Madras High Court
Venkatesan @ Venkatesh vs State Represented By on 6 January, 2023
Crl.O.P No.17889 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.O.P Nos.17889 of 2021
and Crl.M.P. No.9825 of 2021
Venkatesan @ Venkatesh ... Petitioner
Vs.
1. State represented by
The Deputy Superintendent of Police,
CSCID, Salem.
2. Annapoorani ... Respondents
Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, to call for the records and quash the proceedings as against
the petitioners in Crime No.113 of 2021 pending on the file of the first
respondent.
For Petitioners : Mr.Mohamed Riyaz
For Respondent-1 : Mr. A.Gopinath
Government Advocate (crl.side)
ORDER
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Crl.O.P No.17889 of 2021
This petition has been filed to call for the records in Crime No.114 of
2021 pending on the file of the first respondent and quash the same as against
the petitioner.
2. The petitioner is the sole accused. The case of the prosecution is that
on 05.08.2021, the defacto complainant who was the then Tahsildar of
Kadayampatti Taluk, Salem, received an information about the sale of
adulterated diesel at Kethunaicketpatti Puthur Village from a diesel tanker
lorry; when he went to the said spot at about 08.00 hrs along with a team
comprising of Revenue Inspector, Village Administrative Officer, Inspector
of Police, Theevattipatti and the accused was found to be unloading
adulterated diesel from tanker lorry bearing Reg. No.TN-39-CD-2323 and
filling it in a barrel in the land belonging to one Geetha; after conducting due
search and seizure, the defacto complainant has given a complaint to the first
respondent and on the basis of which a case has been registered in Cr. No.113
of 2021 for the offence under Section 3(4) of Motor Spirit and High Speed
Diesel (Regulation of Supply and Distribution and Prevention of
Malpractices) Order, 2005 and 7(1)(a)(i) of Essential Commodities Act, 1955.
3. The learned counsel for the petitioner submitted that as per Clause 7
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Crl.O.P No.17889 of 2021
of Motor Spirit and High Speed Diesel (Regulation of Supply and
Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred
to as 'the order', issued in view of the powers conferred by Section 3 of the
Essential Commodities Act, 1955, the authorised person who has the power of
search and seizure in these types of case is a police officer not below the rank
of Deputy Superintendent of Police duly authorised by general or special
order of the Central Government or State Government as the case may be.; in
the case on hand, the search and seizure was done by a person who held the
post of Tahsildar which is illegal; as per Clause 8(4) of the order, the
authorised officer shall forward a sample of the product taken within ten days
to the laboratories mentioned in Schedule III of the order or any other
authorised laboratory notified by the Government and the laboratory shall
furnish the report to the authorised officer within a period of twenty days of
the receipt of the sample and a copy of the test result shall be communicated
to the concerned person involving in the offence within a period of five days
from the date of receipt of the same; since the mandatory statutory
requirements have been violated, the entire proceedings get vitiated and hence
the FIR should be quashed.
4. The learned Government Advocate (Crl.side) submitted that samples
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Crl.O.P No.17889 of 2021
were collected by the Deputy Superintendent of Police after the compliant
was given and he had sent the sample to the Director, Indian Institute of
Technology, Chennai for chemical analysis through Court on 08.10.2021 and
the analysis report was received on 23.09.2022; as per Section 5 of the
Essential Commodities Act, 1955 the Inspector of Police can be delegated
with the powers in relation to the matters falling under the Essential
Commodities Act and hence there is no legality in the proceedings; the
proceedings cannot be quashed merely on the ground that investigation is not
valid.
5. In support of his above contention he relied on the judgment of the
Hon'ble Supreme Court in R.A.H.Siguran Vs. Shankare Gowda @ Shankara
and another reported in (2017) 16 SCC and H.N.Rishbud Vs. State (UT of
Delhi) reported in AIR 1955 SC 196.
6. As it appears from the order, it is seen that the power of search and
seizure has been explicitly given only to a police officer not below the rank of
Deputy Superintendent of Police duly authorised by the Central Government
or State Government as the case may be. In the case on hand, the search and
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Crl.O.P No.17889 of 2021
seizure has been conducted by the Tahsildar / defacto complainant herself and
the seized articles have been handed over to the police at the time of giving
the complaint. Even according to the counter affidavit filed by the first
respondent, the Investigation Officer has only collected sample from the
alleged adulterated diesel. The core part of the act of search and seizure has
been done by the Tahsildar and not by the police officer. The law
contemplates that after such seizure was made by a authorised person, the
seized stocks should be produced before the Collector or District Magistrate
who has the jurisdiction under the provisions of the Essential Commodities
Act, for safe custody. In fact Clause 7 of the order mandates an exhaustive
procedure under which the search and seizure should be done in these type of
cases.
7. The learned counsel for the petitioner attracted the attention of this
Court to the judgment of this Court held in Hindustan Petroleum
Corporation Limited Vs. Geetha Kasturirangan reported in 2010 SCC
OnLine Mad 2551 wherein it is held that if the search and seizure was done
by the authority not authorised in the Government Order, all consequential
action would become unlawful.
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Crl.O.P No.17889 of 2021
8. It is seen that the sample has been sent to the laboratory only on
08.10.2021. As stated already Clause 8(4) of the order mandates that a sample
of the product seized should be sent to the laboratory within a period of ten
days. The seizure was made on 05.08.2021 but the sample was sent for
chemical analyst only on 08.10.2021, which is beyond ten days. As per Clause
8(6) of the said order the authorised officer shall communicate the test results
to the accused within a period of five days. Even though it is submitted that
the test results have been obtained on 23.09.2022, a copy of the same was not
furnished to the accused till now. In fact the rule also mandates that the
laboratory has to give its analyst report within a period of twenty days of
getting the sample for analysis. But in the instant case, despite the sample has
been sent on 08.10.2021, the analysis report has been sent only on 23.09.2022
which is nearly after a delay of one year.
9. The very object of prescribing time limit to send the sample for
analysis and get the test results in a prescribed time is to see that no further
contamination is occurred in chemical products. Unless the mandatory time
limits are complied, the test results will be unreliable. The object of
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Crl.O.P No.17889 of 2021
prescribing time limit for furnishing the copy of the analysis report to the
accused is to enable him to retest the sample by sending it to referral
laboratory. The delay occurred in each stage of investigation has deprived the
accused from availing due opportunity to defend his case.
10. Since the mandatory procedure and the prescribed time limit has
been violated, the entire proceedings would get vitiated and no purpose will
be served if the investigation is allowed to be continued. Hence, I feel it is a
fit case where the powers of this Court under Section 482 Cr.P.C. should be
exercised to quash the FIR.
11. Accordingly, this Criminal Original Petition is allowed and the FIR
in Cr. No.113/2021 on the file of the first respondent is quashed. Connected
miscellaneous petition is closed.
06.01.2023
Index : Yes/No
Speaking Order : Yes / No
bkn
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Crl.O.P No.17889 of 2021
R.N.MANJULA, J.,
bkn
To:
1. The Inspector of Police,
Naduvattam Police Station,
Naduvattam, Udhahamandalam Taluk,
Nilagiri District.
2. The Public Prosecutor,
High Court, Madras.
Crl.O.P No.17889 of 2021
06.01.2023
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