Hira Lal Bhartiya And Others v. State Of Uttar Pradesh And Others Opp. Parties.

G.C Mathur, J.:— The petitioners who are partners of the registered firm Hira Lal Bhartiya Oil Mills booked several consignments of oil tins between 14th and 16th March, 1972 from the Kanpur Railway Station for transport to various railway stations in Bihar. On March 18, 1972 one Ram Gopal Jain filed a report at police station Collectorganj Kanpur in which he alleged that the petitioners had mixed linseed oil with mustard oil and had consigned tins of this adulterated oil for transport to Bihar. The first information report further stated that the tins were still lying at the station. The first information report indicated that an offenae under the Prevention of Food Adultertion Act had been committed by the petitioners. Salig Ram Singh, a Sub-Inspector attached to the Collectorganj police station then went to the railway station to seize the tins of oil but the railway authorities asked him to obtain an order from a Magistrate. Salig Ram Singh thereupon put up a report before the Magistrate on the next day and thereupon the Magistrate authorised Salig Ram Singh to seize the tins of oil. On March 20, 1972 the Sub-Inspector went with a police party and seized the tins of oil from the railway goods shed and removed them to the police station. On coming to know of this seizure the petitioners moved the Magistrate to release the tins of oil, but the Magistrate declined to do so. The petitioners thereupon filed this writ petition challenging the seizure as illegal.

2. Sri S.C Khare learned counsel for the petitioners has contended that the Sub Inspector had no jurisdiction or power to seize the tins of oil and that the Magistrate had no jurisdiction to authorise the Sub-Inspector to do so. There appears considerable force in this contention.

3. The Sub-Inspector as well as the Magistrate have purported to act under the powers conferred on them by the Cr. P.C The learned counsel for the petitioners has contended that the offence having been created by the Prevention of Food Adulteration Act and that Act having laid down the procedure for investigation of such an offence, the procedure under the Cr. P.C was ousted. S. 5 of the Cr. P.C provides:

“5(1) All offences under the I.P.C shall be investigated, enquired into tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, enquired into, tried and otherwise deal in with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences.

4. Sub-S. (2) makes it clear that where a special law creating the offence provides a special procedure for investigation and prosecution for that offenae then that procedure alone must be followed and the procedure prescribed by Cr. P.C can not be resorted to. The Bombay High Court in Emperor v. Kaitan Dunning Fernand1. held that where a special law like the Bombay Prevention of Gambling Act has provided a special procedure for the manner or place of investigating or inquiring into any offence under it, its provisions must prevail and no provision of the Cr. P.C can apply. In Delhi Administration v. Ram Singh2. the Supreme Court had to consider whether for an offence under the Suppression of the Immoral Traffic in Women and Girls Act, 1956 an ordinary police officer could make the investigation. The Supreme Court held that it was clear that the special police officer appointed under the Act was competent to investigate and that he and his assistant Officers were the only persons competent to investigate offences under the Act and that police officers not specially appointed as police officers could not investigate the offences under the Act even though they are cognizable offences. In Nilratan Sircar v. Lakshmi Narain Ram Niwas3. the Supreme Court had to consider a similar question in relation to the Foreign Exchange Regulations Act, 1947. The Supreme Court held that the Foreign Exchange Regulations Act is a special Act and it provides u/s. 19-A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement and therefore, the provisions of Cr. P.C will not apply to such investigation by him. A perusal of the Prevention of Food Adulteration Act shows that the legislature has laid down detailed procedure for investigation and enquiry into offences punishable under this Act. It has also provided for certain safeguards for the persons who are charged with commission of offences under this Act. If investigations were permissible by the police under the Cr. P.C then the procedure prescribed by this Act would be set at naught and safeguards provided by the Act for the protection of persons proceeded against under this Act would disappear. The Act lays down detailed procedure for investigation and prosecution for offences under this Act and therefore, the procedure prescribed by the Act alone has to be followed. The procedure prescribed by the Cr. P.C cannot apply. Under this Act only the Food Inspector is authorised to investigate into the offence. This exoludes the ordinary jurisdiction of police officer under the Cr. P.C There being a special law which confers jurisdiction only upon the Food Inspector to investigate the police officers can have no jurisdiction to investigate under the Code any offence under this Act.

5. The learned Standing Counsel sought to justify the seizure and investigation by the Sub-Inspector on the ground that an offence u/S. 272 of the Penal Code was committed. There is no doubt that if an offence u/S. 272 was committed or was suspected to have been committed then the Sub-Inspector would have had jurisdiction to investigate and to seize the offending article. But in the present case it is no body's case that any offence u/S. 272 I.P.C was committed or was suspected to have been committed. At no stage has the Sub-Inspector set up a case that an offence u/S. 272 I.P.C was committed by any one. In the first information report the allegation was of the commission of an offence under the Prevention of Food Adulteration Act. In the report submitted by the Sub-Inspector to the Magistrate for permission to seize the goods the offence mentioned was an offence under the Prevention of Food Adulteration Act. The authorities cannot now take the stand that the offence was suspected to be u/S. 272, I.P.C and therefore, there was jurisdiction in the police to investigate.

6. In view of what has been stated above it is clear that the Magistrate had no jurisdiction to permit the Sub-Inspector to seize the tins of oil and that the Sub-Inspector had no jurisdiction or power to seize them. The seizure of the tins of oil belonging to the petitioners is, therefore, without authority of law and is illegal. The writ petition is accordingly allowed with costs and the respondents are directed to forthwith return all the tins of oil belonging to the petitioners which they had seized from the railway goods shed.

7. Petition allowed.