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Jharkhand High Court · body

2015 DIGILAW 1212 (JHR)

Ajay Kumar Singh v. State of Jharkhand

2015-10-01

RAVI NATH VERMA

body2015
Order : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of the first information report bearing Kotwali P.S. Case no. 311 of 2008 corresponding to G.R. Case no. 1736 of 2008, which was lodged against the petitioner for the offence under Section 7 of the Essential Commodities Act and L.P.G. (Regulation of Supply and Distribution) Order, 2000 (in short “the Order, 2000”). 2. On the basis of a written report of the Marketing Officer, Supply, Ranchi, the aforesaid case was instituted on 06.05.2008 with the allegation that on the said date at about 10:55 a.m., a search was conducted in the premises of New Mansi, Sahid Chowk, Ranchi from where two pieces of 14.2 kg. capacity L.P.G. empty cylinders of IOC Company, 13 pieces of 2 Kg. capacity empty cylinders of Surya Company., 25 pieces of 5 Kg. capacity empty cylinders of Surya Company were recovered and it was suspected that those cylinders were kept for refilling small cylinders from big cylinders with intention to earn more money. 3. Mr. Nilesh Kumar, learned counsel for the petitioner confined his submission on a solitary question that the search and seizure were made in contravention of Clause 13 of the Order, 2000 and the entire cylinders either big or small were found empty and even no filled gas cylinder and no refilling apparatus like nozal or pipe were seized by the informant. It was also submitted that the petitioner is a bonafide consumer of Indian Oil Corporation and he was authorized supplier of the small cylinders of Surya Gases Pvt. Ltd. Co., Madhya Pradesh and that the informant Marketing Officer, Supply, Ranchi was not authorized to make any search in the premises of the petitioner rather from the order of Additional Collector (Law and Order), Ranchi dated 05.05.2008 enclosed with the written report, it would appear that only a list of hotels were provided to the said Marketing Officer where the search was to be made and not in premise of this petitioner. Learned counsel in support of his contention relied on the cases Roy V.D. Vs. State of Kerala; (2000) 8 SCC 590 and Gurdayal Singh Bhatia @ Gurdayal Singh; 2007(2) East Cr. C. 91 (Jhr.). 4. From the record, it appears that no counter affidavit has been filed by the State authority. Learned counsel in support of his contention relied on the cases Roy V.D. Vs. State of Kerala; (2000) 8 SCC 590 and Gurdayal Singh Bhatia @ Gurdayal Singh; 2007(2) East Cr. C. 91 (Jhr.). 4. From the record, it appears that no counter affidavit has been filed by the State authority. The learned counsel representing the State merely submitted that the said Marketing Officer was authorized by the Additional Collector (Law and Order), Ranchi to make search and seizure. 5. In the instant case, though the Marketing Officer, the informant, had entered into the premise of the petitioner for making search and seizure but he was not authorized by the letter issued by the Additional Collector (Law and Order), enclosed with the written report as he was authorized only to make search in different hotels the list of which was provided to the informant. 6. Before I enter into the submissions of the learned counsel for the petitioner, a reference of Clause 13 of the Order, 2000 is necessary for the proper adjudication of the issue involved in this case, which reads as follows : “Clause 13 .- (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 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 along with 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 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 authorized to secure compliance of this Order by the distributors appointed under the public distribution system and or by the consumer registered by them.” 7. From bare reading of the aforesaid provision, it appears that any officer duly authorized by a general or special order, by the Central Government or the State Government or any officer of Government Oil Company not below the rank of Sales Officer were only authorized to make search and seizure. However, in the instant case, the Marketing Officer was not duly authorized as provided under clause 13 of the Order, 2000. Hence, the prosecution launched on the basis of the search and seizure by a person not authorized under the law and in contravention of provision of law cannot sustain. The Hon’ble Supreme Court in Roy V.D. (supra) observed as follows : “The power under Section 482 Cr.P.C. has to be exercised by the High Court, inter alia to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Where Criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the Court; in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. So, exercise of power under Section 482 Cr.P.C. to quash proceedings in a case like one in hand, would indeed secure the ends of justice.” A similar issue was raised in Gurdayal Singh Bhatia (supra) in which this Hon’ble Court in paragraph 6 held as follows:- “I find substance that Clause 13 of L.P.G. (Regulation of Supply and Distribution) Order, 2000 is very specific and clear that the authority delegated to the opposite party no.2 by the Deputy Commissioner was not an authority delegated either by the Central Government or the State Government to conduct raid or to make certain seizure. The Deputy Commissioner is not the State Government under the Rules of executive business.” 8. The Deputy Commissioner is not the State Government under the Rules of executive business.” 8. Obviously, the Marketing Officer at whose instance, this case was instituted, was not authorized under the letter to make search and seizure. Hence, the prosecution, which was launched on the basis of the written report of the said officer cannot sustain in the eye of law. The authority delegated by the Additional Collector was not an authority delegated either by the Central or by the State Government to conduct raid or to make search and seizure. The Additional Collector was not the State Government under the Rules of executive business. 9. In view of the discussion made above, the prosecution launched against the petitioner by filing the first information report being Kotwali P.S. Case no. 311 of 2008 is, hereby, quashed. 10. In the result, this criminal miscellaneous petition is, hereby, allowed.