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2014 DIGILAW 1074 (RAJ)

Jangir Singh v. State of Rajasthan

2014-05-01

VIJAY BISHNOI

body2014
Hon'ble BISHNOI, J.—This Criminal Revision Petition under Section 397/401 Cr.P.C. has been filed against the order dated 31.07.2012, passed by the learned Sessions Judge, Sri Ganganagar (hereinafter referred to as the 'appellate Court'), whereby the appeal preferred by the petitioners was partly allowed. The petitioners have also challenged the order dated 4.6.2012 passed by the District Collector, Sri Ganganagar (for short 'the District Collector' hereinafter) in Case No.39/2012 under Section 6-A of the Essential Commodities Act, 1955 (for short 'Act of 1955' hereinafter), whereby the District Collector ordered for confiscation of 1073 liters of diesel seized by the staff of the Food and Supplies Department at Sri Ganganagar from the petitioners and further ordered that if the petitioners deposit a sum of Rs.43,050/- as penalty, the tractor and trolley in question shall be returned back to them and if they fail to do so, the tractor and trolley shall be confiscated. 2. Brief facts of the case are that the staff of the District Food and Supplies Department has intercepted the tractor trolley driven by the petitioners and found five drums of diesel in it. The case of the prosecution is that on asking from the petitioners, they informed that they bought this diesel from the petrol-pump situated in State of Punjab. The prosecution has, therefore, found that the petitioners are transporting diesel in contravention of Clause 15 of the Rajasthan Petrol-Pump Products (Lic. and Control) Order, 1990 (for short the Order, 1990 hereinafter) and in contravention of Section 2(F)(ii) & (q), 3(6) of the Motor Spirit and High Speed Diesel (Regulation of Supplies, Distribution and Prevention of Malpractices) Order, 2005 (for short 'the Order, 2005' hereinafter). 3. On the said complaint, preferred by the Officer of the Food and Supplies Department, the District Collector passed the order dated 4.6.2012, while exercising powers under Section 6-A of the Act of 1955. 4. Being aggrieved with the order dated 4.6.2012, the petitioners preferred an appeal before the appellate Court, however, the appellate Court, while partly allowing the said appeal, has set aside the order of confiscation of tractor and trolley however, the order of confiscation of seizing of 1073 liters of diesel has been maintained. 5. 4. Being aggrieved with the order dated 4.6.2012, the petitioners preferred an appeal before the appellate Court, however, the appellate Court, while partly allowing the said appeal, has set aside the order of confiscation of tractor and trolley however, the order of confiscation of seizing of 1073 liters of diesel has been maintained. 5. The learned counsel for the petitioners, while assailing the validity of the impugned orders, has argued that as per the authorization issued by the State Government while exercising powers under Clause 7 of the Order, 2005, only the District Supply Officers and Addl. District Supply Officers of the Food, Civil Supplies and Consumer Affairs Department, all Executive Magistrate posted in Districts not below the rank of Tehsildars and all Police Officers posted in District not below the rank of Deputy Superintendent of Police can conduct a search and seizure of any petroleum product. 6. The learned counsel for the petitioners has contended that in the present case, the diesel was seized by the Enforcement Officer of the District Food and Supplies Department and the said Officer was not authorized to do so, therefore, the whole proceedings of search and seizure conducted by him are void ab initio. On the basis of the aforesaid contentions, the counsel for the petitioners has submitted that the impugned orders passed by the Courts below are quashed and set aside. 7. It is further contended that as per the prosecution story, the petitioners were found only transporting five drums of diesel and the transportation of the said diesel does not come within the definition of storage. It is contended that transporting of the commodity in the tractor trolley in excising of the term 'limit' would not amount to storage within the meaning of clause 3 of the Act of 1955 and therefore, for this reason, also the impugned orders are liable to be quashed and set aside. In support of the above arguments, the learned counsel for the petitioners has placed reliance on a decision of Hon'ble Supreme Court in Bijaya Kumar Agarwala vs. State of Orissa, (1996) 5 SCC 1 . 8. In support of the above arguments, the learned counsel for the petitioners has placed reliance on a decision of Hon'ble Supreme Court in Bijaya Kumar Agarwala vs. State of Orissa, (1996) 5 SCC 1 . 8. Per contra, the learned Public Prosecutor has argued that there is no illegality in the orders passed by the Courts below because the petitioners were found transporting the diesel in contravention of the provisions of Order, 1990 and the Order, 2005 and therefore, the learned District Collector as well as the appellate Court have not committed any illegality in passing the impugned orders. 9. Heard learned counsel for the rival parties, perused the impugned order and carefully scanned through the material available on record. 10. The Notification dated 10.4.2006 issued by the State Government, while exercising powers conferred by Clause 7 of the Order, 2005 reads as under: "Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, issued by the Government of India in the Ministry of Petroleum and Natural Gas vide GSR 729(E) dt. 19.12.2005, the State Government hereby authorize all District Supply Officers and Addl. District Supply Officers of the Food, Civil Supplies and Consumer Affairs Department, all Executive Magistrate posted in Districts not below the rank of Tehsildar and all Police Officers posted in District not below the rank of Deputy Superintendent of Police to exercise the powers of search and seizure as provided under the said clause to secure compliance of the provisions of the said order, in their respective jurisdiction." As per above Notification, District Supply Officers and Additional District Supply Officers of the Food, Civil Supplies and Consumer Affairs Department, all Executive Magistrate posted in Districts not below the rank of Tehsildars and all Police Officers posted in District not below the rank of Deputy Superintendent of Police are authorized to search and seizure as provided under the provisions of the said order. 11. In the present case, it is an admitted position that 1073 liters of diesel was seized from the petitioners by the Enforcement Inspector of Ganganagar District Supply Officers of the Food, Civil Supplies and Consumer Affairs Department. Admittedly, the said Officer was not authorized to conduct search and seizure as per the above Notification. 12. 11. In the present case, it is an admitted position that 1073 liters of diesel was seized from the petitioners by the Enforcement Inspector of Ganganagar District Supply Officers of the Food, Civil Supplies and Consumer Affairs Department. Admittedly, the said Officer was not authorized to conduct search and seizure as per the above Notification. 12. As per the prosecution case, the petitioners were found transporting 1073 liters of diesel in Ganganagar, which they bought from the Punjab, however, there was no evidence that the petitioners have stored the said diesel. The Hon'ble Supreme Court in Bijaya Kumar Agarwala vs. State of Orissa (supra), while taking into consideration the provisions of clause 3(2)(d) of the Act of 1955 has held as under: "The dictionary meanings suggest that 'storing' has an element of continuity as the purpose is to keep the commodity in store and retrieve it at some future date, even within a few days. If goods are kept or stocked in a warehouse, it can be immediately described as an act of 'storage'. A vehicle can also be used as a store house. But, whether in a particular case, a vehicle was used as a 'store' or whether a person had stored his merchandise in a vehicle would be a matter of fact in each case. Carrying goods in a vehicle cannot per se be 'storing' although it may be quite possible that a vehicle is used as a store. Transporting is not storing. Section 3(2)(d) of the Act extracted earlier in the judgment uses the expressions 'storage' and 'transport' as two separate acts which could be regulated by licences, permits or otherwise. The Order could as well prohibit transporting of large quantities of rice or paddy within the Section 3 of the Act. Was it the intention of the framers of the Order to prohibit 'transport' Per se? Unless the facts in a particular case reveal that the vehicle was used not merely for transporting the goods but also for 'storing' as understood in the English language or even in common parlance, it is difficult to hold in the affirmative." 13. In the present case, the prosecution has failed to adduce any evidence to the effect that the truck and trolley driven by the petitioners was used for the purpose of storage of 1073 liters of diesel. 14. In the present case, the prosecution has failed to adduce any evidence to the effect that the truck and trolley driven by the petitioners was used for the purpose of storage of 1073 liters of diesel. 14. In such circumstances, I find that the learned court below has illegally held the petitioners guilty for storage of 1073 liters of diesel. As observed earlier, the search and seizure was conducted by a person, who was not authorized to do so as per the Notification issued by the State Government. 15. Hence, this revision petition is allowed. The impugned orders passed by the Courts below are hereby quashed and set aside. 16. Record be returned back forthwith.