section 100 of the Code of Criminal Procedure to search and seize the article illegally concealed. 18. In view of the above, I beg to differ respectfully with the decisions rendered by the learned Single Judges of this Court in Ashok Kumar V. State of Haryana 1991(2) R.C.R. (Crl.) 140, Harpal Singh and others V. State of Punjab 1991(3) R.C.R. (Crl.) 307, Raj Kumar V. State of Punjab 1994(3) R.C.R. (Crl.) 254 and Kala Devi alias Kala V. State of Haryana 1995(2) R.C.R. (Crl.) 427 and Raj Narain alias Kuka V. State of Punjab 2003(2) R.C.R. (Criminal )88, Karam Chand and another V. State of Haryana 2003(4) R.C.R. (Crl. ) 622, State of Haryana V. Mahiender Kumar 2004(1) R.C.R. (Crl.) 124, and State of Haryana V. Ram Niwas 2004(1) R.C.R. (Crl.) 693, and concur with the view expressed by learned Single Judge in Shiv Kumar’s case (supra) . 19. ) 622, State of Haryana V. Mahiender Kumar 2004(1) R.C.R. (Crl.) 124, and State of Haryana V. Ram Niwas 2004(1) R.C.R. (Crl.) 693, and concur with the view expressed by learned Single Judge in Shiv Kumar’s case (supra) . 19. in the above facts and circumstances, the material issue that arises for determination is “whether the old provision under Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 and the new provision under clause 11 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 take away the power of the Station House Officer, to make a search and seize the liquified petroleum gas cylinders”, As the aforesaid material issue will have to be decided in this matter by an appropriate Bench, the Registry is directed to place this matter before Hon’ble the Chief Justice for necessary orders. ----------0.N.K.0---------