Crl.A. 91/2004 HON’BLE MR. JUSTICE C R SARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. T J Mahanta, learned counsel, appearing for the appellant. Als o heard Mr. B S Sinha, learned Additional Public Prosecutor, appearing for the S tate-respondent. 2. This appeal is directed against the judgment and order, dated 08.03.2004 , passed by the learned Special Judge, Cachar, Silchar in Special Case No.5/93, under Section 7 of the Essential Commodities Act, 1963. 3. The prosecution case, in brief, as revealed during the trial, may be sta ted as follows:- On 17.03.1993 at about 8.00 PM., Sri Ramesh Das, Sub-Inspector of Police , along with his staff found a Truck, bearing registration No.ZRA-1239, parked i n front of the house of the appellant and noticed that petrol was taken out from the said vehicle. Accordingly, the said officer searched the house of the appel lant, in presence of his accompanying police staff and seized huge quantity of p etrol and diesel. The said police officer, after the seizure aforesaid, lodged a n FIR with the Silchar Police Station against the appellant and three others. 4. Accordingly, a police case was registered in Silchar Police Station Case No.316/93 under Section 379/411 I.P.C, read with Section 7 of the Essential Com modities Act, 1963 (herein after referred to as the EC Act ) and launched inves tigation into the matter. At the close of the investigation, police submitted Ch arge Sheet, against the appellant and two others u/s 411/407 I.P.C and forwarded them to Court to stand the trial. 5. The learned Trial Judge, observing that there was no ingredient of the o ffences under the Section 407/411 IPC, came to the findings that the accused per sons were liable to be prosecuted under Section 7 of the E.C Act. Accordingly, t he learned trial Judge explained the particulars of offence u/s 7 of the E.C Act to the accused persons, to which they pleaded not guilty. 6. In order to prove its case, the prosecution examined as many as 5 witnes ses, including the Investigating Officer. At the close of the prosecution witnes ses, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations brought against them and declined to adduce defence evidence. 7. The learned trial Judge, initially, acquitted the accused persons, vide order dated 19.9.1997 and upon such acquittal, a Suo Moto revision, being Crimin al Revision (p) (Suo-moto) No.126/99, was initiated, and vide order, dated 13.05 .2002, passed in the said petition, the impugned judgment, dated 19.09.1997, was set aside and the said case was remanded back to the learned trial Judge to pro ceed in accordance with law. After the said remand, only the appellant appeared before the trial and the other accused persons absconded. Therefore, learned tri al Judge separated the case against the appellant and proceeded with the trial a gainst him. Though liberty was given to the appellant, to cross-examine the pros ecution witnesses, he declined to do so. 8. Having heard the learned counsel, appearing for both the parties and con sidering the evidence, given by the prosecution witnesses, the learned trial Jud ge held the appellant guilty of the offence, under Section 7 of the E.C. Act and convicted him for committing the offence. Accordingly, the learned trial Judge sentenced the appellant to suffer RI for three years and pay fine of Rs.10,000/- (Rupees ten thousand only), in default, suffer RI for another period of one mon th. 9. Aggrieved by the said conviction and sentence, the convict, as appellant , has come up with this appeal. 10. Mr. T J Mahanta, learned counsel, appearing for the appellant, drawing t he attention of this Court to the provisions of Section 100(4), Criminal Procedu re Code (herein after referred to as Cr.P.C ) has submitted that the police off icer, while searching the house of the appellant, failed to comply with the mand atory provisions of Section 100(4) Cr.P.C and, thereby committed gross illegalit y in the eyes of law. According to the counsel, though there were independent in habitants and other public in the said locality, the Officer, at the time of mak ing search, did not make any attempt to procure presence of any independent witn ess and, thus, the police officer flaunted the provisions of Section 100(4). 11. Learned counsel for the appellant has further submitted that the police officer, who lodged the FIR, as complainant, himself investigated into the matte r and, therefore, committed gross illegality in the eyes of law. 12. It is also contended, on behalf of the appellant, that there is no evide nce, on record, to show that the appellant had violated the provisions of Sectio n 7 of the EC Act, 1994, in as much as, there is no expert opinion/evidence, ind icating that the item seized from the appellant was petroleum product. 13. In view of the above, the learned counsel, for the appellant, has submi tted that the learned trial Judged committed gross error, in the eyes of law, by recording the impugned conviction and sentence, against the appellant, without sufficient evidence on record, and as such, the conviction and sentence are liab le to be set aside. 14. Mr. B S Sinha, learned Additional Public Prosecutor, suporting the impug ned judgment and order, has submitted that there is sufficient evidence, on reco rd, to show that huge quantity of petroleum product was seized from the house of the appellant and that the learned trial Judge committed no error by passing th e impugned judgment and order. 15. In order to appreciate the counter arguments, advanced by the learned co unsel, appearing for both the parties and to examine the correctness of the impu gned judgment and order, I feel, it will be appropriate to, briefly, scan the ev idence, on record. 16. Mr. Ramesh Das, S.I of Police, who has deposed as PW.1, is the informant and except PW.5, all the other prosecution witnesses i.e. PW.2, PW.3 and PW.4 a re the police officers, who accompanied the informant, at the time of seizure. I n his evidence, PW.1 stated that on 17.03.1993, he searched the house of the app ellant in presence of his staff, who accompanied him. According to PW.1, he sei zed petrol and diesel, from the house of the appellant vide exhibit No.1. Pw.1 h as clearly stated that there were houses and shops around the place of occurrenc e but he did not examine any of the said inhabitants/persons of the locality. 17. In view of the above evidence, it is clearly found that the police Offic er, who searched the house of the appellant, for the purpose of seizing the petr ol and diesel, did not make any attempt to make the search in presence of any in dependent and respectable inhabitant of the locality. No reason has been given b y the said police officer, as to why he did not call upon any independent local witnesses from the locality. 18. Section 100(4) of the Cr. P. C reads as follows: Before making a search under this Chapter, the officer or other person about to make shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a wi tness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. 19. The said provision makes it obligatory, on the part of the officer for m aking charge under Chapter 7 of Cr.P.C, to call upon two or more independent and respectable inhabitants of the locality in which, the place to be searched is s ituated or of any other locality, if no such inhabitant of the said locality is available or is willing to be an eye witness to the search to be conducted. Ther efore, there must be record to show that the officer made attempt to comply with the said statutory procedure, before making a search. Any search, resulting sei zure, without complying with the said statutory requirement cannot be lawful. 20. In view of the above, it appears that PW.1, at the time of making search and seizure failed to comply with the statutory provisions, as prescribed by Se ction 100(4) of the Cr.P.C . Therefore, the seizure of petrol and diesel, from t he house of the appellant, was bad in the eye of law. 21. The appellant has been convicted by the learned trial Judge for committi ng offence under Section 7 of the Essential Commodities Act, by illegally keepin g/storing petroleum products i.e. petrol and diesel in his house. 22. PW.1 i.e. Investigating Officer, in his evidence, stated that he seized 11 barrels of petrol, 11 numbers of Mustard Oil tins each containing 5 litres of diesel, 20 numbers of plastic jars each containing 4 liters of petrol, 11 numbe rs of tin each containing 4 liters of petrol. The I.O nowhere mentioned the quan tity of the petrol found in those 11 numbers of barrels. From his evidence it ap pears that apart from the petrol contained in 11 numbers of barrel, he found 55 liters of diesel in 11 containers and 124 liters of petrol in 31 containers (20+ 11). 23. In order to hold a person guilty of illegally storing petrol, diesel etc . it must be proved that the seized item was a petroleum product belonging to a particular category(s) and that storage/keeping of such petroleum product requir e permit/license etc. 24. Section 2(a), 2(b), 2(bb), 2(bbb) of the Petroleum Act 1934, which reads as follows, defines various categories of petroleum products: 2(a) petroleum means any liquid hydrocarbon on mixture of hydrocarbons, and any inflammable mixture (liquid, viscous or solid) containing any liquid hydroc arbon; (b) petroleum Class A means petroleum having a flash-point below twenty-th ree degree centigrade; (bb) petroleum Class B means petroleum having a flash-point of twenty-three degrees centigrade and above but below sixty-five degrees centigrade; (bbb) petroleum Class C means petroleum having a flash-point of sixty-five d egrees centigrade and above but below ninety-three degree centigrade. 25. Section 7 of the Petroleum Act, 1934, which reads as follows, exempts ce rtain categories of petroleum, on the basis of quantity, from the purview of lic ence. 7. No licence needed for transport of storage of limited quantities of petroleu m Class B or petroleum Class C.- Notwithstanding anything contained in this Chap ter, a person need not obtain a licence for the transport or storage of- (i) petroleum Class B if the total quantity in his possession at any one pla ce does not exceed two thousand and five hundred litres and none of it is contai ned in a receptacle exceeding one thousand litres in capacity; or (ii) petroleum Class C if the total quantity in his possession at any one pla ce does not exceed forty-five thousand litres and such petroleum is transported or stored in accordance with the rules made under section 4. 26. Therefore, in a case, where allegation is made regarding illegal storage/pos session of petroleum products, it must be established, by the prosecution, by ad ducing reliable and cogent evidence, that the seized item is a petroleum product and that the possession of the seized quantity, which has been found in the pos session of the person concerned, was illegal. In the present case, no evidence h as been adduced to show that the seized items were petroleum products and that t he possession of the same required licence/permit. 27. In view of the above, I have no hesitation in holding that the prosecuti on failed to establish that the appellant violated the provisions of Section 7 o f the EC Act, by storing the items, seized by the I.O. 28. Admittedly, P.W.1, Sub-Inspector of Police, lodged the FIR, as a complai nant and he, himself, made search and seizure in this case. In his evidence, it is clearly stated that he was the informant and investigating officer. Law is we ll settled that, in a criminal case, the complainant should not be the investiga ting authority. 29. In the Case of Dipak Nath & Anr. Vs. State of Tripura (2009 (2) GLT 40) a Division Bench of this Court, referring to the decision of Megha Singh Vs. Sta te of Haryana, reported in AIR 1995 SC 2339, held that the trial gets vitiated, if the investigation is done by the complainant himself. In the case Megha Singh (supra), the Supreme Court disapproved the practice of conducting investigation by an informant police officer. 30. In the case of Megha Singh(supra), PW.3 Siri Chand, Head Constable arres ted the accused and search being conducted by him a pistol and cartridges were recovered from the accused and on the basis of his complain, a formal First Info rmation Report was lodged and the case was initiated. The Supreme Court, in the said case, observed that the said Head Constable being complainant should not ha ve proceeded with the investigation of the case and such practice, to say the le ast, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. The Supreme Court allowed the appeal and set a side the conviction and sentence passed against the appellant. 31. In view of above principle, in the present case, the investigati on, conducted by the informant himself, can’t be treated as impartial investigat ion and therefore, the trial as well as the conviction, recorded on the basis of such illegal investigation, suffers from legal infirmity and impediment. It nee d not be reiterated here that justice should not only be done but it must appear to have been done. The personal liberty of a person can’t be taken away without due process of law. Therefore, the procedure followed must not suffer from bias ness and illegality. No action can stand the scrutiny of law if the procedure, a dopted, is found to be bias and illegal. In the case at hand, as the complainant himself conducted the investigation and submitted the charge sheet, the entire procedure, resulting submission of charge sheet, can’t be held to be fair and fr ee from biasness. Therefore, as the investigation does not appear to be impartia l, the conviction based on such investigation can’t be allowed to stand. 32. Accordingly, the impugned judgment and order of conviction and sentence, is set aside. The appellant is acquitted and set at liberty. His bail bond shal l stand discharged. 33. Return the Lower Court Records.