Nilesh Rajendra Gorte vs The State Of Maharashtra
2023 Latest Caselaw 3880 Bom

                                                                         revn-35-2022 judg.odt
                                            (1)


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

             CRIMINAL REVISION APPLICATION NO.35 OF 2022

 Nilesh s/o Rajendra Gorte,
 Age : 33 years, Occupation : Agri.,
 Malwade Galli, Hadgaon,
 District Nanded.                                               ...Applicant

          VERSUS

 The State of Maharashtra
 Through P.P., High Court Aurangabad
 Copy served on G.P. Office,
 High Court Bench at Aurangabad                    ...Respondent
                                  ...
 Ms. Surekha G. Chincholkar, Advocate for the applicant.
 Mr. S.P. Sonpawale, APP for the respondent/State.
                                   ...

                                                CORAM : S.G. MEHARE, J.

RESERVED ON : FEBRUARY 02, 2023

PRONOUNCED ON : APRIL 19, 2023

JUDGMENT :-

1. Heard.

2. The petitioner has impugned the judgments and orders of

conviction passed by the learned Judicial Magistrate First Class,

Hadgaon, in R.C.C. No.34 of 2013 dated 16.03.2015 and confirmed

by the learned Additional Sessions Judge-2, Nanded in Criminal

Appeal No.35 of 2015 dated 20.01.2022 for the offences punishable

under Section 3 and 7 of the Essential Commodities Act.

3. The prosecution case, in brief, is that on 23.06.2010, the

SDPO Bhokar, received the secret information that the

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applicant/accused was using domestic gas cylinders for commercial

use in his tea shop. Therefore, on information and instructions of

SDPO, Bhokar, a police head constable Wahidkhan Pathan took a raid

with other policemen in the shop of the accused. They found a

domestic gas cylinder attached to the stove and two empty gas

cylinders in the tea shop. They seized those cylinders and lodged the

report. The panchnamas of the spot and recovery of articles were

drawn.

4. As per the statement of the applicant under Section 313

of Cr.P.C., he has a case of total denial.

5. Against the two concurrent judgments in the present

revision petition, his counsel Ms. Chincholkar has vehemently argued

that the regulator allegedly used to connect the stove was not

recovered. PW-1 did not support the seizure panchanama. The API

had no jurisdiction to investigate the crime. The applicant did not

violate the Liquefied Petroleum Gas (Regulation of Supply and

Distribution) Order, 2000 (for short, 'L.P.G. Order, 2000'). Clause 13 of

the said order did not empower the A.S.I., to enter, search and seize

the alleged cylinders used in the crime. To bolster her arguments, she

relied on the case of Zubair Ahmed Mushtaque Ahmed and Others Vs.

State of Maharashtra, 2020 DGLS (Bom.) 640 and Sunil Premsukh

Sancheti and Ors Vs. State of Maharashtra, 2006 BCI 188 . She

further argued that the learned Judicial Magistrate First Class has

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erroneously held that the applicant has violated the L.P.G. Order,

2000. The prosecution did not prove that the applicant was the

owner of the shop where the alleged gas cylinders were found.

However, it was erroneously observed that the accused admitted his

proprietary in respect of the tea shop and seizure of gas cylinders

from the said shop. In the absence of document/evidence about the

ownership document of the shop in which the alleged gas cylinders

were recovered, the learned Additional Sessions Judge committed a

grave error of law in believing that the applicant was the owner of the

cylinders found in the shop. The evidence of PW-4 describes that the

applicant has not committed the alleged offence. The legal aspects,

like no power to the investigation officer and not proving the title or

ownership of the applicant over the tea shop, have not been

considered by both courts. Therefore, the revision is liable to be

allowed.

6. Learned APP opposing the application would argue that

the applicant was running the tea shop and never denied ownership

over the tea shop. The applicant was illegally using domestic gas

cylinders to make money. The applicant has no explanation of how he

was in possession of the said cylinders. The circumstances have been

correctly considered, and the applicant was correctly held as owner of

the shop premises. The judgments relied upon by the applicant were

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against the dealer and not the unauthorized user. Therefore, the

petition deserves to be dismissed.

7. Appreciating the arguments advanced by both learned

lawyers, the following legal questions were raised :

(I) Whether the API had the power to investigate the crime

for violating the L.P.G. Order, 2000?

(II) Was it essential to prove that the applicant was the owner

of the shop where the domestic cylinders were found?

8. The prosecution has a case that the applicant had

violated the L.P.G. Order, 2000. The use of domestic gas for

commercial use has been prohibited. The offence under the Essential

Commodities Act is cognizable; hence, any police officer, as a part of

the duty, may investigate the crime. The acts of the accused were

offences under the Essential Commodities Act as well as the Indian

Penal Code. Three cylinders were found in the tea shop of the

applicant. The investigation has been done by a competent A.P.I.

9. In the case of Zubair Ahmed Mushtaque Ahmed (cited

supra), the Division Bench of Bombay High Court at Nagpur Bench

held that in L.P.G. Order, 1998, the power to enter, search and seizure

was entrusted to the 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 not below the rank of a Sales Officer of a

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Government Oil Company authorised by the State Government and

notified by the Central Government, may with a view to ensuring

compliance with the provisions of L.P.G. Order, for the purpose of

satisfying himself that this order or any order made there under has

been complied with.

10. The L.P.G. Order, 2000 replaced the order of 1998.

Clause 13 of the said Order empowers the Officer listed therein to

enter, search and seize articles with the view to secure due

compliance of the said order or any other order made thereunder.

Admittedly in the said clause, the police officer below the rank of

Inspector was not empowered to enter, search or seize the petroleum

products. However, the State of Maharashtra, Mumbai, had issued a

Government Resolution dated 31.01.2011 under L.P.G. Order, 2000

and conferred the powers upon the Police Inspector to be an

investigation officer. In case of Jayendra Sadarmal Talereja Vs. State

of Maharashtra, 2019 DGLS (Bom.) 1388 , the Court held that the

person not below the rank of Inspector had the power to enter, search

and seize the essential commodities and set aside the order of the trial

Court. In the case of Zubair Ahmed Mushtaque Ahmed (cited supra)

also, the Court held that the A.S.I. is not empowered to exercise the

powers under the said Order of 2000. However, in the case of Dinesh

Bhawarlal Sarda Vs. State of Maharashtra and Ors, 2009 (1) Bom CR

(C.R.I.) 47, the Division Bench held that in view of Section 10A of the

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Act (Essential Commodities Act), 1955 read with Section 156 of the

Cr.P.C., any Police Officer in-charge of a Police Station can start

investigation if it comes to his knowledge that a cognizable offence

has been committed within the jurisdiction of Police Station. Anti-

social and economic offenders with the motive of profiteering ought

not to go unpunished due to hallow technicality. Police do have

statutory power to investigate and present charge-sheet in Court in

accordance with the law. It cannot be laid down as a general rule of

law that where there is a special law, making a particular Act an

offence and providing punishment for such offence; the General Law

must be held to be inapplicable. Where the statute is silent, and there

is no exclusion, then the Code (Criminal Procedure Code) will apply

as a parent statute in respect of inquiry, investigation and trial of

Criminal cases. Section 4(2) of the Cr.P.C. provides that the provisions

of the Code of Criminal Procedure are also applicable in cases where

an offence under any other law is being enquired, investigated, tried

or otherwise dealt with subject to any enactment for the time being in

force regulating the manner and basis of investigation inquiry, trial or

otherwise dealing with such offence. Therefore, Police do have the

power to inquire, investigate offences, and take steps, such as search,

seizure, etc., in case there is reason to believe that a cognizable crime

is committed. In short, the law has been laid down that the Police

have unfettered powers to make an enquiry, enter the premises and

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seize the material. The judgment of Sunil Premsukh Sancheti was of

Single Bench, and the judgment of Zubair Ahmed Mushtaque Ahmed

was of the Division Bench. In addition to the above, the Government

Resolution dated 31.01.2011 has conferred the powers to make the

investigation upon the designated Police Inspector. The constable who

had received the information was admittedly not the Officer of the

rank of Police Inspector. However, the prosecution has a case that he

acted upon the direction of the Deputy Superintendent of Police, who

received the secret information. Usually, expressed power conferred

upon the Officer with designation cannot be delegated. In the case at

hand, an objection about the power of A.S.I. to investigate was raised,

but the prosecution did not prove that an officer below the rank of

Inspector had the power to investigate the crimes for the violation of

the L.P.G. Order 2000.

11. The prosecution has a case that since the accused was in

unauthorized possession and illegally using the domestic gas cylinders

for commercial use, it is not unnecessary to prove the title of the shop.

The accused did not deny the seizer from the shop where he was

present. The learned Judicial Magistrate First Class discarded the

defence, giving the reasons that even if, for the time being, it is

assumed that the accused was not the proprietor, he still cannot

escape the law of contravening L.P.G. Order, 2000. In criminal cases,

ownership of the articles, if the offence pertains to its illegal

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possession, the ownership assumes importance. It was possible to the

prosecution to prove the ownership of the shop by collecting the

documents. Therefore, in the case at hand, the mere presence of the

applicant in the shop was insufficient to believe that he was in

possession of the cylinders as its owner. The prosecution was to prove

the case beyond a reasonable doubt. The regulator used for the gas

cylinder was also not seized. Therefore, the Court is of the view that

the prosecution has failed to prove the case against the applicant

beyond a reasonable doubt.

12. For the above reasons, the Court is of the view that both

impugned judgments and orders are erroneous, illegal and improper,

therefore, warrant interference. Now the Court proceeds to pass the

following order:

ORDER

I) The revision application is allowed.

II) The judgments and orders of conviction passed by the learned

Judicial Magistrate First Class, Court No.1, Hadgaon in R.C.C. No.34

of 2013 dated 16.03.2015 and confirmed by the learned Additional

Sessions Judge-2, Nanded in Criminal Appeal No.35 of 2015 dated

20.01.2022, are quashed and set aside.

III) The applicant is acquitted under Section 248 of Cr.P.C. for the

offence punishable under Section 3/7 of the Essential Commodities

Act, 1955.

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IV) The fine amount, if any, deposited by the applicant be returned

to him.

V) The bail bonds and surety bond stand cancelled, and surety

stands discharged.

VI) Record and proceedings be returned to the learned Judicial

Magistrate First Class, Court No.1, Hadgaon.

 VII)         Rule is made absolute in above terms.




                                                (S.G. MEHARE, J.)




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