Rajasthan High Court - Jodhpur

Ram Kumar vs State Of Rajasthan on 4 August, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2155/2019

Ram Kumar S/o Shri Hari Ram, Aged About 31 Years, B/c Jat, R/o W.no. 06, Hardaswali, P.s. Rawatsar, District Hanumangarh. (Raj.)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Hemant Jain For Respondent(s) : Mr. Arun Kumar, Public Prosecutor

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

04/08/2021

1. In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

2. Counsel for the parties jointly submit that the controversy

involved in this case is squarely covered by the judgment passed

by this Court in S.B. Criminal Misc. Petition No.2430/2019

(Kashi Ram Vs. State of Rajasthan & Ors.) decided on

11.09.2019, the judgment reads as under :-

"1. The petitioner has preferred this criminal misc. petition under

Section 482 Cr.P.C. claiming the following reliefs:

"1. The impugned order dated 12.03.2019 & 15.03.2019 (Annexure-1) passed by the learned Chief Judicial Magistrate Sriganganagar in Criminal Case No. 405/2018 may kindly be declared illegal and be quashed and set aside and the petitioner may be

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discharged from the charges framed against him; and

2. The Charge sheet filed by the Police against the petitioner in relation to FIR No. 171/2018 registered at P.S. Suratgarh District Sriganganagar may kindly be quashed and set aside; and

3. The proceeding pending before learned Chief Judicial Magistrate, Sriganganagar in the form of Case No.405/2018 may kindly be quashed and set aside with consequential relief by directing that the seized vehicle as also the cost of the diesel allegedly recovered from the petitioner may be released unconditionally and forthwith in favour of the humble petitioner."

2. Brief facts of the case are that while the police officials

were on routine round on 4.4.2018, they were informed that the

petitioner Kashi Ram is engaged in bringing diesel from Punjab

and selling it at Suratgarh, illegally. On this, a decoy was sent for

purchasing 5 ltrs. Diesel from the petitioner's shop. On finding the

information to be correct, a raid was conducted and a total of

1030 ltrs diesel was found in plastic drums and the petitioner

could not produce any bill.

3. After usual formalities and preparing the seizure memo,

an FIR No.171/2018 was registered at Police Station Suratgarh,

District Sri Ganganagar against the petitioner for the offence

under Section 3/7 of E.C. Act. After investigation, charge sheet

was filed before Chief Judicial Magistrate, Sri Ganganagar where

criminal case No.405/2018 was registered and the cognizance was

taken against the petitioner for the offence under Section 3/7 of

the E.C. Act. Thereafter, charges were framed against the

petitioner for the aforesaid offence.

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4. Learned counsel for the petitioner has relied upon the

judgment of Balveer Vs. State of Rajasthan passed in S.B.

Criminal Misc. Petition No.1206/2016 decided on 10.08.2017.

The judgment reads as follows:

"1. These criminal misc. petitions under Section 482 Cr.P.C. have been preferred against the order dated 07.11.2009 passed by learned Chief Judicial Magistrate, Hanumangarh in Criminal Case No.852/2009, whereby the learned Magistrate took cognizance against the petitioner for the offence under Section 3/7 of the Essential Commodities Act and against the order dated 07.04.2011 passed by learned Chief Judicial Magistrate, Hanumangarh, whereby the learned Magistrate framed the charges against the petitioner for the offence under Section 3/7 of the Essential Commodities Act; for quashing the proceeding in Criminal Case No.447/2011 under Section 3/7 of the Essential Commodities Act read with Section 120-B IPC in FIR No.91/2006 dated 28.07.2006 registered at Police Station, Khedapa, District Jodhpur pending in the Court of learned Chief Judicial Magistrate, Jodhpur District and; for quashing the proceeding in Criminal Case No.445/2011 under Section 3/7, 8 of the Essential Commodities Act read with Section 120-B IPC in FIR No.90/2006 dated 28.07.2006 registered at Police Station, Khedapa, District Jodhpur pending in the Court of learned Chief Judicial Magistrate, Jodhpur District.

2. Learned counsel for the petitioners submit that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Karamjeet Singh Vs. State of Rajasthan (S.B.Criminal Revision Petition No.1361/2014 alongwith six other connected matters, decided on 02.02.2016), wherein the following order had been passed:-

" These revisions arise out of identical proceedings of confiscation of diesel and vehicles pursuant to seizures effected by the officers of the District Food and Civil Supplies Department, Sri Ganganagar under the provisions of the E.C. Act on different dates. Since identical questions of facts and law are involved in these revisions, the same are being decided by this common order.

Enforcement Officers working under the District Supply Officer, Sri Ganganagar seized diesel exceeding 1,000 ltrs. from different vehicles owned by the present petitioners on different dates under the provisions of Rajasthan Petroleum Products (Licencing and Control) Order, 1990 (hereinafter referred to as "the Order of 1990) and Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as "the Order of 2005). Proceedings under Section 6A of the Essential Commodities Act were instituted before the District Collector, Sri Ganganagar for confiscation of the seized vehicles as well as the seized diesel. The District Collector confiscated the vehicles and directed that the same shall be released to the respective registered owners upon depositing the fine quantified in each case. The seized diesel was also directed to be confiscated and auctioned. The petitioners preferred appeals against the orders of confiscation which too have been decided against them by the learned Sessions Judge, Sri Ganganagar upon which, these revisions have been preferred. The details of the orders passed in the various matters are noted hereinabove:

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 S            Cr. Rev.No.                 Order of             Order    of
 N                                        Dist.                Sessions
 o.                                       Collec.              Court.

 1            1361/2014                   12/05/14             01/09/14

 2            909/2014                    05/05/14             26/07/14

 3            1244/2014                   27/06/14             15/10/14

 4            396/2015                    05/12/14             03/02/15

 5            413/2015                    05/12/14             04/02/15

 6            623/2015                    05/12/14             23/01/15

 7            1060/2015                   11/05/15             17/06/15

Shri Sandhu and Shri Jain, learned counsel representing the petitioners, placed reliance on the judgment rendered by this Court in the case of Jangir Singh & Ors. vs. State of Rajasthan reported in 2014(2) Cr.L.R. 942 and urged that the controversy involved herein is squarely covered by the ratio of the aforesaid judgment and thus, the revisions deserve to be allowed and the orders of confiscation of the vehicles as well as diesel passed by the District Collector and the appellate court's orders deserve to be quashed and set aside. They contend that the subject matter of the seizure is covered by two Control orders issued by the Government of India;

(i) Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as "the Order of 2005) and

(ii) Petroleum Products (Maintenance of Production, Storage and Supply) Order, 1999 (hereinafter referred to as "the Order of 1999).

These orders as well as the State Government's Control Order of 1990 have all been issued under Section 3 of the E.C. Act. They submit that the Central Government's Control Orders would have an over-riding effect on a Control order issued by the State Government as they all cover the same subject. They rely on the notification dated 10.04.2006 issued by the State Government under the Control Order, 2005 whereby, officers not below the rank of Additional DSO have been authorised to take action under the said Control Order. They further contend that under the Control Order of 1999, retail sale of petroleum products upto 2500 ltrs. is permissible to one person at a time. Thus, they contend that the restriction contained in the State Government's Control order, 1990 putting a cap. of 1,000 ltrs. on possession, storage and sale of petroleum products runs contrary to the Central Government Control Orders. They urged that admittedly the seizures in question were made by the Enforcement Officers who are not authorised to act under the Central Government's Control Orders, 2005 and 1999 and therefore, the whole search and seizure proceedings are vitiated and consequently, the orders of confiscation passed by the District Collector and the appellate court's orders are totally illegal and deserve to be set aside. They further contend that the diesel was seized while it was in the process of being transported and therefore

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also, the Control Order of 1990, which only deals with storage, has no application to the cases at hand.

Per contra, the learned Public Prosecutor assisted by the Shri Harbhajan Singh, District Supply Officer, Sri Ganganagar, vehemently opposes the submissions advanced by the counsel for the petitioners and urges that the Order of 1990 has not been repealed till date. By way of a notification issued under this Order, the State Government has imposed a restriction on storage of petroleum products in excess of 1000 ltrs. Under Clause 22 of the said Control Order, an officer in the rank of Enforcement Officer is authorised to effect search and seizure. Thus, they submit that no illegality is reflected in the action of the Enforcement Officers concerned in effecting search and seizures in the cases at hand and thus, the orders passed by the District Collector as well as the learned Sessions Judge being just and proper, do not require any interference by this Court.

I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on the record.

The controversy involved in the cases revolves around the applicability of the three Control Orders, two of which were issued by the Government of India in the years 1999 and 2005 and the third being the State Government's Control order issued in the year 1990. All the three Control orders were issued under Section 3 of the E.C. Act and prescribe the modes of search and seizure whenever, a violation of law is detected in relation to storage, sale or transportation, etc. of petroleum products. Applying the principle of statutory interpretation, it cannot be disputed that when, there exist Central as well as State legislations on the same subject, the Central Government's legislation would hold sway over the State Government's legislation. The State Government itself has issued a notification dated 10.04.2006 under the Control order of 2005 authorising officers not below the rank of Additional DSOs of the Food and Civil Supplies Department to perform the duties under the said Control order. An identical controversy was examined by this Court in the case of Jangir Singh (supra) and it was held that the Control order issued by the Central Government in the year 2005 would have an over-riding effect over the Control order of 1990 issued by the State Government. The Court also took note of the difference between the terms 'transport' and 'storage' and held that the action of carrying goods in a vehicle cannot be covered within the term storage. The Court concluded that when the offender was found transporting diesel in excess of 1,000 ltrs. in a vehicle, it could not be accepted that vehicle was being used for storage thereof. The Court went on to hold that an Enforcement Inspector is not authorised to effect seizures under the Control order of 2005 and thus, the entire seizure proceedings were held to be vitiated. The same is the situation in the cases at hand. Admittedly, the seizure of diesel in excess of 1,000 ltrs., which was made from different vehicles in the process of transportation, was effected by the Enforcement Officers concerned. Thus, indisputably, the seizures were carried out by officers, who were not authorised to do so under the Control Orders of 2005 and 1999 and consequently the seizure as well as the confiscation proceedings are totally vitiated.

As a consequence of the above discussion, the orders of confiscation passed by the District Collector, Sri Ganganagar and the

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orders passed by the learned Sessions Judge rejecting the appeals filed by the respective cases, noted above, are hereby quashed and set aside as being illegal. The vehicles in question, if already not returned till date, shall be returned back to the respective persons. In case, the concerned person has deposited the amount of fine in terms of the order passed by the District Collector for getting possession of the vehicle, the same shall be reimbursed to such person forthwith alongwith interest at the rate of 6% per annum calculated from the date of the deposition of fine till the date of reimbursement. The seized diesel has reportedly been sold. The sale proceeds shall be reimbursed to the concerned person after applying the interest at the rate of 6% per annum from the date of sale till the date of reimbursement.

The revision petitions are allowed in the above terms. Stay applications stand disposed of.

A copy of this order be placed in each file."

3. Learned Public Prosecutor states that firstly, these are second petitions under Section 482 Cr.P.C., which have been preferred after a delay of twelve years; secondly, the petitioners have liberty to take up their respective issues at the time of framing of charges and; thirdly, in the present cases, the jurisdiction lies with the State of Rajasthan.

4. Learned counsel for the petitioners further state that the charges have not been framed and thus, the trial will be futile.

5. Heard the learned counsel for the parties and perused the record of the case alongwith the aforequoted judgment rendered by a coordinate Bench of this Court.

6. The earlier petition being S.B.Criminal Misc. Petition No.493/2011 (Pankaj Kumar Sardana & Anr. Vs. State of Rajasthan, decided on 19.04.2012), which was partly allowed and the petitioners were in fact directed to furnish bail bonds to the satisfaction of the learned trial court and were to be released on bail accordingly. Thus, the petitioners were available for further proceedings.

7. In light of the aforesaid discussion as well as the aforequoted precedent law, the present misc. petitions are allowed. The order dated 07.11.2009 passed by learned Chief Judicial Magistrate, Hanumangarh in Criminal Case No.852/2009; order dated 07.04.2011 passed by learned Chief Judicial Magistrate, Hanumangarh; the proceeding in Criminal Case No.447/2011 under Section 3/7 of the Essential Commodities Act read with Section 120-B IPC in FIR No.91/2006 dated 28.07.2006 registered at Police Station, Khedapa, District Jodhpur pending in the Court of learned Chief Judicial Magistrate, Jodhpur District and; the proceeding in Criminal Case No.445/2011 under Section 3/7, 8 of the Essential Commodities Act read with Section 120-B IPC in FIR No.90/2006 dated 28.07.2006 registered at Police Station, Khedapa, District Jodhpur pending in the Court of learned Chief Judicial Magistrate, Jodhpur District are quashed and set aside. "

5. Learned counsel for the petitioners further states that

the facts of the present case are similar to that of Balveer Singh

(supra).

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6. In light of the aforequoted judgment, the present misc.

petition is allowed. The orders dated 12.3.2019 and 15.03.2019

passed by learned Chief Judicial Magistrate, Sri Ganganagar and

all the proceedings pending before learned Chief Judicial

Magistrate, Sri Ganganagar in Criminal Case No.405/2018 (State

Vs. Kashi Ram) are hereby quashed and set aside while directing

that the seized vehicle as also the cost of the diesel allegedly

recovered from the petitioner, be released unconditionally and