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Andhra Pradesh High Court
Judges : CH.S.R.K.PRASAD
CH.YEGNAIAH - Appellant
Versus
State OF A.P. - Respondent
Decided On : 09-03-02
Criminal Law - Criminal Trial - Seeking to quash proceedings – Code of Criminal Procedure,1973 - Section 482 ,100 – Constitution Of India - Articles 14 and 21 – Evidence - Essential Commodities Act, - Section 7 - Inspector of Police, Vigilance Cell, Civil Supplies department, Mahaboobnagar inspected petrol bunk of first accused, sons, a Bharat Petroleum Corporation dealer and recorded density in presence of mediators in morning hours - Said inspector also has drawn samples in three bottles from each tank of MS and outlet nozzles - He sent two sample bottles for analysis - Basing on report of analyst, said Inspector registered a case against petitioners in Crime since there was variation in density beyond permissible limits and malpractices violating provisions of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and prevention of Malpractices) Order, 1998 and sought to punish accused under section 7 of the Act for contravention of clause 2 (e) and clause 5 of MS and HSD (RSDPM) Order, 1998 for short - Learned Counsel for petitioners assails proceedings on two grounds - First ground is that Inspector of Police, Vigilance Cell, Civil Supplies department is not authorized to make search and seizure and same has to be conducted by an officer not below rank of Deputy Superintendent of Police in view of Clause IV of MS and HSD Order - Second contention is that petitioner has not been supplied with analyst report immediately and no sample bottle has been supplied to get it tested from an independent analyst - Reliance is placed on provisions of Food Adulteration Act and Fertilizer (Control) Order - Learned Counsel for petitioners wanted to draw my attention on applicability of provisions by analogy – Contentions, it is necessary to decide whether Inspector of police has got jurisdiction to make search and seizure in respect of petrol bunk of MS and HSD - Before adverting to same, it is necessary to have a glance at clause-4 of ms and HSD (RSDPM) Order of 1998 which reads as under:"4 - Power of search and seizure : (A) Any Gazetted Officer of Central or state Government or any Police Officer nor below rank of Deputy Superintendent of police (DSP) duly authorized by general or special order by Central Government or state Government as case may be or any officer of concerned oil company not below rank of Sales Officer may, with a view to securing compliance with provisions of this order - Held, Court view of what is stated supra, court hold (1) that Fertilizer (Control) Order 1985 including Clause 19 (1) thereof does not suffer from vice of unconstitutionality and as such, intra virus Constitution - It is clear in said MS and HSD Order that there is no provision to get sample tested from an independent analyst and as such same has been denied - It is clearly stated by Division Bench of this Court in decision cited supra that certain directions shall be read into order to get sample tested from an independent agency - Coming to facts of present case, no rule/provision as much is enumerated in MS and HSD Order - What is contemplated is that sample bottle has to be given to a person/dealer facing case of cancellation of license / registration - Purpose of giving sample to such person / dealer is only to safeguard his interest and make compliance with provision - It is not stated that he has got right to send sample to another independent agency - Option is left over to him - Petitioner is, therefore, at liberty to get sample tested from an independent analyst and tender same during evidence by way of defence - Court to fill-up gap and set right lacuna in rule position - It is for concerned authorities to frame rules - Court in exercise of its powers under section 482 Cr. P. C. cannot decide constitutional validity of MS and HSD order - Scope of Section 482 Cr. P. C is very limited and it cannot go beyond scope of deciding constitutional validity of MS and HSD Order - Power of search and seizure by Inspector of Vigilance in question is concerned, he is not authorized in view of express provision in Clause-4 of MS and HSD Order - In view of above finding, proceedings are liable to be quashed - Procedure contemplated under provisions of Food adulteration Act to get sample bottle tested by another independent agency can not be read into rules of Essential commodities Act, as was done in decisions cited supra in respect of Fertilizer (control) Order - It is for concerned authorities to frame rules in light of observations made by this Court in present judgment - In absence of such rule position, it can not be said that the right of petitioner is affected - Inspector of Vigilance has no power to record or seize or investigate - Criminal Petition is Allowed
( 1 ) THE petitioners, who are accused 1 to 3, invoked the inherent powers of this Court under Section 482 Cr. PC seeking to quash the proceedings in C. C. No. 956 of 2000 on the file of the Judicial first Class Magistrate, Jadcherla.
( 2 ) A brief resume of background of the facts is necessary, enter. The Inspector of Police, Vigilance Cell, Civil Supplies department, Mahaboobnagar inspected the petrol bunk of the first accused, M/s. Yadaiah and sons, a Bharat Petroleum Corporation dealer and recorded density in the presence of the mediators in the morning hours. The said inspector also has drawn samples in three bottles from each tank of MS and hsd outlet nozzles. He sent two sample bottles for analysis. Basing on the report of the analyst, the said Inspector registered a case against the petitioners in Crime No. 123/ vc. MBNR/99 since there was variation in the density beyond the permissible limits and malpractices violating the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and prevention of Malpractices) Order, 1998 and sought to punish the accused under section 7 of the Essential Commodities Act for contravention of clause 2 (e) and clause 5 of MS and HSD (RSDPM) Order, 1998 for short ( the MS and HSD Order ).
( 3 ) THE learned Counsel for the petitioners assails the proceedings on two grounds. The first ground is that the Inspector of Police, Vigilance Cell, Civil Supplies department is not authorised to make search and seizure and the same has to be conducted by an officer not below the rank of Deputy Superintendent of Police in view of Clause IV of the MS and HSD Order. The second contention is that the petitioner has not been supplied with analyst report immediately and no sample bottle has been supplied to get it tested from an independent analyst. Reliance is placed on the provisions of the Food Adulteration Act and Fertilizer (Control) Order. The learned Counsel for the petitioners wanted to draw my attention on the applicability of the provisions by analogy.
( 4 ) THE learned Public Prosecutor has contended that the Inspector of Police, vigilance Cell is a Gazetted Officer of the state and has been authorised to make search and seizure. It is also contended that it is not a fit case to exercise the inherent powers. It is further contended that there arc no rules whereunder a copy of the analyst report has to be furnished to a dealer so as to send another sample bottle to an independent analyst.
( 5 ) ADVERTING to the contentions, it is necessary to decide whether the Inspector of police has got jurisdiction to make search and seizure in respect of petrol bunk of MS and HSD. Before adverting to the same, it is necessary to have a glance at clause-4 of the ms and HSD (RSDPM) Order of 1998 which reads as under:"4. Power of search and seizure : (A) Any Gazetted Officer of the Central or state Government or any Police Officer nor below the rank of Deputy Superintendent of police (DSP) duly authorised by general or special order by the Central Government or state Government as the case may be or any officer of the concerned oil company not below the rank of Sales Officer may, with a view to securing compliance with the provisions of this order, or for the purpose of satisfying himself that this order or any order made thereunder has been complied with: (I) enter and search any place or premises being made use of or suspected to be made use by a dealer, transporter, consumer, or any other person who is an employee or agent of such dealer/ transporter/consumer or any other person with respect to which there is reason to believe that the provisions of this order have been/are being or are about to be contravened. (II) Stop and search any person or vehicle or receptacle used or intended to be used for the movement of the product. (III) Inspect any book of accounts or order documents or any stock of the product used or suspected to be used in the business of th
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