Cases referred :
1. Roy V.D. v. State of Kerala, 2000(4) Crimes 196 (S.C).
2. Laxmikant Shankarlal Sarda v. State of Maharashtra, 2002 Bom.C.R.(Cri.) (N.B.)170 : 2002(2) Mh.L.J. 471.
3. Kallol Kumar Mukherjee v. State of West Bengal, 1995 Cri.L.J. 654 (Cal.).
Advocates appeared :
J.M. Gandhi, for applicants.
S.B. Ahirkar A.P.P., for non-applicants.
ROHEE K.J., J.:- Heard the learned Counsel for the applicants and the learned A.P.P. for the non-applicants.
2. By this application under section 482 of the Code of Criminal Procedure read with Articles 226 and 227 of the Constitution of India, the applicants seek to quash and set aside FIR No. 67 of 2000 of Police Station, Balapur, District- Akola as well as Criminal Case No. 6 of 2000 pending before Criminal Court at Akola.
3. It appears that applicant No. 1 is the owner of Truck No. MH-31-W-2655 and deals in transportation of the goods to various destinations. Applicant No. 2 is in the employment of applicant No. 1 as Truck Driver and applicant No. 3 is in the employment of applicant No. 1 as cleaner. On 19th May, 2000 the said truck was stationed by the side of the road in front of Gurudwara near Paras Fata. It is alleged by the prosecution that applicant Nos. 2 and 3 (the driver and cleaner of the truck) were filing blue kerosene in the diesel tank of the truck from a 35 litre can. Thus, applicant Nos. 2 and 3 were misusing the kerosene supplied under the public distribution system. The truck and the can were seized by A.P.I. Sawale of Police Station, Balapur. Crime No. 67 of 2000 under section 3 read with section 7 of the Essential Commodities Act, 1955 was registered at Police Station, Balapur. After completion of investigation, charge-sheet was filed only against applicant Nos. 2 and 3 before the Special Judge at Akola.
4. It appears that during the pendency of the present application the truck was released. So the only grievance that remains is in respect of the criminal case pending against applicant Nos. 2 and 3 before the Criminal Court. 5. The learned Counsel for the applicants urged that it is a case of no evidence. He submitted that the charge-sheet and the documents filed with it do not disclose the source of kerosene. He submitted that under Rule 3 of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 it is necessary for the prosecution to allege that the kerosene alleged to have been misused was supplied under the public distribution system. No evidence was collected by the prosecution in this respect and hence there is no material to book applicant Nos. 2 and 3 for any offence.
6. It would be worthwhile to refer to Rule 3(1) of the said Order. It provides as under:
3(1)
"No person shall use kerosene supplied under the public distribution system for any purpose other than cooking and illumination."
7. It is thus obvious that in order to bring home the guilt under Rule 3, the prosecution has to allege and prove, apart from misuse of the kerosene, that the kerosene was supplied under the public distribution system.
8. The learned A.P.P. appearing on behalf of the non-applicants urged that the kerosene which was being misused was of blue colour which indicates that it was supplied under the public distribution system. However, the learned A.P.P. could not point out any documents to show that blue kerosene is meant for supply under the public distribution system. In the absence of such evidence, it is difficult to hold that the kerosene seized from applicant Nos. 2 and 3 was supplied under the public distribution system so as to attract the provisions of Rule 3(1) of the said Order.
9. The learned Counsel for the applicants further pointed out that the seizure was carried out by the A.P.I. Sawale, who was not authorises to make seizure. In this respect, the learned Counsel for the applicants pointed out that Notification dated 7-7-1994 has been issued by the Government of India, Ministry of Petroleum and Natural Gas, New Delhi in pursuance of sub-clause (c) of Clause 7 of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 whereunder all the Police Officers not below the rank of Inspectors have been authorised to take necessary action under the provisions of the said order within their respective jurisdiction. It may be noted that Rule 9 of the said Order provides that the Central Government may by Notification authorize any officer to take action under the said order. As pointed out above, the Notification dated 7-7-1994 authorizes the Police Officers nor below the rank of Inspectors. The investigating officer in the present case Mr. Sawale is Assistant Police Officer and as such he was not authorized to take action under the Order. Thus, the seizure was carried out by an unauthorized officer on the basis of which FIR was registered and charge-sheet was filed. The same is inherently illegal and cannot form the basis of prosecution. In this respect, the learned counsel for the applicants relied on (Roy V.D. v. State of Kerala)1, 2000(4) Crimes 196(S.C.) wherein it is held as under:
"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."
10. The learned Counsel for the applicants also relied on (Laxmikant Shankarlal Sarda v. State of Maharashtra and another)2, 2002 Bom.C.R.(Cri.) (N.B.)170 : 2002(2) Mh.L.J. 471, in which it was held that the seizure and investigation by PSI was not legal, he being an officer below the rank of Police Inspector.
11. The learned Counsel for the applicants lastly pointed out that the charge-sheet disclose that an offence under section 3 read with section 7 of the Essential Commodities Act has been committed by applicant Nos. 2 and 3. However, neither the charge-sheet nor any documents filed with it disclose as to which order was violated by the applicants so as to attract the provisions of section 7 of the Essential Commodities Act. In such situation, the charge-sheet is liable to be quashed. In support of this submission, the learned Counsel for the applicants relied on (Kallol Kumar Mukherjee & others v. State of West Bengal)3, 1995 Cri.L.J. 654 (Cal.).
12. Considering the material on record and the submissions made on behalf of the parties, I am satisfied that the FIR as well as the prosecution against applicant Nos. 2 and 3 cannot be sustained and they are required to be quashed and set aside. Hence the order:
i) The criminal application is allowed.
ii) The FIR No. 67 of 2000 at Police Station, Balapur, District, Akola as well as Criminal Case No. 6 of 2000 pending before Criminal Court at Akola are hereby quashed and set aside.
iii) The suprutnama executed by applicant No. 1/owner of the truck is hereby cancelled.
iv) The rule is made absolute in the above terms.
Application allowed.