An Assistant Sub Inspector of Police is not competent to conduct a search and seizure under Section 3 of the Essential Commodities Act.

M.L.Singhal, J.

1. This is criminal misc. petition filed by Sham Lal son of Ram Kumar-petitioner whereby he has sought the quashing of FIR No. 29 dated 5.2.1995 under Section 7 of the Essential Commodities Act (Annexure P-1) registered at Police Station Julana, District Jind. It is averred that he is running a Hind Oil Company at Julana and deals in kerosene. No case is made out against him as would emerge from the perusal of FIR Annexure P-1. A police officer below the rank of Sub-Inspector is not competent to effect search and seizure under Section 3 of the Essential Commodities Act. In this case, the search and seizure was effected by Assistant Sub Inspector and as such the same is illegal and void. The FIR registered in consequence of such illegal and void search and seizure is also illegal and void and is not sustainable. Cognizance of the case by a Special Court constituted under the Essential Commodities Act is equally illegal and void. Frame of charge Annexure P-2 by Special Judge, Jind under the Essential Commodities Act is also illegal and void. It would be an exercise in futility to try him on an illegal and void prosecution.

2. Respondent-State of Haryana opposed the petition through reply put in, in the form of an affidavit of Sukh Lal Dhankar, Deputy Superintendent of Police, Headquarters, Jind urging that the petitioner was caught while dealing in the sale of kerosene in black on 5.2.1995 by ASI Charanjit Lal then working as Officer Incharge of Police Station, Julana. The controlled price of kerosene was Rs. 2.87 paise per litre while he was found to have sold kerosene at the rate of Rs. 5/- per litre to the bogus-punter.

3. I have heard learned counsel for the State and have gone through the record.

4. According to the respondent on 5.2.1995 ASI Charanjit Lal who was Officer Incharge (SHO) Police Station, Julana sent Kapoor Singh s/o Banwari Lal (a bogus punter) with a marked currency note of the denomination of Rs. 100/- to the accused with a view to purchase 20 litres of kerosene from him. According to the respondent HC Bhim Singh was instructed to act as a "shadow witness" and give indication as soon as the deal was over. According to the respondent, Kapoor Singh gave the marked currency note of the denomination of Rs. 100/- to the accused and the accused supplied him 20 litres of kerosene.

5. In the exercise of powers vesting in this Court under Section 482 of the Code of Criminal Procedure, this Court cannot go into the question of the truth or otherwise of the facts recited in the FIR. The question of ascertaining the truth or otherwise of the facts recited in the FIR is required to be adjudicated upon by the trial Court on appreciation of evidence.

5. In Harpal Singh and others v. State of Punjab, 1991(3) RCR 307, it was observed that "under Section 3 of the Essential Commodities Act the power to search and seizure can be exercised by Director, Assistant Director of Food and Supplies. District Magistrate and Police Officers not below the rank of Sub Inspector".

6. Under Clause 15 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978 issued under Section 3 of the Essential Commodities Act, 1955 , an Assistant Sub Inspector of Police was not competent to enter upon or search the business premises of the dealer.

7. Clause 15 of the said order reads as follows :-

"15. Power of entry, search and seizure etc. (1) The Director, the District Magistrate, or any other officer not below the rank of Sub Inspector of Police may with a view to securing compliance with the provisions of this order or to satisfying himself that the provisions of this Order have been complied with and with such assistance, if any, as he thinks fit - (a) enter upon and inspect any business premises of a dealer or any premises on which he has reason to believe that Light Diesel Oil or kerosene or both have been or are being or likely to be kept, stored, distributed, disposed or to and from which light diesel oil