1. This application under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash the criminal proceeding initiated against the petitioner and others which arises out of Laukaha (Khutauna) P. S. Case No. 0093 dated 21-10-1984 (G. R. Case No. 691/84) instituted under Section 7 of the Essential Commodities Act. 1955 (for short 'the Act'). This case is pending trial before the Special Judge (E.C. Act), Madhubani. According to the prosecution, the petitioner is one of the partners of M/s. Pansari Auto Service, a petrol and diesel oil dealer. It is said that on 20th October, 1984, a truck belonging to Kosi Kanal Project having its registration No. BRX 8856 came to the petrol pump and purchased diesel under cash memo Nos. 316, 317 and 318 dated 20th October, 1984, for 400 litres, 200 litres and 400 litres respectively, it is said that the driver got the drams containing the diesel loaded on the truck and went away. On the following day, i.e. 21-10-1984, the Assistant Sub-Inspector of Police, Khutauna, found the truck bearing registration No. BRX 8856 unloading certain drums of diesel and mobil oil in the premises of the Middle School. Out of the three persons, who were engaged in unloading the truck, two managed to escape but the third Jagti Thakur was arrested, who claimed part of the diesel as his own. First Information Report was subsequently ledged at Laukaha police station on the basis of which investigation started and the petitioner was arrested on 22-6-1985. After completion of investigation charge-sheet was submitted on 20-7-1985 and cognizance has taken 16-8-1986. The petitioner, along-with others, is now facing trial before the Special Judge (E. C. Act), Madhubani.

2. Mr. Bharukd appearing on behalf of the petitioner raised a very interesting question. He did not dispute that the offence alleged provides a maximum sentence of 7 years under Section 7 of the Act, but learned Counsel contended that under proviso to Clause (f) to Section 12-AA of the Act, it will be lawful for the Special Judge to pass a sentence of imprisonment for a term not exceeding 2 years. He, therefore, contended that the case becomes a summons-case and since the investigation continued beyond six months from 21-10-1986 (when Jugti Thakur, the accused was arrested) without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond six months was necessary, the same became illegal. Learned Counsel, therefore, submitted that any action taken on the basis of this illegal investigation should be quashed. As I have said above, the argument is quite interesting and Mr. Bharuka tried to bring through his point of view with great skill and persuasive advocacy. In order to appreciate the argument, it will be proper to refer to certain provisions of the Act and the Code of Criminal Procedure at this stage itself.

3. Section 5 of the Essential Commodities Ac. provides as follows :

Penalties,-(1) If any person contravenes any order made under Section 3-

(a) he shall be punishable-

(i) ...

(ii) in the case of other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine ;

(b) ...

(c) ...

Act 18 of 1981 came into force on 1-9-1982 and Section 12-AA of the Act was inserted in the Act for a period of five years. After the expiry of 5 years, this section has been continued for another five years. According to Clause (a) to this section, notwithstanding anything contained in the Code of Criminal Procedure, all offences under the Act are triable only by the Special Court constituted for the area in which the offence has been committed. Clause (f) to this section provides that all offences under the Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure shall, as far as may be, apply to such trial. Sub-section (2) to Section 262 of the Code of Criminal Procedure provides that no sentence of imprisonment for a term exceeding three months shall be passed in case of any conviction in a summary trial This provision, however, bas been excluded so far as summary trial of an offence under the Act is concerned by inserting a proviso to Clause (f) to Section 12-AA of the Act where it has been said "Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years. 'Summons-case' has been defined under Section 2 (w) of the Code of Criminal Procedure as meaning 'a case relating to an offence, and not being a warrant-case'. Section 2(x) of the Code of Criminal Procedure defines 'waarant case' as 'a case relating to an offence punishable with death, imprisonment for life or imprisonment for a terra exceeding two years'. Therefore, a case relating to an offence which is punishable for a term not exceeding two years is a summons-case.

4 I have mentioned above different provisions of the Code of Criminal' Procedure and the Essential Commodities Act which have been referred to by Mr. Bharuka and which will have to be considered by me in this judgment,

5. Mr. Bharuka urged that as a result of insertion of Section 12-AA of the Act the maximum period for which the accused can be punished is two years imprisonment notwithstanding the maximum sentence of seven years as provided under Section 7 of the Act. According to learned Counsel, therefore, the result was that provision of maximum sentence of 7 years as prescribed under Section 7 stood repealed. As a logical corollary to this argument, the argument of Mr. Bharuka is that the case relating to offences punishable under Section 7 of the Act became summons-case and, as such it was controlled by Sub-section (5) to Section 167 of the Code of Criminal Procedure. He, therefore, urged that since the investigation continued beyond six months from the dale on which the accused was arrested the investigation should have been stopped as undisputedly the investigating agency did not satisfy the Magistrate that further investigation beyond the period of six months was necessary for special reason and in the interest of justice. Learned Counsel for the State did not dispute the fact that the investigation continued beyond the period of six months without satisfying the requirement under Section 167 (5) of the Code of Criminal Procedure ; he also, on the basis of the decisions in the cases of Ali Hussain v State of West Bengat 83 Cal. W.N. 559; Ram Kumar Keshori v. The State 1981 C.L.J. 1288; Jay Sanker Jha v. The State 1982 C.L.J. 744; Ram Briksh Jadab v. State of West Bengal 1983 C.L.J. 39; Rovinderpal Singh v. Union Territory, Chandigarh 1986 C.L.J. 1371 and paragraph 8 of the decision in the case of Hussainara Khatoon v. Home Secretary, State of Bihar A.I.R. 1979 S.C. 1379, very rightly did not contend that if investigation is not completed within six months from the date on which the accused was orrested in a summons-case then the Magistrate is obliged under Sub-section (5) to Section 167 of the Code of Criminal Procedure to direct stopping further investigation into the offence unless he on an application by the Investigating Officer is satisfied that continuance of investigation beyond six months is necessary for special reason and in the interest of justice. Learned Counsel, however, contended that if investigation has been continued even illegally and if such investigation discloses commission of an offence then the courts are not precluded from taking cognizance on the basis of illegal investigation. This is another aspect of the matter which will have to be considered after determination as to whether Section 167 (5) of the Code of Criminal Procedure applies to the facts of this case. This Sub-section (5) applies to a summons-case. Therefore, the first thing that has to be seen is as to whether this is a summons-case or not. I have mentioned earlier that as a result of Section 12-AA of the Act the Special Judge can impose a punishment upto 2 years imprisonment notwithstanding 7 years imprisonment as prescribed under Section 7 of the Act. Does this mean that the offence is punishable with 2 years imprisonment ? According to Block's Law Dictionary 'punishable' means 'deserving of or capable or liable to punishment; capable of being punished by law or right'. That means the accused can be punished law (under Section 7 of the Act) to a term of imprisonment upto 7 years as this section prescribes a period of 7 years punishment. Therefore, the prescribed quantum of punishment is 7 years although by virtue of the proviso to Clause (f) to Section 12-AA of the Act a limit has been imposed on the Special Judge not to impose a sentence beyond 2 years. It is not possible for me to accept the contention of Mr. Bharuka that as a result of insertion of proviso to Clause (f) to Section 12-AA, Section 7 of the Act stood repealed. If the Legislature wanted to repeal Section 7 of the Act then it could very well have said so ; particularly when by Section 10 of the Act 18 of 1981 and other provisions like Section 12 of the Act were omitted. The maximum sentence of 7 years as provided under Section 7 of the Act and the proviso to Clause (f) to Section 12-AA imposing a limit of 2 years imprisonment on the power of the Special Judge has to be harmoniously construed and J do not find any difficulty in the same. The offence continues to attract the maximum sentence of 7 years. But the Special Judge trying the case does not have the jurisdiction to impose a sentence of more than 2 years. This does not mean that the offence itself is punishable by 2 years. It only means that although the offence is punishable by 7 years but the trial Court cannot give a sentence beyond 2 years and if this construction is given then both Section 7 and the proviso to Clause (f) to Section 12-AA get their full play. J may here refer that the offence under Section 379 of the Penal Code is punishable by rigorous imprisonment for three years. This offence is triable by a first class or second class Magistrate. A Magistrate having second class power cannot award a punishment beyond 2 years. That will not mean that the offence under Section 379 of the Penal Code carried a punishment upto 2 years only. I am, therefore, positively of the view that notwithstanding the proviso to Clause (f) to Section 12-AA of the Act, the offence continues to be punishable for a term upto seven years. The case, therefore, cannot be said to be a summons-case and as such, Section 167 (5) of the Code of Criminal Procedure has no application to the facts of this case. Further Section 167 (5) of the Code of Criminal Procedure says that the Magistrate shall order stopping investigation in case the same has not been completed within six months from the date on which the accused was arrested. In the case before us the matter was not pending before the Magistrate rather it was pending before the Special Judge, who is an officer of the rank of Additional Sessions Judge. I am extremely doubtful that the word 'Magistrate' can be referable to Special Judges having the rack of either Sessions Judge or Additional Sessions Judge. For these reasons, I do not agree with Mr. Bharuka that the contention of investigation beyond six months from the date of arrest of the accused was illegal.

6. Having rejected the first argument of Mr. Bharuka, I now take up the other attack made by the learned Counsel. According to him, Rule 12 of the Bihar Motor Spirit and High Speed Diesel, Oil Dealers Licensing Order, 1966, authorises the State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer Incharge Tyre Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub-divisional Magistrate, Superintendent of Police, Deputy Superintendent of Police, other police officer not below the rank of Deputy Superintendent of Police or any other person authorised in this behalf by the State Government to, inter alia, search, seize and remove stocks of motor spirit or high speed diesel oil, etc. and to produce the same before a Magistrate. Learned Counsel says that search and seizure was made by the Assistant Sub-Inspector of Police. Khutauna, who was not authorised under Rule 12 of the Order aforesaid to make search and seizure and, as such, the case registered on the basis of this search and seizure was absolutely without jurisdiction. H will be better to quote the relevant provision of Rule 12 of the Order, which reads as under:

Powers of entry, inspection, search, seizure, etc.-(1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer Incharge Tyre Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub-divisional Magistrate, Superintendent of Police, Deputy Superintendent of Police, other police officer not below the rank of Deputy Superintendent of Police or any other person authorised in this behalf by the State Government, viz., with such assistance as he may think fit-

(a)...

(b) ...

(c)...

(d) search, seize and remove stocks of motor spirit or high speed diesel oil with containers and the animals, vehicles or other conveyance used in carrying the said motor spirit or high speed diesel oil in contravention of the provisions of this Order, or of the conditions of the licence issued thereunder and thereafter, take or authorise the taking of all measures necessary for securing the production of stocks of vanaspati and animals, vehicles or vessels or other conveyances so seized before a Magistrate and for their safe custody pending such production.

A perusal of the above rule makes it quite clear that besides the officers mentioned in Rule 12 a police officer below the rank of Deputy Superintendent of Police is not competent to make search and seizure under this rule unless the police officer below the rank of Deputy Superintendent of Police Is specially authorised in this behalf by the State Government. It is not said that the Assistant Sub-Inspector of Police, Khutauna was authorised in this behalf by the State Government, In view of this rule, there is no escape from holding that the search and seizure effected by the Assistant Sub-inspector of Police was in violation of Rule 12 aforesaid.

7. The next question that arises is the effect of this illegal search and seizure on the proceeding. Mr. Bharuka, as 1 have said above, urges that the entire proceeding gets vitiated on account of violation of Rule 12 of the Order. In support of his contention, learned Counsel refers to the decision in the case of K.L. Subhayya v. State of Karnataka . The petitioner in this case was convicted under Section 34 of the Mysore Excise Act on the ground of being in possession of 48 bottles of liquor which were recovered from a car being driven by him. Before the Supreme Court, the conviction was challenged on the ground that the search and seizure of the liquor was in violation of Section 54 of the Mysore Excise Act. This section runs thus:

Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer in charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the ground of his belief-

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

It was admitted before the Supreme Court that the mandatory requirement of Section 54 was not complied with inasmuch as no ground on the basis of which there was a reasonable belief that an offence under the Act had been committed was recorded. In the circumstance, the Supreme Court held that this violation rendered the entire search without jurisdiction and as a logical corollary vitiated the conviction. Their Lordships observed that Sections 53 and 54 of the Mysore Excise Act contained valuable safeguard for the liberty of the citizens in order to protect them from ill-founded or frivolous prosecution or harassment. Mr. Jaiswal, appearing on behalf of the State did not contend that the Assistant Sub-inspector of Police, Kbutauna, had jurisdiction to make the search and seizure. His contention was that at best the search and seizure was illegal and merely because the search and seizure is illegal, the proceeding initiated against the petitioner cannot be quashed. To support his contention, learned Counsel referred to the decision in the case of H. N. Rishbud and Anr. v. State of Delhi . This case lays down that if cognizance has been taken on a police report vitiated by the breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice, Their Lordships have also said that it does not mean that the invalidity of investigation is to be completely ignored by the court during trial. They have said that when the breach of a mandatory provision is brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance may take necessary steps to get the illegality cured and the defect rectified by ordering such reinvestigation as the circumstance of the case may call for. In the case before us, the trial has not begun. The petitioner, therefore, is certainly entitled to raise the point regarding violation of the mandatory provisions of Rule 12 of the Order. There is another aspect also. The case reported in (supra), shows certain infirmities in course of investigation, as it was investigated by an officer below the rank of the Deputy Superintendent of Police without the order of a Magistrate of first class. But in the case at hand, the violation of Rule 12 of the Order was not in the process of investigation rather it was the basis for registering the case under Section 7 of the Act. The illegal search and seizure, therefore, is the foundation of the present prosecution and this, in my opinion, cannot be treated as a mere irregularity and can also not be cured and rectified by directing fresh search and seizure. The case reported in (supra), does not help Mr. Jaiswal.

8. Mr. Jaiswal has also referred to the decision in the case of Radha Kishan v. State Of Uttar Pradesh , and has urged that if the search was illegal, the accused person had a right to resist the same but the court may be inclined to examine the seizure carefully. But it is not only the search which is illegal, the seizure also has been made in violation of Rule 12 and as such, is illegal. The court, therefore, cannot act upon the illegal seizure. Besides this, as I have said earlier, the search and seizure in this case is the foundation of the case and since the two were in violation of Rule 12, the investigation on that basis cannot be said to be lawful.

9. Learned Counsel for the State has also referred to the decision in the case of Shiv Traders v. The State of Bihar 1980 B.B.C.J. 245, to show that if reasons for effecting the search is not recorded then the seizure cannot be said to be illegal That was a case in which a Bench of this Court was considering the seizure effected under Section 9 of the Bihar Edible Oil Wholesale Dealers Licensing Order, 1966. This section gives jurisdiction to the persons specified in it to make search, seizure, etc. But there is nothing in this section which requires the persons making search or seizure to record reasons for believing that any provision of the rule had been violated which warrants search or seizure. Moreover, the Supreme Court case reported in (supra), settles the point that when it has been mentioned in the rule that reasons should be recorded and in case reasons are not recorded then the same is illegal. I am, therefore, of the view that since the search and seizure made by the Assistant Sub-inspector of Police, Khutauna, was absolutely illegal and without jurisdiction, the same has to be ignored. Once the search and seizure is ignored, the very foundation for initiating a proceeding under sec ion 7 of the Act vanishes. In the circumstance, the trial has to be quashed. While passing this order, J am not unmindful of the fact that offences under the Act have now become cognizable. Any police officer now can start investigation on that account under Section 156 of the Code of Criminal Procedure if it comes to his knowledge that an offence has been committed. But that process should not be started on the basis of any illegal search or seizure.

10. Mr. Bharuka has also urged that the alleged offence, if at all, took place within the district of Darbhanga, where, it is alleged, high speed diesel was sold in excess of the prescribed quantity. He, therefore, said that the Special Judge (E. C. Act), Madhubani, has no jurisdiction to take cognizance of the alleged offence. This stand is also disputed by learned Counsel for the State. He says that since the violation was detected within the district of Madhubani, therefore, the Madhubani court has jurisdiction to take cognizance. In view of the fact that I have accepted the earlier submission of Mr. Bharuka, I do not think it necessary to go into this aspect of the matter since it requires appreciation of evidence.

11. In the result, the application is allowed and G. R. Case No. 691/ 84 arising out of Laukaha (Khutauna) P. S Case No. 0093 dated 21-10-1984 pending in the court of the Special Judge (E. C. Act), Madhubani is quashed.