Patna High Court Cr.Misc. No.1593 of 2002 (6) dt.18-08-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1593 of 2002 ====================================================== 1. Gopal Sultania @ Gopal Prasad Sultania, 2. Narayan Sultania @ Narayan Prasad Sultania Both sons of Purushottam Lal Sultania, resident of Police Station Town, District Begusarai .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. N. K. Agrawal, Senior Advocate Mr. D. N. Tiwary, Advocate For the Opposite Party/s : Mr. Dilip Kumar Singh, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE HARMA AND HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 6 18-08-2011 Heard Counsel for the petitioners and the A.P.P. appearing on behalf of the State. This application has been placed before the Division Bench in view of the judgment of another Division Bench of this Court in the case of Ram Chandra Pansari vs. The State of Bihar [1988 PLJR 623]. The question before this Court is whether the Assistant Sub-Inspector of Police could have conducted a search and seized the vehicle of the petitioners under the Bihar Motor Spirit and High Speed Diesel Oil Licensing Order, 1966 (hereinafter Patna High Court Cr.Misc. No.1593 of 2002 (6) dt.18-08-2011 referred to as ‘the Order’). Rule 12 of the Order reads as follows:- 12. Powers of entry, inspection, search, seizure etc.- (1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer, Incharge Tyre Rationing, Transport, Department, Bihar, Deputy Transport Commissioner of the Division, Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub Division Magistrate, Magistrate, Superintendent of Police, Deputy Superintendent of Police, other Police Officer not below the rank of Deputy Superintendent of Police or any other person authorized in this behalf by the State Government, viz., with such assistance as he may think fit- (a) ................................ (b) .............................. (c) .................................. (d) search, seize and remove stocks of motor spirit or high speed diesel oil with containers and the animals, vehicles or other conveyance used in carrying the said motor spirit or high speed diesel oil in contravention of the provisions of this Order, or of the conditions of the licence issued thereunder and thereafter, take or authorize the taking of all measures necessary for securing the production of stocks of vanaspati and animals, vehicles or vessels or other conveyances so seized before a magistrate and for their safe custody pending such production.” It is apparent on reading Rule 12 of the Order that the power of search and entry has to be made by an Officer not Patna High Court Cr.Misc. No.1593 of 2002 (6) dt.18-08-2011 below the rank of Deputy Superintendent of Police. In the present case, admittedly the Assistant Sub-Inspector of Police has conducted the search and made the seizure. Thus, the search and seizure is in the teeth of the provisions of Rule 12 of the Order. Since, it relates to the very base of starting a prosecution, it cannot be held to be a mere irregularity, which can be cured by ordering for re-investigation into the matter. The State was asked to file a counter affidavit in this case. In the counter affidavit filed on behalf of the State, the State has not been able to produce any notification or specific order of the State Government by which the Officer below the rank of Deputy Superintendent of Police has been authorized to conduct search and seizure in a case in which the person is to be convicted under Section 7 of the Essential Commodities Act for contravening ‘the Order’ aforesaid. The only reason stated in the counter affidavit is that the Assistant Sub-Inspectors of Police have been empowered to make search and seizure under Sections 102 and 103 of the Code of Criminal Procedure and as such the search and seizure was in accordance with law. Where there is a special Act, which prescribes the manner in which the investigation is to be conducted and also defines the person who may conduct such investigation, the provisions of the Code of Patna High Court Cr.Misc. No.1593 of 2002 (6) dt.18-08-2011 Criminal Procedure would only apply to the extent as mentioned in the Special Act/Order under which the person is to be tried. As quoted above, sub-clause (2) of Rule 12 of the Order provides that while conducting the search and seizure, the provisions of Sections 102 and 103 of the Code of Criminal Procedure are to be followed. This cannot be interpreted to mean that the Assistant Sub-Inspectors of Police, by virtue of the provisions of the Code of Criminal Procedure, has been given the power to conduct search and seizure. This Court, therefore, finds that the order of the Division Bench in the case of Ram Chandra Pansari (supra) is applicable in the facts of this case. Accordingly, the order dated 24.07.2001 passed by the Sub Divisional Judicial Magistrate, Begusarai in Barauni Police Station Case No. 290 of 2000 is hereby quashed. In the result, this application is allowed. Prabhakar Anand/- (Shyam Kishore Sharma, J) (Sheema Ali Khan, J)