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2012 DIGILAW 166 (PAT)

Barun Kumar Singh v. Abhishekh Raj

2012-01-27

ADITYA KUMAR TRIVEDI

body2012
ORAL JUDGMENT Per Aditya Kumar Trivedi, J.-Both the Criminal Writs originate from same P.S. Case bearing Mokama P.S. No. 129/05. As such with the consent of the parties the same have been heard together and are being disposed of by a common order. 2. In Cr.W.J.C. No. 764/2005, Barun Kumar Singh happens to be the petitioner while in Cr.W.J.C 980/2010, Abhishek Raj and Jodhi Sah, happen to be the petitioners and in both Cr. Writs there has been common prayer for quashing of the FIR of Mokama P.S. Case No. 129/2005 registered under Sections 420, 467, 468, 471/34 of the IPC and 7 of the E.C. Act. 3. The brief fact of the case as is evident from the First Information Report lodged by Chandrashekhar Kumar Sinha, Inspector, O/C of Mokama P.S. recorded 3.10.2005 disclosing therein that he received confidential Information with regard to black-marketing of LPG by a Gas Agency located at Barahiya and for that purpose had parked the vehicle near Britannia gate. Accordingly, raid was conducted. One hundred LPG cylinders were found over the truck out of which 38 was empty while 62 was filled up. It has further been disclosed that on query the driver has disclosed that he had already supplied 38 gas cylinders to the consumers but no document was filed. Accordingly, the matter was reported to the SDM, Barh before whom proper receipts were filed but the same appear to be fake one therefore as per direction instant case has been registered. 4. It has been contended on behalf of the petitioner that to facilitate smooth delivery of LPG cylinders to its consumers the gas was being transported. Further submitted that from the First Information Report itself, it is evident that none had complained regarding black-marketing. Then, it has been submitted that informant was not at all competent to conduct raid as per Notification issued by the Government and Circulated vide Memo No. 2021 dated 28.7.2005. So submitted that in the aforesaid fact and circumstances of the case, the search and seizure have been made in contravention of the Notification referred above. Consequent thereupon, the registration of the case followed with investigation is liable for quashing. 5. On the other hand, learned AC to GA-8 has resisted the submission raised on behalf of the petitioners arid submitted that the license for transacting and disbursement of LPG cylinders were only confined to Barahiya. Consequent thereupon, the registration of the case followed with investigation is liable for quashing. 5. On the other hand, learned AC to GA-8 has resisted the submission raised on behalf of the petitioners arid submitted that the license for transacting and disbursement of LPG cylinders were only confined to Barahiya. Therefore presence of truck having laden with LPG cylinder at Mokama is indicative of the fact that same was taken to that place for the purpose of black-marketing. Therefore, rightly petitioners of both the Cr. Writs were booked. 6. Also submitted that investigation is going on, therefore, for the present petitioners have got no legal ground to raise the plea more, particularly, for quashing of FIR followed with investigation. 7. There happens to be LPG (Regulation, Supply and Distribution) Order, 2000 issued in terms Section 3 of Essential Commodities Act, 1955 by the Central Government over affairs of regulating LPG gas prescribing different provisions putting the obligation upon the retailers. Rule-13 thereof prescribes power of entry, search and seizure. For better appreciation the same is incorporated hereunder :- 13. Power of entry, search and seizure.-(1) Any officer of the Central or the State Government not below the rank of Inspector duly authorized 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, authorized by the Central Government, may, with a view to securing due 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 alongwith 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. (2) The sales officer of a Government oil company shall be authorized to secure compliance of this Order by the distributor appointed under the public distribution system and/or by the consumer registered by them. 8. (2) The sales officer of a Government oil company shall be authorized to secure compliance of this Order by the distributor appointed under the public distribution system and/or by the consumer registered by them. 8. After going through the aforesaid Rule, it is evident that Inspector and officials above in rank as inspector have been authorized to make search and seizure under the aforesaid Rules. It has not clearly defined the status of the Inspector whether it to be the Police Inspector, the Food Inspector. Supply Inspector or Inspector of any other Department. Therefore, the anomaly on this score, prevailed. The aforesaid anomaly has been perceived by the Government and in the aforesaid background vide Memo No. 2021 dated 28.7.2005 the following officials have been identified who have been vested with the power so prescribed under Rule-13 and those are :- 1. All Divisional Commissioner 2. Deputy Inspector General (Food) 3. All District Magistrate 4. Special Officer, District Supply Officer, Patna 5. All Additional Collectors 6. All Additional District Magistrates 7. All Divisional Deputy Directors (Food) 8. Superintendent of Police (Food) 9. All Sub-divisional Magistrates 10. All Deputy Superintendent of Police (Food) 11. All District Supply Officers 12. I/C Magistrate (flying squad) Food Supply & Commercial Department, Bihar, Patna 13. All Executive Magistrates 14. All Assistant District Supply Officers 15. Deputy Supply Officer, Patna 16. Assistant Supply Officer, Patna 17. All Block Development Officer/Circle Officer 18. All Marketing Officer 19. All Block Supply Officer 20. Superintendent Inspector (Food) 21. All Supply Inspector 9. After going through the aforesaid Notification. it is evident that Inspector of Police has not been authorized in accordance with Rule-I3 of the aforesaid Rule that means to say the search and seizure made by the informant who happens to be the Inspector of Police and was presently posted as Officer-In- charge of Mokama P.S. was not at all competent to exercise powers in seizing the LPG gas cylinders in accordance with LPG (Regulation, Supply and Distribution) Order, 2000. 10. In the aforesaid background, the whole process adopted and followed by the informant appears to be in nullity in the eye of law because of the fact that informant was not at all vested with the power to make search and seizure. 11. 10. In the aforesaid background, the whole process adopted and followed by the informant appears to be in nullity in the eye of law because of the fact that informant was not at all vested with the power to make search and seizure. 11. In the aforesaid facts and circumstances of the case, as well as taking into account totality of the event, it is crystal clear that the steps taken by the informant in his capacity as an Inspector of Police while searching and seizing the LPG cylinders was in utter violation of law and so being the position, its offshoot should attract similar finding. 12. As such, the FIR of Mokama P.S. Case No. 129/2005 followed with its investigation is quashed. Consequent thereupon, both the writ petitions are allowed. Petition allowed.