Bombay High Court
Rohan Nandu Bitani And 2 Others vs State Of Mah. Thr. Pso Ps Khadan ... on 8 September, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
2023:BHC-NAG:13366-DB
J Cri.APL-555-2021 & APL-695-2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.555 OF 2022
APPLICANT : Abhay s/o Anup Rathi,
Aged about 36 years, Ocu. Business,
R/o Near Dental College, Ghateman
Gaurakshan Roak, Akola, Tah. & Dist.
Akola.
..VERSUS..
NON-APPLICANTS : 1 State of Maharashtra,
through Police Station Officer, Police
Station, Khadan, Akola, Tq. & Dist,
Akola.
2 The Police Inspector, Local Crime
Branch, Khadan Akola, Dist. Akola.
WITH
CRIMINAL APPLICATION (APL) NO.695 OF 2022
APPLICANTS : 1 Rohan Nandu Bitani,
Aged about 20 years, Occu. Service,
R/o Yeota Road, Akola, Tq. & Dist.
Akola
2 Sheikh Sameer Skeikh Hasan,
Aged of 22 years, Occu. Service, R/o
Rahul Nagar, Akola, Tq. & Dist. Akola
3 Javed Hussain Safdar Hussain,
Aged about 25 years, Occu. Service,
R/o Old City, Akola, Tq. & Dist.
Akola.
..VERSUS..
J Cri.APL-555-2021 & APL-695-2022.odt
2
NON-APPLICANT : State of Maharashtra,
through Police Station Officer, Police
Station, Khadan, Akola, Tq. & Dist.
Akola.
-----------------------------------------------------------------------------------------
Shri J. T. Gilda, Senior Advocate a/b Shri A. J. Gilda, Advocate for Applicant(s).
Shri S. S. Doifode, APP for Non-Applicants in both applications.
--------------------------------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
RESERVED ON : 3rd AUGUST, 2023.
PRONOUNCED ON : 8th SEPTEMBER, 2023.
JUDGMENT : (PER : VALMIKI SA MENEZES, J.)
. By these two criminal applications, the applicants
seek to invoke this Court's inherent power under Section
482 of the Code of Criminal Procedure, 1973, seeking to
quash the First Information Report (FIR) No.1203 of 2021
dated 23.12.2021, registered with Khadan Police Station,
District Akola and connected Final Report dated
04.10.2022 in RCC No.1242 of 2022.
The Final Report alleges offences against the
applicants under Sections 188, 285 read with Section 34 of
the Indian Penal Code, 1860, under Sections 3 and 7 of the
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Essential Commodities Act, 1955, under Sections 3 and 4
read with Section 23 of the Petroleum Act, 1934 and under
the Motor Spirit and High Diesel (Regulation of Supply,
Distribution and Prevention of Malpractice) Order 2005
and Amendment Order 2017. The sole applicant in
Criminal Application (APL) No.555 of 2022 is alleged to
be the owner of the seized product purporting to be bio-
diesel or a petroleum product and is alleged to have
illegally sold this product, which is subject matter of the
seizure conducted pursuant to lodging of the FIR. The
three applicants in Criminal Application (APL) No.695 of
2022 are daily wagers and driver of a tanker in which the
said product was stored. For the purpose of decision in this
matter, we refer to the record in Criminal Application
(APL) No.555 of 2022, which is filed at the behest of
applicant Abhay Anup Rathi, since the record is common
to the other criminal application bearing No.695 of 2022.
2. The facts, as stated in the application and as
culled out from the record of the FIR and from the Final
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Report, that have led to the filing of these two applications
under Section 482 of the Code of Criminal Procedure, are
as under :
a) It is the applicant's case that he is in the
business of supply of Hydrocarbon Oil for
Industrial use, for which purpose he owned two
tankers and would operate his business from a land
belonging to one Prasanna Tapadia, where the
raid/seizure was carried out by the complainant. It is
further the applicant's case that the concerned
hydrocarbon oil was imported into India from
U.A.E., through Jawaharlal Nehru Port Trust
Airport (JNPT) at Nava Sewa along with its invoice,
and after obtaining requisite test report and clearing
customs, the imported hydrocarbon oil was moved
to K. M. Enterprises, Raigad in Konkan area, which
has in turn supplied the same to the applicant after
payment of all the necessary taxes under an invoice
and E-way bills. The applicant claims that the seized
J Cri.APL-555-2021 & APL-695-2022.odt
product is neither bio-diesel nor a petroleum
product, which is prohibited for retail sale and is
meant only for Industrial use.
b) The FIR dated 23.12.2021, was registered
against the applicants Rohan, Sheikh and Javed at
02:31 hours under Sections 3 and 7 of the Essential
Commodities Act (hereinafter referred to as "the EC
Act") and under Sections 188, 285 read with 34 of
the IPC at the behest of one Nitin Bhimrao
Chawhan, the Assistant Police Inspector posted at
Local Crime Branch Office, Akola; the allegations
in the FIR are that on receiving secret information
on 22.12.2021, that the applicant Abhay Rathi was
storing bio diesel, a prohibited product, in two
tankers, at a Paddy field along the Malkapur - Yevta
Road at Akola, the complainant proceeded to the
spot with Panchas and other Police personal for
conducting a raid and found the said Rohan, Sheikh
and Javed unloading the said product from the
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trucks. That, since these persons nor the applicants
were in possession of any licence of sale of bio diesel
or petroleum products, he seized the three tankers
bearing Nos.MH-30-L-1751, MH-30-L-2087 and
MH-46-BM-2331 loaded with this product in the
presence of the Panchas. Thereafter, nine samples of
the product i.e. three samples each of 750 ml from
each truck were drawn, sealed under Panchanama
and sent by the complainant for chemical analysis.
Since the acts allegedly committed by the accused
persons were offences under Sections 3 and 7 of the
EC Act and under Sections 188, 285 and 34 of the
IPC, and these were cognizable, the impugned FIR
was lodged.
c) Thereafter, the nine samples, which were
drawn in glass bottles, were sent for testing on
02.02.2022 to the Small Can Filling Plant (S.C.F.P.)
Khapri Laboratory of the Indian Oil Corporation
Limited for determination as to whether the
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samples contained bio-diesel.
d) The test report dated 12.02.2022 stated that it
was rejected since specifications were not met for
107111-Bio Diesel.
After having received this report, it appears
that an additional charges were added alleging
offences under Sections 3, 4 and 23 of the
Petroleum Act, 1934.
e) Thereafter, another set of samples was seized
from the tankers by a different Assistant Police
Inspector in the presence of Panchas on
07.07.2022, which was then sent to the Regional
Forensic Science Laboratory, Amravati. However,
reliance was placed on another report of the
Department of Explosives dated 17.02.2023 which
gives its opinion on the earlier opinion rendered by
the Indian Oil Corporation Limited stating that the
product was not confirmed to standards of bio-
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diesel.
f) The charge-sheet came to be lodged before the
concerned Court on 04.10.2022 alleging offences
against the applicants under Sections 188, 285 read
with Section 34 of the IPC, under Sections 3 and 7
of the EC Act, under Sections 3 and 4 read with
Section 23 of the Petroleum Act, 1934 and under
the Motor Spirit and High Speed Diesel
(Regulation of Supply, Distribution and Prevention
of Malpractices) Order 2005 (hereinafter referred to
as "the 2005 Order") and Motor Spirit and High
Speed Diesel (Regulation of Supply, Distribution
and Prevention of Malpractices) Amendment Order
2017 (hereinafter referred to as "the 2017 Order").
The application had initially only laid
challenges to the FIR, however, after submitting the
Final Report, the applicants have sought its
quashment on the basis that the FIR did not
disclose any cognizable offence made out against
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the them and the entire investigation being without
jurisdiction and contrary to the provisions of the EC
Act and orders framed thereunder was liable to be
quashed.
3. The main grounds on the basis of which the two
sets of applications seek to quash the FIR and the
connected Final Report are the following :
a) That, the search and seizure, conducted by an
Assistant Police Inspector on 22.12.2021 and the
FIR lodged on the basis of the said Assistant Police
Inspector's complaint, was by a person not
authorized in terms of Section 3 of the EC Act, and
in terms of Clause 7 of the 2005 Order issued
under Section 3 of the EC Act, inasmuch as Clause
7 empowers a Police Officer not below the rank of
Deputy Superintendent of Police duly authorized
by general or special order to enter, conduct, search
and seizure of such products.
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b) That, the entire search and seizure and the act
of collection of samples of the product is in
violation of Clause 8 of the 2005 Order; and
further that the laboratory test reports were neither
notified laboratories in terms of Schedule III nor in
consonance with Clause 8(4) of the 2005 Order.
The prosecution on the basis of search, seizure and
samples taken in violation of the 2005 Order is
bound to fail.
c) That, the drawing of samples taken on
07.07.2022 was by a person not authorized in terms
of Section 14 of the Petroleum Act, 1934 and in
violation of Rule 198 (1) (c) of the Petroleum Rules,
2002; the samples having been tested by Regional
Forensic Science Laboratory, Amravati on
15.02.2023 (Report released on 17.02.2023) were
by a laboratory not authorized in terms of Sections
17 to 19 of the Petroleum Act and the results were
in total contravention of Rule 195 and Rule 186(2)
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of the Petroleum Rules, 2002 (Petroleum Rules)
and Clause 8(5) of the 2005 Order.
4. With the consent of the learned Senior Counsel
Shri J. T. Gilda for applicant and learned Additional Public
Prosecutor Shri S. S. Doifode for the State, we have heard
these two applications under Section 482 of the Cr.P.C.
finally at the stage of admission. We have also heard
extensive oral arguments on behalf of the rival parties.
Written notes of arguments also came to be filed on record.
After hearing of the parties, we have reserved the judgment
on 03.03.2023, however, thereafter the learned Senior
Counsel for applicant has circulated the matter requesting
further hearing therein to enable him to cite a judgment of
the Hon'ble Supreme Court decided on 23.03.2023 (Avtar
Singh and another v. State of Punjab) , which according to
him would support his submissions. Accordingly, we heard
further arguments from both the sides in the matter on
03.08.2023 and the matter was finally concluded and
reserved for judgment.
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5. Learned Senior Counsel Shri Gilda for applicant
in Criminal Application (APL) No.555 of 2022 has
submitted that the raid was conducted by one Shri Nitin
Chawhan, who was a Police Officer of the State of
Maharashtra of the rank of Assistant Police Inspector on the
basis of secret information and was not a random search.
The raid was conducted on 22.12.2021 in a field occupied
by applicant Abhay Rathi on the premise that he had
illegally stored bio-diesel in three tankers, which were
seized by the Police Officer, and during this raid, nine
samples of 750 ml each were drawn from these tankers in
glass bottles, which were seized under the signature of the
said Assistant Police Inspector in the presence of Panchas
and the three accused in Criminal Application (APL)
No.695 of 2022 (Rohan, Sheikh and Javed). The learned
Senior Counsel further submits that the samples seized on
22.12.2021 were sent for analysis/testing only on
02.02.2022, almost 40 days after they have collected, to the
S.C.F.P. Khapri Laboratory, Nagpur of the Indian Oil
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Corporation Limited for determination as to whether the
samples contained bio-diesel. An FIR came to be lodged on
23.12.2021 on a written complaint filed by the said
Assistant Police Inspector at Khadan Police Station, District
Akola.
6. The learned Senior Counsel for applicant further
submits that another set of samples was drawn from the
seized oil tankers on 07.07.2022, almost six months after
the first seizure, this time by one Yogesh Waghmare, also of
the rank of Assistant Police Inspector. Nine samples of one
litre each were drawn on 07.07.2022, which were sent for
testing/analysis to the Regional Forensic Science Laboratory
(R.F.S.L.), Amravati only on 27.09.2022, twenty days after
they were drawn and these samples were tested by the
R.F.S.L. on 15.02.2023 more than seven months after they
were drawn, and the test report was released by this
Laboratory on 17.02.2023.
7. It is the submission of the learned Senior Counsel
for applicant that the Officer of the rank of Assistant Police
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Inspector was neither authorized in terms of Section 3 of
the EC Act or the 2005 Order issued thereunder and that
the entire investigation which followed on the basis of the
initial search and seizure conducted by unauthorized person
and in violation of the above provisions of the EC Act
necessarily must result in the failure of the prosecution.
It is further the submission of the learned Senior
Counsel that initially the FIR was filed under Sections 3
and 7 of the EC Act and under Sections 188, 285 read with
Section 34 of the IPC, however, thereafter, on receipt of the
second test report, it appears from the record that further
charges were added under Sections 3 and 4 read with
Section 23 of the Petroleum Act, 1934 and under the
Motor Spirit and High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Order 2005
and Amendment Order 2017.
8. It is further the submission of the applicant that
not only are the samples at both points of time taken by a
person not authorized to draw the same, but that both, the
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procedure for drawing of the samples and the test reports
themselves are in violation of Clauses 8(1), 8(4) and 8(5) of
the 2005 Order and of Rules 186(2), 195 and 198(1)(c) of
the Petroleum Rules and Sections 17, 18 and 19 of the
Petroleum Act, 1934. For that purpose, the learned Senior
Counsel has taken us through the entire record of the
charge-sheet, the FIR, the complaint, the two reports
analysing the product at different points of time and the
seizure panchanamas.
9. In support of his arguments, the learned Senior
Counsel for applicant has cited before us the following
judgments :
a) Medipol Pharmaceutical India Private Limited v. Post
Graduate Institute of Medical Education and Research and
Anr, reported in (2021) 11 SCC 339,
b) Jeewan Kumar Raut and Anr v. Central Bureau of
Investigation, reported in (2009) 7 SCC 526,
c) State of Punjab v. Balbir Singh, reported in (1994) 3
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SCC 299,
d) Indian Oil Corporation Limited and Ors. v. R. M.
Service Centre and Anr., reported in (2019) 19 SCC 662,
e) Roy V. D. v State of Kerala, reported in (2000) 8 SCC
590,
f) Nasimkhan Sikandarkhan v. State of Maharashtra and
Anr, reported in 2005 (Supp.) Bom.C.R. (Cri.) 461
g) M/s. Ch. Yegnaiah and Sonsand Ors. v. The State of AP,
reported in 2002 (3) A.P.L.J. 395 (HC) (AP).
h) Avtar Singh and Anr. v. State of Punjab, reported in
(2023) SCC OnLine SC 319.
10. In reply, it is the primary submission of Shri S. S.
Doifode, learned Additional Public Prosecutor appearing
for the non-applicants that since the FIR was registered
both, under the provisions of Sections 3 and 7 of the EC
Act and under Sections 188 and 285 of the IPC, an Officer,
of any rank would be empowered under the provisions of
Section 4(2) of the Cr.P.C. (hereinafter referred to as "the
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Code") as offences under any law are to be investigated,
enquired into and dealt with in accordance with the
provisions of the Code. It was argued by the prosecution
that the provisions of Clauses 8(1), 8(4) and 8(5) of the
2005 Order and of Rules 186(2), 195 and 198(1)(c) of the
Petroleum Rules and Sections 17, 18 and 19 of the
Petroleum Act, 1934, could not an act as a bar to any
Officer empowered under the Code to conduct the search
or a seizure or an investigation whether the matter pertains
to an offence under the EC Act, the Petroleum Act or any
Orders or Rules made under these laws.
11. It is the further submission of the non-applicant
that the two reports of the Chemical Analysis of the
product drawn from the tankers clearly hold that the
product contains hydrocarbon and is a petroleum product
covered by the Petroleum Act and the 2005 Order issued
under Section 3 of the EC Act, and therefore, an offence in
terms of Sections 3, 4 and 23 of the Petroleum Act and
under Sections 3 and 7 of the EC Act have been made out;
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that the petroleum product has neither been stored in
conformity with the requirements of these Acts, and
therefore, an offence, prima facie, has also been committed
in terms of Section 188 of the IPC, since the possession
and storage of the product is contrary to the order duly
promulgated by the Collector. It is his further submission
that the storage of the petroleum product in the manner
done by the applicant is prima facie an offence under
Section 285 of the IPC, since the product is combustible
and its storage in the manner done, may endanger the
human life.
In support of his arguments, learned APP has
pressed into service the following case law :
a) Comandant, Gokul Nagar v. Arjun Das, reported in
reported in (2006) 12 SCC 129,
b) G. S. Oils Limited v. State of Maharashtra, dated
11.10.2012 passed in Criminal Writ Petition No.396 of
2012 (Bombay High Court),
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c) Sarvesh Kumar Shahi v. State of Maharashtra, reported
in 2019 ALL MR (Criminal) 3114 (Bom.)
12. In order to determine whether the material collected
during the course of investigation would make out a case for
prosecution of the applicants under Sections 3 and 7 of the EC
Act, Sections 3, 4 and 23 of the Petroleum Act, the 2005 Order
and Sections 188 and 285 of the IPC, and for the proper
appreciation of the submissions made by the learned Counsel,
we deem it appropriate to make a reference to certain provisions
of law.
Section 3 of the EC Act empowers the Central
Government, by order, to provide for regulating or prohibiting
the production, supply and distribution of an essential
commodity. For that purpose, orders issued by the Central
Government may provide for regulation or prohibition of
production, supply and distribution of essential commodities, in
terms of the manner stated in sub-section (2) of Section 3 of the
EC Act.
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Section 7 of the EC Act sets out the punishment for
the contravention of any order made under Section 3. Thus, it
would be incumbent upon the prosecution to demonstrate
through the investigation, the violation or contravention of a
particular order issued under Section 3 of the EC Act, in this
case, on the initial claim of the product being Bio-Diesel and
later on the claim that the product was covered under the
Petroleum Act.
13. Whilst adverting to the provisions of the EC Act, we
would make a reference to the order dated 19.12.2005 issued by
the Central Government under Section 3 of the EC Act, in
G.S.R. 729(E) known as the "Motor Spirit and High Speed
Diesel (Regulation of Supply, Distribution and Prevention of
Malpractices) Order, 2005". This order seeks to regulate and
control the supply, transportation, marketing, blending and sale
of "High Speed Diesel", which in terms of the definition under
Clause 2(e) is defined as :
"2(e) "High Speed Diesel" means any Hydrocarbon Oil,
excluding mineral Colza Oil and Turpentine substitute, which
meets the requirements of Bureau of Indian Standards
specification number IS-1460."
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The 2005 Order also defines who is the "Authorized
Officer" under Clause 2(b) which reads as under:
2(b) "Authorized Officer" means an officer authorized under
the provisions of Clause 7.
"Malpractices" are defined in the 2005 Order in Clause 2(f)
which are :
2(f) "Malpractices" shall include the following acts of
omission and commission in respect a Motor Spirit and High
Speed Diesel :
(i) Adulteration,
(ii) Pilferage,
(iii) Stock variation,
(iv) Unauthorized Exchange,
(v) Unauthorized Purchase,
(vi) Unauthorized sale,
(vii) Unauthorized possession,
(viii) Over-charging,
(ix) Sale off-specification product, and
(x) Short delivery.
Though, the charge-sheet does not specify which of
the above acts of Malpractices have been resorted to by the
applicants, the material on record would have to establish that
there was a contravention of the 2005 Order, either in terms of
the malpractices specify therein or there has been a breach of
Clauses 3, 4 or 5 of the 2005 Order.
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14. Clause 7 of the 2005 Order, specifies who is the
authorized officer and the manner in which search and seizure
of the product is to be done and samples taken thereof. Clause 7
of the order reads as under :
"7. Power of search and seizure -
(1) Any Gazetted officer of the Central Government or a
State Government or any police officer not below the rank of
Deputy Superintendent of Police duly authorized, by general or
special order of the Central Government or a State
Government, as the case may be, or any officer of the 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
there under has been complied with or there is reason to believe
that all or any of the provisions of this Order have been and are
being or are about to be contravened.-
(a) enter and search any place or premises of a dealer,
transporter, consumer or any other person who is an
employee or agent of such dealer or transporter or
consumer,
(b) stop and search any person or vehicle or receptacle
used or intended to be used for movement of the
product;
(c) take samples of the product and seize any of the
stocks of the product and the vehicle or receptacle or
any other conveyance used or suspected to be used for
carrying such stocks and thereafter take or authorize
the taking of all measures necessary for securing the
production of stocks or items so seized before the
Collector or District Magistrate having jurisdiction
under the provisions of the Essential Commodities
Act, 1955 and for their safe custody pending such
production;
(d) inspect, seize and remove with, such aid or
assistance as may be necessary, books, registers, any
other records or documents of the dealer, transporter,
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consumer or any other person suspected to be an
employee or agent of the dealer, transporter or
consumer;
(2) While exercising the power of seizure provided under sub-
clauses (c) and (d) above, the authorized officer shall record in
writing the reasons for doing so and a copy of such recording
shall be provided to the dealer, transporter, consumer or any
other concerned person, as the case may be.
(3) The provisions of Section 100 of the Code of Criminal
Procedure, 1973 (2 of 1974), relating to search and seizure
shall, as far as may be, apply to searches and seizures under this
Order."
Thus, Clause 7 specifies that the authorized officer to
conduct a search and seizure under the 2005 Order or for an
essential commodity being Bio-Diesel as first set out in
investigation papers or any hydrocarbon oil, shall be a Police
Officer not below the rank of Deputy Superintendent of Police,
duly authorized by general or special order of the State
Government. Clause 7 further authorizes such officer not below
the rank of Deputy Superintendent of Police to take samples of
the product and to produce the stocks and any vehicle used,
before the Collector or District Magistrate having jurisdiction
under the EC Act. In addition, the authorized officer shall
record in writing the reasons for seizure of the products,
providing a copy of such writing to the dealer or transporter.
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Clause 7 also provides that the provisions of Section 100 of the
Code, as far as may be, shall apply to such search and seizures.
We take note of the fact that in the present case, the search and
seizure was in an open field, thus not necessitating the
procedure to be followed under Section 100 of the Code.
15. The manner in which the Sampling of Product taken
during the search/seizure is to be done is specified in Clause 8
of the 2005 Order, which reads as under :
"8. Sampling of Product :-
(1) The authorized under clause 7 shall draw the sample from
the tank, nozzle, vehicle or receptacle, as the case may be, in
clean aluminum containers, to check whether density and other
parameters of the product conform to the requirements of
Bureau of Indian Standard specifications number IS 2796 and
IS 1460 for motor spirit and high speed diesel respectively.
Where samples are drawn from retail outlet, the relevant tank-
truck sample retained by the dealer as per clause 3(b) would
also be collected for laboratory analysis.
(2) The authorized officer shall take and seal six samples of 1
litre each of the motor spirit or three samples of 1 litre each of
the high-speed diesel. Two samples of motor spirit or one of
high speed diesel would be given to the dealer or transporter or
concerned person under acknowledgment with instruction to
preserve the sample in his safe custody till the testing or
investigations are completed. Two samples of Motor Spirit or
one of High Speed Diesel shall be kept by the concerned oil
company or department and the remaining two samples of
Motor Spirit or one of High Speed Diesel would be used for
laboratory analysis;
(3) The sample label shall be jointly signed by the authorized
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officer who has drawn the sample, and the dealer or transporter
or concerned person or his representative and the sample label
shall contain information as regards the product, name of retail
outlet, quantity of sample, date, name of the authorized officer,
name of the dealer or transporter or concerned person or his
representative;
(4) The authorised officer shall forward the sample of the
product taken within ten days to any of the laboratories
mentioned in Schedule III or to any other such as laboratory
when it may be notified by he Government in the Official
Gazette for this purpose, for analysing with a view to checking
weather the density and other parameters of the product
conform to the requirements of Bureau of Indian Standard
specifications No. IS 2796 and IS 1460 for motor sprit and
high speed diesel respectively.
(5) The laboratory mentioned in sub-clause (4) shall furnish
the test report to the authorised officer within twenty days of
receipt of sample at the laboratory.
(6) The authorised officer shall communicate the test result to
the dealer or transporter or concerned person and the oil
company, as the case may be, within five days of receipt of test
result from the laboratory for appropriate action."
Thus, Clause 8 specifies that when samples have to be
taken, three samples of one litre each of the product are required
to be taken, if the same is of high speed diesel, of which one
would be given to the dealer/transporter under
acknowledgment and two samples on which samples' labels to
be jointly signed by the authorized officer and dealer are to be
sent within ten days to an accredited laboratory specified in
Schedule III of the 2005 Order. We note that all Forensic
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Laboratories in the States/Unitaritories are authorized for the
purpose of Clause 8 of the 2005 Order. The laboratory is
required to furnish the test report to the authorized officer
within twenty days from the receipt of the samples.
Clause 10 specifies that the provisions of the 2005
Order shall have overriding effect, notwithstanding anything
contained to the contrary, any order made by a State
Government before the commencement of the Order.
16. The 2017 Order amends the 2005 Order by inserting
Clause 6A therein, which reads as under :
"6A(1) The Central Government may permit the direct sale of
bio-diesel (B-100) for blending with high speed diesel to all
consumers, in accordance with the specified blending limits and
the standards specified by the Bureau of Indian Standards.
(2) The owner of every outlet selling bio-diesel (B-100) shall
prominently display at the place of business the permissible
limits specified by the manufacturers of vehicles and the
standards specified by the Bureau of Indian Standards for
blending of bio-diesel (B-100) for use of consumers in their
vehicles.
Explanation.- For the purposes of this clause, "oil company"
means the Indian Oil Corporation Limited, the Hindustan
Petroleum Corporation Limited, the Bharat Petroleum
Corporation Limited, any private bio-diesel manufacturers, the
authorized dealer of such oil companies and joint ventures of
public sector oil marketing companies authorized by the
Central Government."
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17. From the record, it appears that a second set of
samples was drawn on 07.07.2022, from the concerned oil
tankers by Shri Yogesh Waghmare, Assistant Police Inspector, in
the presence of panchas and with the help of a contract
personnel of Indian Oil Corporation Limited. On this occasion,
nine samples, each of one litre were drawn. To consider the
submissions on behalf of the applicant, that the second set of
samples was drawn by a Police Officer below the rank
designated under the Petroleum Act or that the seizure was in
violation of the Petroleum Rules, 2002, we make reference to
certain provisions of the Petroleum Act, 1934 and the Rules
made thereunder.
18. Under the Petroleum Act, "Petroleum" has been
defined under Section 2(a) to mean any liquid hydrocarbon or
mixture of hydrocarbons and any inflammable mixture
containing a liquid hydrocarbon.
Under sub-section 2(d), the act of transport of
petroleum has been defined while sub-section 2(f) defines what
the words "to store petroleum" means, and it states that the
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words mean to keep the same in any place, but does not include
any detention happening during the ordinary course of
transport.
19. Under Chapter II of the Petroleum Act, the mode of
taking inspection, sampling of petroleum, Use of Standard Test
Apparatus and its certification, the authorization of officers for
carrying of testing and the power of the Central Government to
make rules in this behalf have been set out.
Section 14 of the Petroleum Act requires the Central
Government by a notification to authorize a specific officer by
name or by virtue of office to carry out inspections, take
samples for testing of any petroleum and in that behalf, the
Central Government may make rules to regulate the taking of
samples of petroleum for testing. In terms of these provisions,
the Central Government, in exercise of power conferred by
Sections 4, 5, 14, 21, 22 and 29 of the Petroleum Act has made
the Petroleum Rules, 2002.
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20. Under Section 17 of the Petroleum Act, the Central
Government may authorize any officer by name or by virtue of
office to test petroleum of which samples have been taken
under that Act. In terms of Section 18 of the Petroleum Act
read with Rule 193 of the Petroleum Rules, 2002, the method
of conducting test has been prescribed, while Rule 195(2)
specifies the form in which the test certificate is to be issued.
21. Rules 186 and 198 of the Petroleum Rules, 2002 are
of particular importance for the decision in this matter and the
same are quoted below :
"186. Drawing of Sample. - (1) In all cases, the sampling officer
shall personally superintend the drawing of the sample and the
sample shall be drawn in the presence of at least one witness.
Where the sample is drawn from an original unopened
receptacle containing petroleum otherwise than in bulk the
opening shall be sufficient to admit of the sample being rapidly
transferred from the receptacle.
(2) Two bottles, each of a capacity of 1 litre, shall be filled to
nine-tenths of their capacity with the sample and corked. The
corks shall be driven home and cut-off level with the neck, and
melted sealing wax shall be worked into the corks and the
bottles shall be efficiently sealed.
(3) In the case of petroleum imported into India the bottles
containing the samples shall, after being sealed, be labelled with
the name of the consignee, particulars of the ship or vehicle by
which it is imported and such other distinguishing marks as
may be necessary.
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198. Power to enter, inspect, search and seize. - (1) Any, officer,
specified in column (1) of the table below, may within the
jurisdiction specified in the corresponding entry in column 2 of
the said table:
(a) enter, inspect and search any place where he has
reason to believe that any petroleum is being
imported, transported, stored, produced, refined or
blended or is under transport and inspect all
receptacles, plants and appliances used in connection
therewith in order to ascertain if they are in accordance
with provisions of the Act and of these rules:
(b) search for petroleum therein;
(c) take samples for testing of any petroleum found
therein and make payments by cash for value of
samples taken; and
(d) seize, detain and remove any petroleum or any
material suspected to be petroleum or any equipment
or appliances used therein together with connected
documents thereof in respect of which he has reasons
to believe that any of the provisions of the Act or of
these rules have been contravened.
Designation of the Officer Limit of Jurisdiction
Chief Controller & Whole of India
Controller
All District Magistrates Their respective Districts
All Magistrates subordinate Their respective
to Jurisdiction
District Magistrate
Police Officer not below the The area over which their
rank of an Inspector authority extends
(2) Whenever any officer other than the Chief Controller,
seizes, detains or removes any petroleum or any material
connected therewith or any connected documents thereof under
this rule, he shall forthwith report the fact by telegram to the
Chief Controller and the Controller having jurisdiction over the
place where seizure etc., has taken place and whenever any
officer not being the District Authority seizes, detains or
J Cri.APL-555-2021 & APL-695-2022.odt
removes any petroleum or any material connected therewith or
any connected documents thereof under this rule, he shall
intimate the facts of the case to the Chief Controller and the
Controller having jurisdiction.
(3) Whenever any samples are taken in accordance with this
rule, they shall be tested in accordance with the relevant
provisions of Chapter X of these rules.
(4) Whenever any petroleum is seized under this rule, it shall be
stored, under adequate guard until examination by Chief
Controller or the Controller and receipt of instructions from
him as to its disposal.
(5) Whenever searches are made under this rule the same shall
be carried out in accordance with the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974). All officers of the police
and district authorities shall assist the Chief Controller in the
execution under the Act and rules.
(6) Whenever any person by himself or any person in his
employment voluntarily obstructs or offers any resistance to or
otherwise interferes with or refuses or fails to give or willfully
gives false or misleading information to the officer duly
appointed under this rule who is acting in accordance with his
duty thereunder such person shall be deemed to have
committed an offence under the Act."
22. Thus, a combine reading of these Rules require that
the officer effecting entry, conducting inspection and search and
seizure of any petroleum, shall be not below the rank of a Police
Inspector for the area over which his authority extends.
23. Having quoted the relevant provisions under which
the inspection, search and seizure was carried out in the present
case by an officer, who was below the rank of a Police Inspector
J Cri.APL-555-2021 & APL-695-2022.odt
i.e. Assistant Police Inspector, we now make reference to some
of the case law cited by the learned Counsels for the parties,
who were relied upon the same in support of their arguments.
24. In Balbir Singh (supra), the Hon'ble Supreme Court
was considering a situation where Police Officers conducting
search and seizure under the NDPS Act, did not proceed under
the provisions of that Act and proceeded with the search and
seizure under the Code of Criminal Procedure, in terms of the
provisions incorporated in Sections 41 to 60, 70 to 81, 93 to
105 and Section 165 thereof. The principle question dealt with
by the Hon'ble Supreme Court was whether the Police Officers
were acting in compliance with the provisions of the NDPS Act
and if the same were not in consonance with that Act, whether
such non conformity/compliance vitiates the trial. In dealing
with this argument, at paragraphs 10 and 11 of the judgment,
the Hon'ble Supreme Court held that where there is an
embargo under Sections 41 and 42 of the NDPS Act
empowering only a Gazetted Officer to authorize such search,
then notwithstanding the fact that the officer may have
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proceeded under the Code of Criminal Procedure, he was not
competent to conduct the search, not being designated with a
rank specified under the NDPS Act. To quote from the
judgment :
"15..... The object of NDPS Act is to make stringent provisions
for control and regulation of operations relating to those drugs
and substances. At the same time, to avoid harm to the innocent
persons and to avoid abuse of the provisions by the officers,
certain safeguards are provided which in the context have to be
observed strictly. Therefore these provisions make it obligatory
that such of those officers mentioned therein, on receiving an
information, should reduce the same to writing and also record
reasons for the belief while carrying out arrest or search as
provided under the proviso to Section 42(1). To that extent they
are mandatory. Consequently the failure to comply with these
requirements thus affects the prosecution case and therefore
vitiates the trial.
25. The questions considered above arise frequently before the
trial courts. Therefore we find it necessary to set out our
conclusions which are as follows :
(1) If a police officer without any prior information as
contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage Section 50 of the
NDPS Act would not be attracted and the question of
complying with the requirements thereunder would
not arise. If during such search or arrest there is a
chance recovery of any narcotic drug or psychotropic
substance then the police officer, who is not
empowered, should inform the empowered officer who
should thereafter proceed in accordance with the
provisions of the NDPS Act. If he happens to be an
empowered officer also, then from that stage onwards,
he should carry out the investigation in accordance
with the other provisions of the NDPS Act.
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(2-A) Under Section 41(1) only an empowered
Magistrate can issue warrant for the arrest or for the
search in respect of offences punishable under Chapter
IV of the Act etc. when he has reason to believe that
such offences have been committed or such substances
are kept or concealed in any building, conveyance or
place. When such warrant for arrest or for search is
issued by a Magistrate who is not empowered, then such
search or arrest if carried out would be illegal. Likewise
only empowered officers or duly authorized officers as
enumerated in Section 41(2) and 42(1) can act under
the provisions of the NDPS Act. If such arrest or search
is made under the provisions of the NDPS Act by
anyone other than such officers, the same would be
illegal.
(2-B) Under Section 41(2) only the empowered officer
can give the authorisation to his subordinate officer to
carry out the arrest of a person or search as mentioned
therein. If there is a contravention, that would affect the
prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has
a prior information given by any person, that should
necessarily be taken down in writing. But if he has
reason to believe from personal knowledge that offences
under Chapter IV have been committed or materials
which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry
out the arrest or search without a warrant between
sunrise and sunset and this provision does not mandate
that he should record his reasons of belief. But under
the proviso to Section 42(1) if such officer has to carry
out such search between sunset and sunrise, he must
record the grounds of his belief.
To this extent these provisions are mandatory
and contravention of the same would affect the
prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who
takes down any information in writing or records the
grounds under proviso to Section 42(1) should
forthwith send a copy thereof to his immediate official
superior. If there is total non-compliance of this
J Cri.APL-555-2021 & APL-695-2022.odt
provision the same affects the prosecution case. To that
extent it is mandatory. But if there is delay whether it
was undue or whether the same has been explained or
not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an
"empowered" officer while effecting an arrest or search
during normal investigation into offences purely under
the provisions of CrPC fails to strictly comply with the
provisions of Sections 100 and 165 CrPC including the
requirement to record reasons, such failure would only
amount to an irregularity.
(4-B) If an empowered officer or an authorised officer
under Section 41(2) of the Act carries out a search, he
would be doing so under the provisions of CrPC namely
Sections 100 and 165 CrPC and if there is no strict
compliance with the provisions of CrPC then such
search would not per se be illegal and would not vitiate
the trial.
The effect of such failure has to be borne in
mind by the courts while appreciating the evidence in
the facts and circumstances of each case.
(5) On prior information the empowered officer or
authorised officer while acting under Sections 41(2) or
42 should comply with the provisions of Section 50
before the search of the person is made and such person
should be informed that if he so requires, he shall be
produced before a Gazetted Officer or a Magistrate as
provided thereunder. It is obligatory on the part of such
officer to inform the person to be searched. Failure to
inform the person to be searched and if such person so
requires, failure to take him to the Gazetted Officer or
the Magistrate, would amount to non-compliance of
Section 50 which is mandatory and thus it would affect
the prosecution case and vitiate the trial. After being so
informed whether such person opted for such a course
or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal
with the steps to be taken by the officers after making
arrest or seizure under Sections 41 to 44 are by
themselves not mandatory. If there is non-compliance or
J Cri.APL-555-2021 & APL-695-2022.odt
if there are lapses like delay etc. then the same has to be
examined to see whether any prejudice has been caused
to the accused and such failure will have a bearing on
the appreciation of evidence regarding arrest or seizure
as well as on merits of the case."
25. In Roy V. D. (Supra), the Hon'ble Supreme Court
considered the legality of an arrest and search which was done
by an officer not empowered or authorized under Sections 41
and 43 of the NDPS Act, but who had conducted the entire
search and arrest purportedly under the Code of Criminal
Procedure. Whilst, considering the legality of the seizure, the
Hon'ble Supreme Court has also considered whether the High
Court could act in exercise of its inherent jurisdiction under
Section 482 of the Cr.P.C. to quash criminal proceedings which
are founded on investigations and seizures conducted not in
accordance with the procedure in special statue. After quoting
from Balbir Singh (supra), it held thus :
"16. Now, it is plain that no officer other than an empowered
officer can resort to Section 41(2) or exercise powers under
Section 42(1) of the NDPS Act or make a complaint under
clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It
follows that any collection of materials, detention or arrest of a
person or search of a building or conveyance or seizure effected
by an officer not being an empowered officer or an authorised
officer under Section 41(2) of the NDPS Act, lacks sanction of
law and is inherently illegal and as such the same cannot form
the basis of a proceeding in respect of offences under Chapter IV
J Cri.APL-555-2021 & APL-695-2022.odt
of the NDPS Act and use of such a material by the prosecution
vitiates the trial.
17. To the same effect is the view expressed by this Court in
State of Punjab v. Balbir Singh [1994 (3) SCC 299]. In para 13
Jayachandra Reddy, J. speaking for the Court observed thus :
"13. Therefore, if an arrest or search contemplated
under Sections 41 and 42 is made under a warrant
issued by any other Magistrate or is made by any officer
not empowered or authorised, it would per se be illegal
and would affect the prosecution case and consequently
vitiate the trial."
18. It is well settled that the power under Section 482 of the
Cr.P.C. has to be exercised by the High Court, inter alia, to
prevent the abuse of the process of any court or otherwise to
secure the ends of justice. Where criminal proceedings are
initiated based on illicit material collected on search and arrest
which are per se illegal and vitiate not only a conviction and
sentence based on such material but also the trial itself, the
proceedings cannot be allowed to go on as it cannot but amount
to abuse of the process of the court; in such a case not quashing
the proceedings would perpetuate abuse of the process of the
court resulting in great hardship and injustice to the accused. In
our opinion, exercise of power under Section 482 of the Cr.P.C.
to quash proceedings in a case like the one on hand, would
indeed secure the ends of justice."
26. In Jeewan Kumar Raut (supra), the Hon'ble Supreme
Court was considering the applicability of the provisions of the
Code in cases where a special statute such as the
Transplantation of Human Organs Act, 1994, had provided for
a procedure for investigation of an offence and designation of
an authority/officer to conduct such investigation. Whilst,
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considering and applying the principle of law in cases, where
procedures under statute conflict with those set out in a general
statute such as the code of criminal procedure, it has held thus :
"19. TOHO is a special Act. It deals with the subjects mentioned
therein, viz. offences relating to removal of human organs, etc.
Having regard to the importance of the subject only, enactment of
the said regulatory statute was imperative.
20. TOHO provides for appointment of an appropriate
authority to deal with the matters specified in Sub-section (3) of
Section 13 thereof. By reason of the aforementioned provision, an
appropriate authority has specifically been authorized inter alia to
investigate any complaint of the breach of any of the provisions of
TOHO or any of the rules made thereunder and take appropriate
action. The Appropriate Authority, subject to exceptions
provided for in TOHO, thus, is only authorized to investigate
cases of breach of any of the provisions thereof, whether penal or
otherwise.
26. It is a well-settled principle of law that if a special statute
lays down procedures, the ones laid down under the general
statutes shall not be followed. In a situation of this nature, the
respondent could carry out investigations in exercise of its
authorization under Section 13(3)(iv) of TOHO. While doing so,
it could exercise such powers which are otherwise vested in it.
But, as it could not file a police report but a complaint petition
only; Sub-section (2) of Section 167 of the Code may not be
applicable.
27. The provisions of the Code, thus, for all intent and purport,
would apply only to an extent till conflict arises between the
provisions of the Code and TOHO and as soon as the area of
conflict reaches, TOHO shall prevail over the Code. Ordinarily,
thus, although in terms of the Code, the respondent upon
completion of investigation and upon obtaining remand of the
accused from time to time, was required to file a police report, it
was precluded from doing so by reason of the provisions
contained in Section 22 of TOHO.
J Cri.APL-555-2021 & APL-695-2022.odt
28. To put it differently, upon completion of the investigation,
an authorized officer could only file a complaint and not a police
report, as a specific bar has been created by the Parliament. In that
view of the matter, the police report being not a complaint and
vice versa, it was obligatory on the part of the respondent to
choose the said method invoking the jurisdiction of the
Magistrate concerned for taking cognizance of the offence only in
the manner laid down therein and not by any other mode. The
procedure laid down in TOHO, thus, would permit the
respondent to file a complaint and not a report which course of
action could have been taken recourse to but for the special
provisions contained in Section 22 of TOHO."
27. Thus, in the above judgments, the Hon'ble Supreme
Court has reiterated the legal positions that where a special
statute specifically authorizes a particular officers, whether by
designation or by a rank to conduct investigation, search and
seizure, such investigation not done by designated officer would
vitiate the entire proceeding, including the filing of a final
report.
28. Whilst on the subject, we may also advert to a
judgment of this Court rendered in Sarvesh Kumar Shahi
(supra) cited by the prosecution to contend whether a search
and seizure or investigation conducted under the EC Act, 1955,
by Police Sub-Inspector under the Cr.P.C. was competent and
maintainable. In that case, we may note that the FIR was
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registered for the offences punishable under Sections 3, 7, 8 and
10 of the EC Act, Sections 2 and 3 of the 2005 Order and
under Sections 109, 114, 212, 407, 411, 420, 467, 468, 471 and
Section 120B of the IPC. The investigation in that case was
carried out by an Assistant Commissioner of Police and not by a
Deputy Superintendent of Police as was required under the EC
Rules. There is no doubt that in that judgment whilst referring
to the judgment in Roy V. D. (supra), this Court has held that
the search, arrest and investigation were not per-se illegal and
the same were not vitiated by the fact that the officer
conducting investigation proceeded under Section 100 and
under Section 165 of the Cr.P.C. We, however, note that in that
case, there was no independent challenge to the FIR or to the
scheme of the EC Act and the only effort sought to be made was
that the initiation of action against that applicant was illegal. We
also note that the judgment was rendered in the face of specific
Sections of the Indian Penal Code, quoted by us above which
were also been investigated, whilst in the present case, the only
provisions of the IPC which have been applied are Sections 188
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and 285 of the IPC. Section 188 deals with disobedient of an
order promulgated by public servant, in this case purporting to
be the 2005 Order while the provisions of Section 285
appeared to have been applied to claim an act done rashly or
negligently to endanger the human life by the applicant by
merely storing the petroleum product, for which the other while
had requisite permission, in oil tankers. We also note that in
Sarvesh Kumar Shahi (supra) that the FIR was registered prior
to commencement of investigation and the challenge was
thrown from the panchanama of seizure pursuant to the register
of the FIR without challenging the drawing of samples has been
contrary or in breach of any provision of law. In contrast, in the
present case, the entire initial investigation, search and seizure
took place under the authority and supervision of the Assistant
Police Inspector and the FIR/complaint came to be lodged at
the behest of this officer later on, when the seized samples were
forwarded for analysis.
We are, therefore, of the opinion that on facts, what
has been held in Sarvesh Kumar Shahi (supra) is not applicable
J Cri.APL-555-2021 & APL-695-2022.odt
to the present case.
29. In Indian Oil Corporation Limited (supra), the
Hon'ble Supreme Court was considering whether non
compliance with the procedure laid down in the 2005 Order
read with Section 100 of the Code, was mandatory and whether
Clause 7 thereof dealing search and seizure, if not complied
with, it would render the investigation a nullity. It has been
held:
"14. The first issue required to be examined is whether the
appellants were required to follow the procedure under the
Control Order read with Section 100 of the Code. The Control
Order has been issued under Section 3 of the Act. Such Act has
been enacted for control of the production, supply and
distribution and trade and commerce, of certain commodities. In
respect of High Speed Diesel and Motor Spirit, the Control Order
is issued for regulation of supply and distribution and prevention
of the malpractices. Section 6A of the Act provides for
confiscation of the essential commodity whereas, Section 7 of the
Act makes any person who contravenes any order made under
Section 3 liable for criminal prosecution. Therefore, we find that
the effect of issuance of the Control Order is that in the event of
violation of such Control Order, any person who contravenes any
order made under Section 3 of the Act i.e. the Control Order, he
is liable to be punished by a Court. Therefore, the violation of the
Control Order has penal consequences leading to conviction. The
provisions of search and seizure contained in Clause 7 read with
Section 100 of the Code will come into play only in the event a
person is sought to be prosecuted for violation of the provisions
of the Control Order. Admittedly, in the present case, the dealer is
not sought to be prosecuted for the violation of the Guidelines,
therefore, the procedure for drawing of samples which is a
necessary precondition under the Control Order for prosecuting
an offender does not arise for consideration.
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16. The Guidelines as mentioned in sub-clause (I) of Clause 2.5
of the Guidelines is to streamline the functioning i.e. the oil
companies should not arbitrarily or without any justification send
the sample for testing at their sweet will. The sample in this case
was drawn on 06.05.2013 and was sent for testing on 22.05.2013
i.e. there was a delay of 5 days. Since the Guidelines use the
timeline as a preferred time line, it cannot be said that the
timeline mentioned has to be strictly adhered to and is
mandatory. The language, the purport and the effect of testing do
not warrant to read the word 'preferably' as mandatory timeline.
It is not the case of the dealer that the sample sent after five days
will lose its efficacy as the umpire sample would be sent only after
the first report is confronted to the dealer. Still further, the dealer
has not raised any objections regarding delay in sending the
sample in the two replies submitted by him on 17.07.2013 and
02.01.2014. The argument that the umpire sample in the hands
of the dealer could not be tested because of sludge and to doubt
the other two samples is totally untenable. Such argument is
based upon conjectures as the other two samples collected and
sealed cannot be permitted to be disputed only because one
sample was found with sludge. There is no material to doubt the
correctness of the samples taken."
Thus, as held, issuance of the 2005 Control Order
and its violation by contravene Section 3 of the EC Act would
make the applicant liable to punishment with penal
consequence, and accordingly Clause 7 read with Section 100 of
the Code would come into play, if prosecution for such
violation was launched. Further, samples, if drawn ought to be
sent for testing within the timelines set out in the order, though
the same may not be mandatory, it is preferable that the same be
adhered to.
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30. A Single Judge of this Court, whilst considering
whether investigation conducted under the EC Act, by an
officer of the rank below a Police Inspector was authorized has
held thus :
"9. The learned counsel for the applicants further pointed out
that the seizure was carried out by the A.P.I. Sawale, who was not
authorised to make seizure. In this respect, the learned counsel
for the applicants pointed out that Notification dated 7-7-1994
has been issued by the Government of India, Ministry of
Petroleum and Natural Gas, New Delhi in pursuance of sub-
clause (c) of Clause 7 of the Kerosene (Restriction on Use and
Fixation of Ceiling Price) Order, 1993 whereunder all the police
officers not below the rank of Inspectors have been authorised to
take necessary action under the provisions of the said order
within their respective jurisdiction. It may be noted that Rule 9 of
the said Order provides that the Central Government may by
Notification authorize any officer to take action under the said
order. As pointed out above, the Notification dated 7-7-1994
authorizes the Police Officers not below the rank of Inspectors.
The investigating officer in the present case Mr. Sawale is
Assistant Police Officer and as such he was not authorised to take
action under the Order. Thus, the seizure was carried out by an
unauthorized officer on the basis of which FIR was registered and
charge-sheet was filed. The same is inherently illegal and cannot
form the basis of prosecution. In this respect, the learned counsel
for the applicants relied on (Roy V.D. v. State of Kerala, 2000(4)
Crimes 196 (SC), wherein it is held as under :
"Where criminal proceedings are initiated based on
illicit material collected on search and arrest which are
per se illegal and vitiate not only a conviction and
sentence based on such material but also the trial itself,
the proceedings cannot be allowed to go on as it cannot
but amount to abuse of the process of the court; in such
a case not quashing the proceedings would perpetuate
abuse of the process of the court resulting in great
hardship and injustice to the accused."
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10. The learned Counsel for the applicants also relied on
(Laxmikant Shankarlal Sarda v. State of Maharashtra and
another), 2002(2) Mh.L.J. 471, in which it was held that the
seizure and investigation by PSI was not legal, he being an officer
below the rank of Police Inspector.
11. The learned Counsel for the applicants lastly pointed out
that the charge-sheet discloses that an offence under Section 3
read with Section 7 of the Essential Commodities Act has been
committed by applicant Nos. 2 and 3. However, neither the
charge-sheet nor any documents filed with it disclose as to which
order was violated by the applicants so as to attract the provisions
of Section 7 of the Essential Commodities Act. In such situation,
the charge-sheet is liable to be quashed. In support of the
submission, the learned Counsel for the applicants relied on
(Kallol Kumar Mukherjee and others v. State of West Bengal),
1995 Cri.L.J. 654 (Cal)."
Thus, it has been held that wherein investigation,
search or seizure was conducted by officer below the rank of a
Police Inspector, the entire prosecution on the basis of such
investigation which was not authorized, cannot be sustained
and requires to be set aside.
31. In M/s. Ch. Yegnaiah and Sons (supra), the Andhra
Pradesh High Court had occasion to deal with a petition
invoking its power under Section 482 of Cr.P.C. for quashment
of a criminal complaint before a Magistrate for offence under
Section 7 of the EC Act and contravention of Clause 5 of the
1998 Motor Spirit and High Speed Diesel Order under that
J Cri.APL-555-2021 & APL-695-2022.odt
Act, on the ground that the search and seizure was conducted
by an officer below the rank of Deputy Superintendent of
Police. After referring to the specific procedures of the order
passed under Section 3 of the EC Act, the Andhra Pradesh
High Court has held thus :
"6. The learned Public Prosecutor has contended that the
Inspector of Police, Vigilance Cell, is a Gazetted Officer
authorized by the State to conduct check and seizure under the
provisions of the Essential Commodities Act. What is mentioned
is, the Police Officer who is a Gazetted Officer not below the rank
of Dy. Superintendent of Police can be authorized to make search
and seizure of petrol bunks. No doubt, an interpretation has to be
made drawn from the rule position extracted above. If the "every
police officer" is taken into consideration as Gazetted Officer,
there is no need to mention in the clause that a police officer not
below the rank of DSP shall investigate the case. If a police officer
has to be entrusted with search and seizure, the rule contemplates
that he should not be below the rank of DSP. It is not the case of
the respondent that the said Inspector is working as a Gazetted
Officer in the capacity of Police Officer not below the rank of
DSP. It is to be seen that he is acting as police officer for a
particular purpose. Obviously, the Vigilance Inspector only
performed the duties of police officer and not that of gazetted
officer. He is not authorized by the Government to conduct
seizure and check. Therefore authorization given by general or
special order to the Inspector of Vigilance in question does not
arise and he only performed the duties of police official.
Moreover he is designated as a police officer, not as a Gazetted
Officer. He has acted only in the capacity as police official. In that
view of the matter, search and seizure conducted by the Inspector
of Police, Vigilance Cell is bad, as he is not authorized to do so in
terms of the Clause-4 of the MS & HSD Order."
32. In Medipol Pharmaceutical India Private Limited
(supra), the Hon'ble Supreme Court was considering the
J Cri.APL-555-2021 & APL-695-2022.odt
provisions of the Drugs and Cosmetics Act, 1940 and the
valuable right of person sought to be penalized under such
statute to have the seized sample tested through an accredited
laboratory, and further whether considerable and unexplained
delay on the part of the authority to obtain test reports within
the time frame stipulated by the Rules would vitiate the entire
process of penalizing. We quote certain passages from this
judgment, where its principle has been considered :
"13. Though the aforesaid judgments pertain to criminal
prosecutions under the Drugs and Cosmetics Act, Prevention of
Food Adulteration Act and Insecticides Act, yet, they lay down
that a valuable right is granted to a person who is sought to be
penalized under these Acts to have a sample tested by the
Government Analyst that is found against such person, to be
tested by a superior or appellate authority, namely, the Central
Drugs Laboratory. These judgments lay down that if owing to
delay which is predominantly attributable to the State or any of
its entities, owing to which an article which deteriorates with time
is tested as not containing the requisite standard, any prosecution
or penalty inflictable by virtue of such sample being tested,
cannot then be sustained. We have seen that on the facts of this
case, the sample drawn and analyzed by the Government Analyst
was delayed for a considerable period resulting in the sample
being drawn towards the end of its shelf life. Even insofar as the
samples sent to the Central Drugs Laboratory, there was a
considerable delay which resulted in the sample being sent and
tested 8 months beyond the shelf life of the product in this case.
It is thus clear that the valuable right granted by Section 25 of the
Drugs and Cosmetics Act kicks in on the facts of this case, which
would necessarily render any penalty based upon the said analysis
of the sample as void.
J Cri.APL-555-2021 & APL-695-2022.odt
17. We have seen in the present case that the post-decisional
hearing proved to be an eyewash as the seven-member
Committee did not even refer to the findings of the appellate
report, which showed that the Government Analyst's report was
wholly incorrect, 61.96% being widely off the mark. Given the
fact that there is considerable unexplained delay on the part of the
Drug authorities and the Respondent resulting in the first and
second samples being tested late - the second sample being tested
8 months after its shelf life had expired - it is clear that the order
of blacklisting dated 21.02.2019, as confirmed by the order dated
18.09.2019, is infirm and is therefore, set aside. Concomitantly,
the impugned High Court judgment is also set aside."
Thus, where samples are required to be sent for
testing within a time frame, even though the same is not
mandatory but is directory, that such time frame are required to
be followed in spirit and if there is inordinate unexplained delay
on the part of the authorities sending the same for testing the
process itself of analysis may stand vitiated.
33. Recently, the Hon'ble Supreme Court in Avtar Singh
(supra) was considering whether investigation and a
prosecution launched by an officer below the rank specified
under Central Government Notification issued under Section 3
of the EC Act could be sustained. The Hon'ble Supreme Court
has held that since the entire action was taken by an officer of
the rank of Sub-Inspector, who was not authorized under the
J Cri.APL-555-2021 & APL-695-2022.odt
Government order, the entire search, seizure and investigation
must fail. We quote from that judgment as under :
"13. The facts in the case as noticed above as such, are not in
dispute. The only argument raised is about the power of the
person who had seized cylinder on the basis of which the
appellants were prosecuted. Clause 7 of the Order, which is
reproduced hereunder, prescribes officers who have the power.
' 7. Power of entry, search and seizure:-
(1) an officer or the Department of Food and Civil
Supplies of the Government, not below the rank of an
Inspector authorised by such Government and notified
by Central Government or any officer not below the
rank of a Sales Officer of an Oil Company, or a person
authorized by the Central Government or a State
Government and notified by the Central Government
may, with a view to ensuring compliance with the
provisions of this Order, for the purpose of satisfying
herself that this order or any order made thereunder
has been complied with:
(a) Stop and search any vessel or vehicle which the
Officer has reason to believe has been, or is being or is
about to be, used in the contravention of this Order;
(b) Enter or search any place with such aid or assistance
as may be necessary;
(c) Seize and remove with such aid or assistance as may
be necessary, the entire quantity of any stock of
liquefied petroleum gas in cylinders, cylinder valves
and pressure regulators, alongwith the vehicles, vessels
or any other conveyances used in carrying such stock if
he has reason to suspect that any provision of this
Order has been or is being or is about to be,
contravened in respect of such stock and thereafter take
or authorise the taking of all measures necessary for
securing the production of the stock of liquefied
petroleum gas in cylinder, cylinders, gas cylinder
valves, pressure regulators, vehicles, vessels or other
conveyances so seized before the Collector having
J Cri.APL-555-2021 & APL-695-2022.odt
jurisdiction under the provisions of section of the
Essential Commodities Act, 1955 (10 of 1955) and for
their safe custody pending such production.......'
14. It nowhere prescribes that a Sub-Inspector of the Police can
take action. No doubt, the aforesaid Clause provides that in
addition to the specified officers, the persons authorised by the
Central or State Government may take action under the Order.
However, nothing has been placed on record to support the
argument that the Sub Inspector of the Police was authorised to
take action under the aforesaid Order.
15. It is a settled law that where a power is given to do a certain
thing in a certain way, the thing must be done in that way or not
at all. Other methods are necessarily forbidden. Reference can be
made to Dharani Sugars and Chemicals Ltd. Vs. Union of India
and Ors. reported in (2019) 5 SCC 480.
16. In the absence of the authority and power with the Sub-
Inspector to take action as per the Order, the proceedings initiated
by him will be totally unauthorised and have to be struck down."
34. A reading of the above case law would lead us to the
conclusion that when the EC Act and the Petroleum Act being
special statutes, similar to the case as in the NDPS Act, it is only
an officer specifically empowered under that statute that has the
authority to carry out investigation which includes the power to
search and seize. Further, it would be only the authorized officer
under these Acts, who would be required to carry out the
seizure of the material in accordance with the manner
prescribed under these two statutes i.e. in terms of the 2005
Order read with 2017 Order under the EC Act and in terms of
J Cri.APL-555-2021 & APL-695-2022.odt
the Petroleum Rules, under the Petroleum Act.
35. The offences alleged to have been committed by the
applicants in the Final Report are under Sections 3 and 7 of the
EC Act read with the 2005 and 2017 Orders issued by the
Central Government under the EC Act. It appears from the
record that initially, the Assistant Police Inspector conducted a
raid on secret information received by him on 22.12.2021
under Sections 3 and 7 of the EC Act, on the premise that the
applicants had stored Bio-Diesel in the tankers. After obtaining
the nine samples, he registered an FIR on 23.12.2021, in terms
of the above Sections.
Under the 2005 Order an authorized officer being
one authorized under the provision Clause 7 thereof would
require to have a rank not below Deputy Superintendent of
Police duly authorized by general or special order of the State
Government. Thus, to proceed with a search or seizure under
the EC Act in relation to any product specified in the 2005
Order or in relation to a malpractice concerning the
adulteration, supply, distribution or prevention of such acts in
J Cri.APL-555-2021 & APL-695-2022.odt
relation to these products, only an officer of the rank of Deputy
Superintendent of Police or above specifically authorized in that
behalf by the State Government could enter, conduct the search
and take samples under Clause 7 of the 2005 Order.
In the present case, the officer who proceeded on the
basis of secret information received by him to commence the
investigation by conducting a search and seizure and obtaining
samples of the product, was of a rank of Assistant Police
Inspector, which was two ranks below the rank of Deputy
Superintendent of Police, apart from the fact that from the
record, he had no authorization from the State Government, in
terms of the provisions of the EC Act to act in the matter.
36. The 2017 Order includes a new Clause 6A into the
2005 Order including Bio-Diesel for blending high speed diesel
amongst the product covered in the 2005 Order.
Even when the search and seizure is carried out by an
officer not below the rank of Deputy Superintendent of Police,
the procedure for sampling of the product is set out in Clause 8
J Cri.APL-555-2021 & APL-695-2022.odt
of the 2005 Order, which requires the officer to take six samples
of one litre each in case of motor spirit or three samples of one
litre each in case of high speed diesel of which one of the
samples shall be given to the dealer or transporter and one
sample is to be sent for testing within ten days to any of the
laboratories specified in Schedule III of the 2005 Order. In the
present case, even assuming the officer who conducted the raid
was authorized, the samples seized are not in accordance with
the mandate of Clause 8 of the 2005 Order, since he has
collected samples of only 750 ml each, that to for testing them
as bio-diesel. We are of the opinion that where a provision of
law mandates a representative sample to be of one litre, any
sample taken of a lessor quantity, not in accordance with what
the provision sets out as a representative sample, could not be
relied upon in evidence at a trial.
37. We further find, that in the case of collection of
samples, both, on 22.12.2021, and on 07.07.2022, apart from
the fact that the samples collected were not in accordance with
the quantity specified to be a representative sample, the timeline
J Cri.APL-555-2021 & APL-695-2022.odt
specified under the 2005 Order and under the Petroleum Act
have not been adhered to or delays in sending the samples for
analysis to a laboratory being explained.
The first set of samples which was of 750 ml each,
being below the required representative quantity of one litre was
collected on 22.12.2021, but was sent to the laboratory about
40 days, thereafter on 02.02.2022, in contravention of the
requirement of Clause 8 of the 2005 Order under which 10
days are specified for the samples to be sent for analysis. The
second set of samples was drawn on 07.07.2022 and sent for
testing on 27.09.2022 to the Forensic Science Laboratory at
Amravati about 80 days after they were drawn in complete
violation of Clause 8 of the 2005 Order. The charge-sheet was
filed on 04.10.2022 while the second set of samples was tested
by the Laboratory only on 05.02.2023 more than six months
after their collection and report to that effect was released on
17.02.2023. Even considering that the timeline specified in the
Clause 8 of the 2005 Order are directory in nature, on the face
of it, there is inordinate delay in submitting both the samples
J Cri.APL-555-2021 & APL-695-2022.odt
for chemical analysis. Such samples, having been retained before
analysis for considerable period of time would be unreliable in
their composition for proof of their chemical content for
considering them to be in contravention of the provisions of
both EC Act and the Petroleum Act. Though, this by itself may
not be the sole factor to be considered for a decision whether an
offence made out, it is certainly a factor that would lead us to
believe that a trial would end in a failure to prove the content of
the samples, merely on the period that they were not sent for
analysis.
38. We note, that though the FIR has been registered
under Sections 3 and 7 of the EC Act, the Final Report has
been filed also invoking the provisions of Sections 3, 4 and 23
of the Petroleum Act.
Section 3 prohibits the transport or storing of any
petroleum, same in accordance with the rules made under
Section 4 of the Act. Section 23 of the Act provides for
penalties for contravention of any of the rules made under
J Cri.APL-555-2021 & APL-695-2022.odt
Section 4 or Section 5 of the Act. Thus, the charge-sheet must
proceed on the basis of specific allegations contained in the FIR
or investigation that sets out facts constituting infraction of a
particular rule framed under Section 4 of the Petroleum Act and
such investigation is required to be carried out by an officer
authorized under the Petroleum Act, 1934. In terms of the
powers of the Central Government under Section 4 of the
Petroleum Act, the Petroleum Rules of 2002, more specifically
Rule 186 requires the officer taking the samples in two bottles
each of capacity of one litre and forward the same to the testing
officer. At the time the initial search and seizure was done on
22.12.2021, where representative samples of 750 ml each were
drawn by the Assistant Police Inspector, no investigation was
conducted in terms of the provisions of the Petroleum Act.
However, at a later stage i.e. on 12.06.2022, additional charges
were framed under Sections 3, 4 and 23 of the Petroleum Act
and thereafter another Assistant Police Inspector visited the site,
where the three tankers were stationed and on 07.07.2022, took
samples of the very same product, under a panchanama of the
J Cri.APL-555-2021 & APL-695-2022.odt
same date, this time of one litre each numbering three in all and
sent the same to the RFSL at Amravati.
Under the provisions of Rule 186 of the Petroleum
Rules, two bottles, each of a capacity of one litre shall be taken
as samples, to be considered representative samples of the
product.
39. In terms of Rule 198(1)(c) of the Petroleum Rules,
the officers authorized to enter, inspect and search any place,
where they have reason to believe that any petroleum product
has been transported or stored in contravention of the
Petroleum Acts or Rules are specified. Under Rule 198, it is
only a police officer not below the rank of a Police Inspector
who would have the jurisdiction and authority to conduct a
search for petroleum or to take samples for testing of petroleum
or to seize or detain such petroleum. In the present case, we
note that it was an officer of the rank of an Assistant Police
Officer, who was not obviously authorized in terms of Rule 198
conducted the search, seizure and taking of samples for testing
J Cri.APL-555-2021 & APL-695-2022.odt
of petroleum product on 07.07.2022. Even assuming the first
set of samples taken on 22.12.2021 were to be considered, the
same were taken by an Assistant Police officer who was
obviously not authorized to act in the matter.
40. Thus, the power to conduct a search and seizure is
vested, both under the EC Act and the 2005/2017 Orders made
thereunder or under the Petroleum Act and Rules made
thereunder is vested either in a officer not below the rank of the
Deputy Superintendent of Police or Police Inspector, as the case
may be, while the officer who undertook the search and seizure
at both points of time i.e. on 22.12.2021 (before FIR was
lodged) and on 07.07.2022 (when Sections 3, 4 and 23 of the
Petroleum Act were applied) were of the rank of Assistant Police
Inspector. Applying the ratio laid down in Avtar Singh (supra),
where it is held that it is a settled law that where power is given
to do a certain thing in a certain way, other methods are
necessarily forbidden, and in the absence of authority and
power with an Assistant Police Inspector to take action as per
the 2005 Order or as per the Petroleum Rules, the proceedings
J Cri.APL-555-2021 & APL-695-2022.odt
initiated on that basis are unauthorized and have to be stuck
down. Consequently, all proceedings consequent to the search
and seizure carried out on 22.12.2021 leading to the lodging of
FIR on 23.12.2021 and filing of the final report, for the offences
under Sections 3 and 7 of the EC Act, under Sections 3 and 4
read with Section 23 of the Petroleum Act, 1934 and under the
Motor Spirit and High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Order 2005 and
Motor Spirit and High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Amendment
Order 2017, a liable to be quashed and set aside in exercise of
our inherent jurisdiction under Section 482 of the Cr.P.C.
41. With regard to the launching of the prosecution on
the basis of the seizures which were unauthorized and charging
the applicants for offences under Sections 188, 285 read with
Section 34 of the IPC, these offences have been added to the
charge-sheet purportedly for disobedient of orders promulgated
by public servant or for offences, claim to arise under Section
285 of a negligent conduct with fire a combustible material
J Cri.APL-555-2021 & APL-695-2022.odt
such as to endanger human life. The FIR and charge-sheet
appeared to be silent as to which order promulgated by a public
servant has been breached by the applicants to attract the
provisions. Assuming the same refers to the 2005/2017 Orders
under the EC Act, the same would relate back to the question of
authorization of the officer who was conducted a seizure on the
basis of offence has been alleged. Thus, the provisions of
Section 188 of the IPC would not arise in this Case.
42. We also take note of the fact that after the first sample
was drawn and seizure was conducted by unauthorized officer
on 22.12.2021, proceedings were taken before the Collector of
Akola under the EC Act by a report of the seizure sent to that
authority; an order dated 14.07.2022, was passed by the
Collector, Akola in terms of Section 6A of the EC Act, wherein
the Authority (Collector) has arrived at a finding that the
concerned tankers contained mixed hydrocarbon oil and not
bio-diesel, as was initially claimed by the prosecution and
consequently all three confiscated vehicles along with the
product contained therein were released. Reference is made to
J Cri.APL-555-2021 & APL-695-2022.odt
the collection of the very same material by the Assistant Police
Inspector in that order. The second set of samples was taken by
an Assistant Police Inspector on 07.07.2022, this time
proceeding on the basis that the product was covered under the
Petroleum Act. Surprisingly, after the Collector having released
the vehicles on 14.07.2022 concluding that the product, based
on the first report of chemical analysis was a mixed hydrocarbon
oil and not bio-diesel as claimed, instead of desisting from
proceeding further in their investigation, the prosecution
proceeded to file a charge-sheet including therein allegations
under Sections 3, 4 and 23 of the Petroleum Act. This was done
in the face of the second report dated 17.02.2023 wherein an
opinion is recorded that the sample does not meet the
specifications/standards for Bio-Diesel and hence rejected.
There being no specific allegation that the product
was stored in any manner contrary to the provisions of the
Petroleum Act, the facts stated in the complaint do not allege
any case made out under the provisions of Section 285 of the
IPC.
J Cri.APL-555-2021 & APL-695-2022.odt
43. For all the above reasons, this is a fit case for
interference in our inherent jurisdiction under Section 482 of
the Cr.P.C., and to allow both criminal applications bearing
APL No.555 of 2022 and APL No.695 of 2022. We hereby
quash and set aside the FIR in Crime No.1203 of 2021 dated
23.12.2021, registered with Khadan Police Station, District
Akola and connected Final Report dated 04.10.2022 in RCC
No.1242 of 2022.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
TAMBE
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 08/09/2023 17:10:13
