Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 3153 of 2013 ----- Kanchan @ Kanchan Kumar Singh ....Petitioner Versus The State of Jharkhand. .....Opposite Party ---- Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY ---------- For the Petitioner : Mr. Ashok Kumar Pandey, Advocate For the State : A.P.P. ----- 07/8.1.2015 Heard learned counsel for the petitioner and learned counsel for the State. In the present case, vide order dated 1.4.2014, three weeks' time was granted to the State to take instruction and file a counter affidavit. On 27.11.2014, four weeks' further time was granted to the counsel for the State to take instruction and file the counter affidavit, but no counter affidavit has been filed in spite of the order, as indicated above. In the present application, the petitioner has prayed for quashing the order dated 27.05.2013, passed by learned Chief Judicial Magistrate, Ranchi, by which cognizance has been taken for the offence under clause 3(i) of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 (Order in short) in connection with Kotwali P.S. Case No. 238/2013, corresponding to G.R. Case No. 1553/2013. One Shambhu Nath Gupta, who claims himself to be a Marketing Officer, on the basis of a secret information, conducted a raid at the premises, in which the petitioner was the tenant and in course of raid, five cylinders weighing 14.2 kg., one of which belonged to Indane and three belonged to HP, 23 empty cylinders of 4 kg each, one regulator and one Gas Refilling Machine were seized from the premises. It was alleged that the petitioner used to refill the gas cylinders, which is an illegal act and in presence of other officers, the articles were seized and a seizure list was duly prepared. Based on the allegations as aforesaid, a first information report was instituted being Kotwali P.S. Case No. 238 of 2013. After investigation, chargesheet was submitted against the petitioner and thereafter vide order dated 27.05.2013, cognizance was taken for the offence under clause 3(i) of the said Order. Learned counsel for the petitioner has submitted that the order taking cognizance is bad and illegal as the learned C.J.M., Ranchi did -2- not consider the fact that the author of the First Information Report was never authorised in terms of clause 13 of the said order to institute the case. He, therefore, submits that since the very inception of the prosecution is against the provision of clause 13 of the said Order, as such on this score alone, the present criminal proceeding is liable to be quashed. Whether the Marketing Officer was authorized or not to conduct a search and seizure in terms of clause 13 of the said Order is the moot question in the present application, for which the learned counsel for the State was given sufficient opportunity to take instruction and file a counter affidavit. In absence of a counter affidavit contradicting the stand of the petitioner, this case has to be disposed of on the basis of the averments made by the petitioner. The petitioner is being prosecuted in the present case under section 3(i) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and section 3(i) of the said order reads as under:- 2. Restriction on unauthorised possession, supply and consumption of liquefied petroleum gas((I) A person having a connection for liquefied petroleum gas under the public distribution system, shall not- (a) possess more than one connection of liquefied petroleum gas granted under the public distribution system: Provided that the Central Government or the Chief Executive Officer of a Government oil company, may sanction more than one connection of liquefied petroleum gas under the public distribution system in favour of any person, keeping in view the difficulty and hardship experienced by such person in obtaining supplies of the LPG; (b) possess or use liquefied petroleum gas filled in cylinder or in bulk, unless he has received the supply from a Government oil company or a distributor authorised by such company; (c) use liquefied petroleum gas for any purpose other than for which the consumer is registered with the distributor of a Government oil company: Provided that the Central Government may by a general or special order permit the use of liquefied petroleum gas for such other purposes as it may, by order, specify. Clause 13 of the said order provides for the powers of entry, search and seizure and the same reads as under:- 13.Power of entry, search and seizure.-(1)Any officer of the Central or the State Government not below the rank of Inspector duly authorised by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of a Government oil company not below the rank of Sales Officer, authorised by the Central Government, may, with a view to securing due compliance of this Order or any other order made thereunder: (a)stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product, (b)enter and search any place, -3- (c)seize stocks of liquefied petroleum gas along with container and /or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made. (2)The sales officer of a Government Oil Company shall be authorised to secure compliance of this Order by the distributors appointed under the public distribution system and or by the consumer registered by them. A perusal of clause 13 of the Order reveals that it is the Central Government or the State Government as the case may be in order to secure due compliance of the order and for entry, search and seizure may authorise any person in terms of the said clause. Statement has been made at paragraph 6 of the application to the effect that the Marketing Officer, who had conducted the search and seizure in the present case was not authorized to make such search and seizure. Even in the report submitted by the Marketing Officer, there is no averment to the effect that he was authorised either by the State Government or by the Central Government to conduct the search and seizure in terms of clause 13 of the Order. In this context, it would be apt to refer to a judgement of this Court in the case of Tara Prasanna Dutta-State of Jharkhand & Another reported in 2013 (1) JBCJ516(HC), in which after considering the factual as well as the legal aspects, it was held that any prosecution launched on the basis of search and seizure, which has been effected by the person not authorised under the law gets vitiated. In the present case also, there is nothing on record to suggest that the Marketing Officer was authorised either by the State Government or the Central Government to conduct a search and seizure in the premises of the petitioner, which is contrary to the requirement under the law as per clause 13 of the said Order. Since the informant himself was not authorised to conduct a search and seizure in the premises of the petitioner, I have no hesitation in holding that the order taking cognizance dated 27.5.2013 is not fit to be sustained. Accordingly, the order dated 27.05.2013, passed by learned Chief Judicial Magistrate, Ranchi in connection with Kotwali P.S. Case No. 238/2013, corresponding to G.R. Case No. 1553/2013 is hereby quashed. Consequently, the entire criminal proceeding is also quashed. This application is allowed. (Rongon Mukhopadhyay, J) Rakesh/