Satyawan IN THE PUNJAB AND HARYANA HIGH COURT AT201408.20 16:32 "I attested to the accuracy and integrity of this document" CHANDIGARH High Court Chandigarh CRA-S-46-SB-2003 Date of Decision : August 14, 2014 Anil Kumar @ Neelu & others .........Appellants Versus State of Punjab .....Respondent ***** CORAM : HON'BLE Mr.JUSTICE ASHUTOSH MOHUNTA, ACTING CHIEF JUSTICE Present : Mr.Amit Rawal, Sr.Advocate with Mr.Manvir Singh, Advocate for appellant No.1.
Mr.R.S.Rai, Sr.Advocate with Mr.Gautam Dutt, Advocate for appellant No.2.
Mr.Sanjiv Gupta, Advocate for appellants No.3 to 8.
Appellant No.6 stated to have died.
Mr.Sukhdeep Singh Brar, Addl.
A.G., Punjab.
**** 1.
Whether Reporters of Local papers may be allowed to see the judgment?.
2.
To be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
ASHUTOSH MOHUNTA, J.
The appellants have filed the present appeal against the judgment dated 10.12.2002 passed by Special Judge, Fatehgarh Sahib vide which they were convicted under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') and were sentenced to undergo RI for four years each.
Appellant No.1 Anil Kumar @ Neelu, Rajesh Thor appellant No.2., Mohan Lal, appellant No.5 and Madan Lal appellant No.6 were also ordered to pay fine of ` 5,000/-each, whereas appellant No.3 Balwant Singh, appellant No.4 Gurmail Singh, appellant No.7 Balbir Singh and appellant No.8 Munna Lal were ordered to pay fine Satyawan CRA-S-46-SB-2003 2 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh of ` 500/- each and in default of payment of fine each of them were ordered to undergo RI for four months under Section 7 of the Act.
Briefly, the facts of the case are that on 30.11.1995, Lakhvir Singh, Officer Incharge of the Police Station Gobindgarh accompanied by SI Sukhdev Singh, ASI Mohinder Singh, ASI Gurdial Singh, Constable Gulshan Kumar 465 and SPO Ranjeet Singh 200 were on patrolling duty at Gol Chowk Gobindgarh, where he received a secret information to the effect that Anil Kumar @ Neelu and Rajesh Thor son of Manmohan Parshad Thor were owning tankers and indulging in the manufacturing of duplicate furnace oil by mixing kerosene with coaltar.
It was further informed that the tanker No.PB-23-3268 being driven by Balwant Singh and tanker No.PJI7131being driven by Gurmail Singh are carrying duplicate furnace oil and if raid is conducted then these persons can be apprehended red handed.
Upon receiving this information, Lakhvir Singh, Officer Incharge of Police Station Gobindgarh sent ruqqa Ex.
P-3 to Police Station at 6.10 A.M.for registration of the case against the four accused and on its basis FIR Ex.
P-4 was registered by MHC Hans Raj.
Thereafter the police party proceeded towards turning of village Tooran and put up barricades there.
After 15-20 minutes the aforesaid two tankers driven by Balwant Singh and Gurmail Singh were intercepted and drivers of the said tankers were arrested on the spot, while their owners Anil Kumar @ Neelu and Rajesh Thor allegedly fled away from the spot.
On checking of Tanker No.PB-23-3268, 12000 liters furnace oil was recovered from all the four chambeRs.Samples were drawn and were sealed with seal bearing impression 'LS'.
Likewise, on checking of Tanker No.PJI-7131, 12000 liters of duplicate furnace oil was recovered from all the three chambeRs.Here Satyawan CRA-S-46-SB-2003 3 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh also, samples were drawn from all the chambers and were sealed with the impression 'LS'.
Samples of the case property were taken into possession, which were duly attested by SI Sukhdev Singh and ASI Mohinder Singh.
The accused who were arrested, suffered disclosure statement Exhibits P10- & P-11 disclosing that their owners prepare duplicate furnace oil which was dumped in tankers underneath ground in the fields of village Kumb.
Officials of the Food and Civil Supply Department S/Sh.
Mohinder Singh Cheema, FSO, Amloh, Sant Singh, AFSO and Sh.
Janak Raj, Inspector were joined in the investigation of this case.
In the meantime, DSP Shamsher Singh and Sh.
Gian Chand, Tehsildar also reached there.
In the presence of aforesaid witnesses 10 underground tanks, containing 80,000 liters of duplicate furnace oil was recovered.
Samples were drawn from each of the tanks by the officials of the Food and Civil Supply Department as per procedure.
Two tankers having registration No.PB-11- C-4677 containing kerosene oil and No.PAT-7168 containing 3000 ltrs furnace oil were also standing there.
Samples from those tankers were also taken.
Drivers of the said tankeRs.namely, Munna Lal and Balbir Singh were also arrested in the case.
All the accused were challaned and sent up for trial.
On the basis of the offence narrated in the FIR all the accused were charge-sheeted under Section 7 of the Essential Commodities Act for contravening the provisions of Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978 vide order dated 5.11.1996.
The prosecution examined as many as seven witnesses and closed its evidence while giving up Constable Gulshan Kumar, Gian Chand Tehsildar and Mohinder Singh Cheema as unnecessary.
Satyawan CRA-S-46-SB-2003 4 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh On the contrary, no evidence was led by the accused and in their statement under Section 313 Cr.P.C.they pleaded not guilty and claimed trial and according to them they were falsely implicated in the case.
At the very outset it is pertinent to mention that accused No.6 Madan Lal died during the pendency of the appeal on 21.8.2011 as is apparent from perusal of his death certificate and, therefore, qua him the present appeal stands abated.
Learned counsel for the appellants contended that appellants have been falsely implicated in the present case.
It is contended that entire investigation in this case has been carried out by SI Lakhvir Singh, Officer Incharge of Police Station Gobindgarh, whereas under Clause 9 of Kerosene (Restricted on Use and Fixation of Ceiling Price) Order 1993 it is only an officer of the department of Food and Civil Supplies of the Government, not below the rank of an Inspector, is authorized to search and seize.
Thus entire process of search and seizure in this case was illegal and without jurisdiction and goes to the very root of the case and it vitiates the entire investigation.
Reliance in this regard was placed on the judgment of this Court in the case of Ashwani Kumar versus State of Haryana, 2012(3) R.C.R.(Criminal) 384, wherein it has been laid down as follows :- “29.
Therefore, the legislative intent underlying the relevant Order is clear and implicit that in order to invoke a penal provision, the prosecution was required to prove all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order and to observe the strict compliance of the provisions of clause 9 contained therein, with regard to search and seizure of the property.
That being the legal position, it can safely be held that neither all the essential ingredients of Satyawan CRA-S-46-SB-2003 5 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh clauses 3(2) and 4 (1)(c) of the relevant Order are complete, nor PW2 SI of Police Dilbag Singh was authorized and competent to search and seize the case property, nor he has joined any such authorized person at the time of search and seizure under the relevant Order.
Therefore, the entire process of search and seizure was illegal, without jurisdiction, goes to the very root of the case and vitiated the trial in this regard.
This grave illegality and material procedural irregularity entail the acquittal of the appellants in this relevant connection.”
.
He also relied upon Atul Garg son of Janak Raj versus State of Punjab, 2012(3) R.C.R.(Criminal) 936, wherein this Court has held as under :- “15.
Therefore, the legislative intent underlying the relevant Order is clear and explicit that in order to invoke a penal provision, the prosecution was required to prove all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order and to observe the strict compliance of the provisions of clause 9 contained therein, with regard to entry, search and seizure of the property.
That being the legal position, it can safely be held that neither all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order are complete, nor SI of Police Shinderpal Singh was authorized and competent to search and seize the case property, nor he has joined any such authorized person at the time of search and seizure under the relevant Order.
Therefore, the entire process of search and seizure was illegal, without jurisdiction, goes to the very root of the case and vitiated the investigation in this respect.
This grave illegality and material procedural irregularity entail the discharge of the petitioner in this relevant direction.
16.
Such thus being the legal position on record, the FIR registered against the petitioner-accused on the basis of ruqqa of the police officer is not only illegal but without jurisdiction as well.
Hence, the arguments of the learned counsel for the Satyawan CRA-S-46-SB-2003 6 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh petitioner that entire exercise is illegal and futile, have considerable force and the contrary contentions of learned State counsel “stricto sensu”.
deserve to be and are hereby repelled under the present set of circumstances.
The law laid down in the aforesaid judgment “mutatis mutandis”.
is attracted to the present controveRs.and is the complete answer to the problem in hand.
Strengthening the said proposition of law, reliance is also placed on Raj Kumar versus State of Punjab, 1994(3) R.C.R.(Criminal) 254.
It was further contended that the challan in the present case was directly presented before the Court of Sessions as finds noticed in the zimini order dated 6.9.1996.
The FIR being triable by Special Judge was required to be committed by the Magistrate in terms of Section 193 of the Code of Criminal Procedure.
The said mandatory provision having been bypassed and over looked by the trial Court while convicting the present accused, the judgment under appeal deserves to be set aside.
In support of this argument learned counsel placed reliance on the judgment of this Court passed in Balbir Singh and others versus State of Punjab, 2011(2) R.C.R.(Criminal) 723, wherein it has been held as under :- “16.
In the instant case, it is established from the reading of the zimni orders that the challan was straightaway presented to the designated Court of Special Judge.
This, in my opinion, is contrary to the spirit of Section 193 of Criminal Procedure Code.
In a similar situation, Hon’ble the Supreme Court in Jagdish Prasad Gupta V.
State of Rajasthan and otheRs.1995 Supp (3) SCC386 has held as under:- “5.
That apart, having examined the provisions of the Essential Commodities Act, we are satisfied that the Special Court constituted under Section 12-A of the Act is to be presided by a Single Judge who is qualified for Satyawan CRA-S-46-SB-2003 7 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh appointment as a High Court Judge or he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge.
In the instant case admittedly, the Special Court is presided by an additional Sessions Judge and as provided under Section 193 of the Code of Criminal Procedure, the Court of Session cannot take cognizance of any offence directly except as expressly provided by the Code of Criminal Procedure or by any other law for the time being in force.
The section further lays down that no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the Code.
That being the legal position, the Additional Sessions Judge who is presiding over the Special Court cannot get jurisdiction by a mere transfer of a case by the High Court.
We may also point out that the High Court has not referred to any of these provisions before ordering such transfer.
In the result, the impugned order is set aside and all the cases which are transferred by virtue of the impugned order dated 30.7.1993 are sent back to the Judicial Magistrate for CBI cases, Jaipur for being tried and disposed of in accordance with law.”
.
17.
Furthermore, Hon’ble the Apex Court, in Moly and another V.
State of Kerala, 2004(2) R.C.R.(Criminal) 389: 2004(2) Apex Criminal 584 : 2004(4) SCC584 has held as under:- “5.
Pristine question to be considered is whether the Special Judge could take cognizance of the offence straightaway without the case being committed to him.
If the Special Court is a Court of Session, the interdict contained in Section 193 of the Code of Criminal Procedure, 1973 (for short the “Code”.) would stand in the way.
It reads thus: “193.
Cognizance of offences by Courts of Session –Except as otherwise expressly provided by this Code or by any other law for the time Satyawan CRA-S-46-SB-2003 8 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”
.
It was also contended on behalf of the accused that as per the Laboratory Test report dated 5.4.1996 given by the Indian Oil Corporation Limited, samples failed to meet the specification of furnace oil in respect of the contents.
Likewise, samples of kerosene also failed to meet the specifications.
In view of the said report learned counsel contended that no offence under the Act can be said to have been committed by the accused.
It was further contended by learned counsel that the case property was never produced by the prosecution despite the directions of the trial court as is evident from the perusal of the zimini order dated 9.6.200 and 1.9.2000 though the same had been taken into possession vide Exhibits P-5 & P-6.
Even CBI failed to produce the same before the trial Court and, therefore, non-production of case property proves that the entire case was a case of planted recovery casted upon the appellants by the police, therefore, conviction deserves to be set aside.
It was lastly contended by learned counsel for the appellants that in the report of CBI dated 17.2.1998, which has been placed on record of this case by way of Criminal Miscellaneous No.56302 of 2005, the CBI has concluded in its recommendation clause (iv) that “the Dy.
Chief Controller of Explosives, Chandigarh may be directed to take action against all offenders i.e.S/Sh.
Anil Kumar Ghai @ Neelu, Rajesh Thor etc.for the commission of offences under Petroleum Act, 1934 and disposal, as per rules, of the stock of adulterated oil lying in the oil dump at Village Kumb.”
.
In view of the said report of CBI, no offence under the Act for which the appellants have been charged and convicted in the present case by the Satyawan CRA-S-46-SB-2003 9 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh trial court is made out.
It was, thus, contended that the impugned judgment of conviction and sentence passed against the appellants be set aside.
Per contra, counsel for the State argued that huge quantity of spurious furnace oil and kerosene oil was recovered from the four tankers as well as underground tankers situated at village Kumb at the instance of the appellants, of which the appellants No.1 & 2 were the owners and, therefore, they have been rightly convicted by the trial Court.
He further contended that minor technical lapses could not come in the way of unbiased investigation especially, when the same has been conducted through raid on receipt of secret information which led to the recovery of spurious furnace and kerosene oil.
I have heard learned counsel for the parties at length and have perused the entire case file.
Admittedly, the investigation in the present case has been carried out by PW-4 SI Lakhvir Singh, Officer Incharge of Police Station Gobindgarh.
Clause 9 of Kerosene (Restricted on Use and Fixation of Ceiling Price) Order, 1993 pertaining to power of entry, search and seizure reads as under :- “(a) An officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by the Central Government or any officer authorised and notified by the Central Government, or any officer not below the rank of Sales Officer of a Government Oil Company authorised by the Government and notified by the Central Government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of satisfying himself that this order or any order made thereunder has been complied with : Satyawan CRA-S-46-SB-2003 10 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh (i) ..................(ii) enter or search any place with such aid or assistance, as may be necessary; and (iii) seize and remove with such aid or assistance, as may be necessary, books registers and other records pertaining to kerosene business,along with vehicle, vessel or any other conveyance used for carrying such stock, if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorize the taking of all measures necessary for securing the production of the kerosene at the office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 to 1955).for their safe custody pending such procedure.
(b) The provisions of Section 100 of the Code of Criminal Procedure, 1973 [2 of 194].relating to search and seizure shall, so far as may be, apply to searches and seizures under this Order.”
.
In view of the unequivocal provision of Clause 9 of the said order of 1993, there is no room for doubt that the mandatory procedure with regard to the search and seizure of tankers as well as the underground tankers was not followed and raid not conducted by an officer authorized to do so.
Rather on the contrary, it was initiated and done at the instance of Sub Inspector, who under Clause 9 of the said Order is neither authorized nor has the jurisdiction to perform the said task.
The judgments cited by the counsel for the appellants in the case of Ashwani Kumar's case (supra).Atul Garg's case (supra) and Raj Kumar's case (supra) squarely cover the case and, therefore, I have no hesitation to hold that the standard procedure with regard to the search and seizure was not followed Satyawan CRA-S-46-SB-2003 11 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh and adopted in the present case.
It was held in Ashwani Kumar's case (supra) that under Clause 9 only the officers of the food and supplies are authorized to search and seize and not the Sub Inspector of Police.
The law laid down in this case is fully applicable to the facts of present case as the search and seizure in this case was held by an police official, therefore, the entire process of search and seizure was illegal, without jurisdiction and it goes to the very root of the case.
The conviction of the accused is set aside.
From the record it transpires that report under Section 173 Cr.P.C.in the present case was presented directly before the Court of Sessions.
Section 193 Cr.P.C.lays down that Court of Session cannot take cognizance of any offence directly except as otherwise expressly provided by the Cr.P.C.or by any other law for the time being in force.
The section further lays down that no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
A reading of the order dated 9.8.1996 passed by the Special Judge, Fatehgarh Sahib clearly brings out that the procedure envisaged under Section 193 Cr.P.C.has been given a complete go-bye by the trial court, inasmuch as, it had directly entertained the report filed by the police under Section 173 Cr.P.C.In the case of Balbir Singh (supra) this Court while dealing with an identical situation set aside the conviction of the appellant therein on this score alone holding that the challan against the accused persons having been straightway presented to the designated Court of Special Judge, is contrary to the spirit of Section 193 Cr.P.C.Therefore, I find no reason to take a different view than the one taken in the said case while acquitting the accused therein, as the Satyawan CRA-S-46-SB-2003 12 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh procedure laid down in the Balbir Singh's case (supra) is similar to the facts enumerated in the present case.
There is yet another aspect to the present case which has failed to catch the eye of the trial Court while convicting the accused in the present case.
In the Laboratory testing report dated 5.4.1996, which has been appended as Annexure P-2 & P-3 with the appeal, it has been found that “the samples of furnace and kerosene oil failed to meet the specification in respect of contents thereof.
In view of the said report it becomes crystal clear that the oil recovered by the investigating agency at the behest of the appellants herein was not spurious or contaminated so as to fall within the contravention of Section 7 of the Act and, therefore, in the absence of any evidence coming forth on record I find it difficult to agree with the finding recorded by the trial court so as to uphold the conviction of the appellants in the present case.
Apart from the above, the appellants by way of additional evidence vide Criminal Miscellaneous No.56302 of 2005 has placed on record a final enquiry report of the CBI dated 17.3.1998 prepared in pursuance to order passed by this Court in a criminal writ petition No.1691 of 1996 filed at the instance of Gurbachan Lal son of Teja Singh, wherein the nexus among Anil Kumar Ghai of DSP Vijay Kumar Sharma and Karnail Singh was brought in light.
After detailed enquiry into the matter the CBI in the said report concluded that “Enquiries have thus proved that Sh.
Anil Kumar Ghai in conspiracy with Sh.
Rajesh Thor had stored petroleum Class B measuring 2.07 lacs ltrs much in excess of the permissible limit of 1000 ltrs in underground tanks in vill.
Kumb Mandi Gobindgarh without any licence obviously for the purpose of selling the same, thus, committing an offence under Section 23(1)(1) & (b) of the Petroleum Act, 1934”., and thus Satyawan CRA-S-46-SB-2003 13 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh recommended that the offence in question falls within the scope and ambit of offence punishable under the Petroleum Act, 1934 and not under the provisions of Essential Commodities Act.
The present report goes to the root of the truth and is a vital piece of evidence laboriously fathomed by CBI and has to be taken into account as additional evidence.
This criminal miscellaneous No.56302 of 2005 is allowed and the final enquiry report prepared by the CBI is taken on record as mark “A”.As per the CBI report, it has been concluded that action be taken against the accused under the provisions of the Petroleum Act, 1934.
In the present case, the appellants have been charged under the Essential Commodities Act and no case has been set up by the prosecution under the Petroleum Act.
Even otherwise, the prosecution has miserably failed to prove on record that the appellants were indulging in manufacturing and selling of spurious furnace or kerosene oil inasmuch as laboratory reports Ex.
P-1 & P-2 suggests otherwise, therefore, in view of the same the prosecution has failed to prove the offence punishable under Section 7 of the Essential Commodities Act against the appellants.
A perusal of the case file also shows that the prosecution has failed to connect the accused with the alleged recovery of spurious furnace oil and kerosene oil inasmuch as they were neither owner of the tanker nor the place from where the alleged recovery was effected and in view of the missing link evidence in the present case the conviction of the appellants cannot be sustained.
Another glaring flaw in the present case is that the case property was never produced before the trial court despite categoric orders to do so on 9.6.2000 and 1.9.2000.
Even the CBI did not produce the case property in the present case and, therefore, adveRs.inference has to be Satyawan CRA-S-46-SB-2003 14 2014.08.20 16:32 "I attested to the accuracy and integrity of this document" High Court Chandigarh drawn against the prosecution.
In view of the foregoing discussion, this appeal is allowed.
The impugned judgment and order dated 10.12.2002 passed by the Special Judge, Fatehgarh Sahib are set aside and the appellants are acquitted of the charges framed against them.
All the appellants are on bail and accordingly their bail bonds stand discharged.
(ASHUTOSH MOHUNTA) ACTING CHIEF JUSTICE August 14, 2014 'SP'