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Suresh Kumar v. State Of Haryana .
Factual and Procedural Background
The matters are Criminal Miscellaneous Petitions No. 10613-M of 1994 and No. 13928-M of 1994, filed under Section 482 of the Code of Criminal Procedure. The central statutory instrument in issue is Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 (the "Order"), which prescribes who may exercise powers of entry, search and seizure under that Order. The petitioners had been directed to face trial upon framing of charge (order dated 24.5.1994, Annexure P-2).
Relevant facts: A four-wheeler (No. HYO - 3021) coming from Rohtak was loaded with gas cylinders. The accused and co-accused in the vehicle were unable to produce documents evidencing valid purchase and carriage of the cylinders. The police collected evidence, registered an First Information Report under Section 7 of the Essential Commodities Act, 1955, and filed a challan prepared by a Sub Inspector of Police (who was the investigating officer). The court subsequently charge-sheeted the accused.
On the pleadings and in reply, it was not disputed that the Sub Inspector who conducted the investigation was neither an "Inspector" of the Department of Food and Civil Supplies nor a person authorised and notified under Clause 7 of the Order.
Legal Issues Presented
- Whether a police officer who is not authorised and notified under Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 can exercise powers of entry, search and seizure under that Order and conduct the investigation under its mandate.
Arguments of the Parties
Petitioners' Arguments
- The Sub Inspector who carried out the entry, search and seizure and investigation was not an authorised/notified person under Clause 7 of the Order and therefore lacked power to do so.
- Reliance was placed on judgments of this Court (as listed below) to support the proposition that a Sub Inspector is not an authorised/notified person under the Order and cannot exercise those powers.
- Because this defect goes to the root of the prosecution, no useful purpose would be served by proceeding with the trial; charges should therefore be quashed.
State's Arguments
- In reply and during arguments it was not disputed that the Sub Inspector was neither an Inspector nor a person authorised and notified under Clause 7 of the Order.
- The learned counsel for the State did not press a submission that the police officer could conduct the investigation under the general provisions of the Code of Criminal Procedure; this contention was not advanced in view of the Supreme Court judgment cited (Nilratan Sircar v. Lakshmi Narayan Ram Niwas).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Page: 367of Harpal Singh v. State of Punjab reported as 1991 (2) Chandigarh Law Reporter 71 | Authority supporting the proposition that a police officer of the rank of Sub Inspector is not an authorised and notified person under the Order and cannot exercise the powers under Clause 7. | The court accepted this line of authority as establishing that the Sub Inspector could not lawfully exercise entry, search, seizure and investigatory powers under the Order. |
| Raj Kumar v. State of Punjab reported as 1994 (2) Chandigarh Law Reporter 24 | Authority relied on for the same proposition regarding the required authorised/notified status under the Order. | Relied upon by petitioners and accepted by the court as part of the settled position of law that a Sub Inspector is not an authorised person under Clause 7. |
| Ashok Kumar v. State of Haryana reported as 1991 (2) Recent Criminal Reports 140 | Authority cited for the proposition that only persons authorised/notified under Clause 7 may exercise the Order's powers of search/seizure. | Considered by the court as supporting the conclusion that the Sub Inspector lacked authority under Clause 7. |
| Kala Devi Alias Kala… v. State Of Haryana…. reported as 1995 (2) Recent Criminal Reports 427 | Recent authority of this Court cited to reinforce the settled position that a Sub Inspector is not authorised under the Order. | Treated by the court as corroborative authority for quashing where the investigating officer was not an authorised/notified person under Clause 7. |
| Nilratan Sircar v. . Lakshmi Narayan Ram Niwas reported as 1965 (1) Criminal Law Journal 100 | Authority concerning whether a police officer can conduct investigation under the general law of the Code of Criminal Procedure. | The State did not press its alternative contention that investigation could be sustained under the CrPC in view of this Supreme Court decision; the court noted this non‑pressing of the submission. |
Court's Reasoning and Analysis
The court began by examining Clause 7 of the Liquified Petroleum Gas Order, 1993, which specifies who may exercise powers of stop, search, entry, seizure and measures for securing production of stock. Clause 7 requires that the exercising person be an officer of the Department of Food and Civil Supplies not below the rank of an Inspector authorised by the State and notified by the Central Government, or an officer not below the rank of a Sales Officer of an oil company, or a person authorised and notified as specified.
On the record, the Sub Inspector who investigated was admittedly neither an Inspector nor an authorised and notified person under Clause 7. The petitioners relied on several precedents of this Court that establish the settled principle that a Sub Inspector is not an authorised/notified person under the Order and therefore cannot lawfully exercise the Order's powers.
The court noted that this defect goes to the root of the prosecution. Because the State did not dispute the lack of statutory authorisation and the State's counsel did not press an alternative submission (that investigation could be conducted under the CrPC) — in view of the Supreme Court authority cited — the court found it appropriate to quash the charge. The court therefore concluded that no useful purpose would be served in directing the petitioners to undergo trial on charges founded on entry, search and seizure carried out by a person lacking the requisite statutory authorisation.
Holding and Implications
Holding: The charges framed on 25.5.1994 against the petitioners in both petitions are quashed and the petitioners are discharged.
Implications:
- The direct effect is that the petitioners are discharged and both petitions are disposed of.
- There shall be no order as to costs.
- The opinion rests on established precedent and the statutory text of Clause 7; it does not purport to lay down any broader new precedent beyond the application of the cited authorities to these facts.
Swatanter Kumar, J. (Oral):— The only question that arises for consideration in both Crl. Misc. No. 10613-M of 1994 and Crl. Misc. No. 13928-M of 1994, which are petitions under Section 482 of the Code of Criminal Procedure, is that whether a police officer, who is not authorised and notified under the provisions of Clause 7 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 (hereinafter referred to as “the Order”) can exercise power of entry, search and seizure under the said order and could conduct the investigation. Said clause of the order reads as under:—
“Power of entry, search and seizure.
(1) An officer of the Department of Food and Civil Supplies of the Govt. not below the rank of an Inspector, authorised by such Govt. and notified by the Central Government, or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorised by the Central Government, may with a view to ensuring compliance with the provisions of this order, for the purpose of satisfying himself that this order or any order made thereunder has been complied with:
(a) Stop and search any vessel or vehicle which the officer has reason to believe has been or is being, or is about to be, used in the contravention of this order:
(b) enter or search any place with such aid or assistance as may be necessary;
(c) Seize and remove, with such aid or assistance as may be necessary, the entire quantity of any stock of liquified petroleum gas in cylinders, cylinde valves and pressure regulators, alongwith the vehicles, vessels or any other conveyance used in carrying such stock if he has reason to suspect that any provision of this order has been or is being or is about to be contravened in respect of such stock and thereafter take or authorise the taking of all measures necessary for securing the production of the stock of liquified petroleum gas in cylinders, cylinders, gas cylinder valves, pressure regulators, vehicles, vessels or other conveyance to seize before the Collector having jurisdiction under the provisions of Section 7 of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production;
2. The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this order.”
2. The petitibners in these cases were directed to face the trial upon framing of the charge against them vide order dated 24.5.1994, Annexure P-2 to the petition.
3. Four-wheeler bearing No. HYO - 3021 was coming from Rohtak side and it was loaded with gas cylinders. On enquiry, the accused and other co-accused who were in the said vehicle, were unable to produce any paper to show valid purchase and carrying of these cylinders. The police consequently collected other evidence against these accused and found them guilty for violating the provisions of the aforesaid Order and registered an First Information Report under Section 7 of the Essential Commodities Act, 1955. Challan was filed by the concerned police officer who was admittedly Sub Inspector in the present case and on the basis of which the Court charge-sheeted, as indicated above.
4. To appreciate the contentions of the learned counsel for the petitioners, the provisions of Clause 7 of the order need scrutiny. Under Clause 7 of the order which governs the subject, a person who can exercise the power of entry, search and seizure has to be an officer of the Department of Food and Civil Supplies of the Government and is not to be below the rank of an Inspector. Such Inspector has to be authorised by the Government and notified by the Central Government or any officer not below the rank of a Sales Officer of an Oil Company or a person authorised by the Central Government or a State Government and notified by the Central Government and in conformity with sub-clause 1 of Clause 7 of the order. The petitioner had made specific averments in the petition. Reply has been given in Court. In reply, it has not been disputed that Sub Inspector of Police is neither an Inspector nor a person duly authorised and notified by the State and Central Government in furtherance to the statutory mandate of Clause 7 of the Order.
5. Learned counsel for the petitioner has relied upon the judgments of this Court in case Page: 367of Harpal Singh v. State of Punjab reported as 1991 (2) Chandigarh Law Reporter 71, Raj Kumar v. State of Punjab reported as 1994 (2) Chandigarh Law Reporter 24, Ashok Kumar v. State of Haryana reported as 1991 (2) Recent Criminal Reports 140 and on a very recent judgment of this court in the case of Kala Devi Alias Kala… v. State Of Haryana…. reported as 1995 (2) Recent Criminal Reports 427. Thus, settled position of law is that a police officer of the rank of Sub Inspector is not authorised and notified person under the Order and consequently could not have exercised the power of entry, search and seizure and certainly under Clause 7 of the Order the powers of entry, seizure, search and investigation of the case do not vest in Sub Inspector of police who was not authorised by the State Government and notified by the Central Government. No fruitful purpose would be served in directing the petitioner to stand the complete trial. This is the matter which goes to the root of the prosecution and as a fact it has not been disputed in the reply and even during the course of arguments by the learned counsel for the State. I find it a fit case where the charge should be quashed. Learned counsel for the State has not pressed his submission that the police officer could conduct investigation of this case under the provisions of Code of Criminal Procedure which is general law governing the investigation into criminal offences. He has fairly not pressed this contention in view of the judgment of the Supreme Court in the case of Nilratan Sircar v. . Lakshmi Narayan Ram Niwas reported as 1965 (1) Criminal Law Journal 100.
6. In view of the discussion above, charge against the petitioners in both the petitions framed on 25.5.1994 is hereby quashed and the petitioners are hereby discharged. There shall be no order as to costs.
7. Both the petitions are disposed of accordingly.
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