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2013 DIGILAW 41 (JHR)

Pramod Dubey v. State of Jharkhand

2013-01-08

R.R.PRASAD

body2013
ORDER By the Court - Earlier on 10/10/2012, time was granted to the State for filing counter-affidavit. When it was not filed, again time was given on 27/11/2012 for filing counter-affidavit. At the same time, an order was passed that if on the next date counter-affidavit is not file, the matter would be decided on the basis of the materials available on the records. In spite of that no counter-affidavit has been filed. 2. In such situation, heard the learned counsel appearing for the petitioner and the learned counsel for the State on the merit of the case. 3. This application has been filed for quashing of the order dated 09/06/20l1, passed in Sidhgora P.S. Case No. 49 of 2011 (G.R. No. 829 of 2011), whereby and where under the then Chief Judicial Magistrate, Jamshedpur, took cognizance of the offence punishable under Section 414 of the Indian Penal Code. Section 7 of the Essential Commodities Act. Section 9 (B) of the Explosive Substance Act and Sections 3, 4, 5 and 7 of L.P.G. (Regulation of Supply and Distribution) Order, 2000. 4. Learned counsel appearing for the petitioner submits that on the allegation that the petitioner was found in possession of 5 empty L.P.G. Cylinders as well as some filled up cylinders without having any kind of license a case was registered as Sidhgora P.S. Case No. 49 of 2011 (G.R No.829 of 2011) under Section 414 of the Indian Penal Code and also under Section 9(B) of the Explosive Substance Act- as well as under Section 7 of the E.C. Act for contravention of the provisions of Sections 3, 4, 5 and 7 of the L.P.G. (Regulation of Supply and Distribution) Order, 2000. On submission of the charge-sheet, cognizance of the offences as aforesaid has been taken, which is quite illegal as under L.P.G. (Regulation of Supply and Distribution) Order, 2000, the Officer of the Central Government or State Government, below the rank of Inspector of Police is not competent to make search and seizure but in this case search and seizure, has been effected by the Officer of the rank of A.S.I. and thereby, any prosecution launched for violation of the provision of the aforesaid Order, on the basis of the seizure made by the Officer, below the rank of Inspector of Police would be illegal. 5. 5. Learned counsel for the petitioner further submits that even if the petitioner has been found in possession of the empty cylinders as well as filled up cylinders the petitioner cannot be prosecuted under the Explosive Substance Act though there may be application of the provision of the Explosive Act but offence under the Explosive Act being non-cognizable one cannot lodge a case without the permission of the Court and so far the offence under Section 414. IPC is concerned it is not applicable as it has never been the case of the prosecution that the petitioner was found in possession of L.P.G. Cylinders which were stolen and under the situation the order taking cognizance become quite bad. 6. In view of the submissions one needs to take notice of the provisions as contained in Clause 13 of the L.P.G. (Regulation of Supply and Distribution) Order, 2000, which reads as follows : "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 Government Oil Company not below the rank of Sales - Officer authorised 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 the 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 too 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 authorised to secure compliance of this Order by the distributors appointed under the public distribution system and or by the consumer registered by them:- 7. (2) The sales officer of a Government Oil Company shall be authorised to secure compliance of this Order by the distributors appointed under the public distribution system and or by the consumer registered by them:- 7. On reading of the aforesaid provision it is evident that 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 Government Oil Company authorised by the Central Government, may, in order to secure the compliance of the Order, effect search and seizure. 8. Here in the instant case admittedly, search and seizure have been effected by a Officer of the rank of A.S.I. and thereby search and seizure, effected by an officer not competent under the provisions of L.P.G. (Regulation of Supply and Distribution) Order. 2000, becomes quite illegal. Consequently, the prosecution based on the basis of search and seizure which is illegal cannot be sustained, Accordingly, entire criminal case of Sidhgora P.S. Case No. 49 of 2011 (G.R. No. 829 of 2011), including the order dated 09/06/2011, taking cognizance is hereby quashed. 9. In the result, this application stands allowed. Application allowed.