CRM No.M-22032 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:-11.11.2010 Atul Garg son of Janak Raj ---Petitioner Versus State of Punjab ---Respondent CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Preetinder Singh Ahluwalia, Advocate for the petitioner. Mr.Anter Singh Brar, Senior Deputy Advocate General, Punjab. M ehinder S ingh S ullar , J. (Oral) The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, raised in the instant petition and emanating from the record, is that on 27.3.2010 at about 5 P.M., a police party headed by SI Shinderpal Singh was present at Sanouri Adda, Patiala, in connection with patrol duty and search of suspected persons. He received a secret information that petitioner Atul Garg used to illegally sell the kerosene to the public by way of black marketing. If a raid is conducted, then he can be nabbed with kerosene. Having prepared and sent the writing (ruqqa), on the basis of secret information to the Police Station for registration of a case, SI Shinderpal Singh proceeded to arrest the accused and to effect recovery from him in this behalf. 2. In this manner and in the wake of police writing (ruqqa), the present case was registered against the petitioner-accused, vide FIR No.125 dated 27.3.2010 on accusation of having committed the offence punishable under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as “the Act”) by the police of Police Station Kotwali, Patiala. 3. The petitioner did not feel satisfied with the initiation of criminal prosecution against him by the police under section 7 of the Act and filed the present petition for quashing the FIR, invoking the provisions of section 482 CRM No.M-22032 of 2010 2 Cr.PC. That is how I am seized of the matter. 4. A Coordinate Bench of this Court (Sham Sunder, J.) passed the following order on 3.8.2010 at motion stage :- “This petition under Section 482 Cr.PC, for quashing FIR No.125 dated 27.03.2010, under Section 7 of the Essential Commodities Act (hereinafter to be called as the 'Act' only), P.S.Kotwali Patiala, and all the subsequent proceedings, arising therefrom, has been filed by the petitioner. The Counsel for the petitioner, has submitted that, as per the allegations, a secret information, was received, that the petitioner, was carrying the kerosene oil, for the purpose of selling the same in black. He has further submitted that, at the time of raid, only the Police Officers, were present, but, no Officer of the Food and Supplies Department, as envisaged, by Rule 9 of the Kerosene (Restriction on Ceiling) Order, 1993, was present, and, as such, the very raid, the alleged search and seizure were conducted by an Officer, who was not competent, to do so. He has further submitted that mere possession of kerosene oil, is not an offence, until, it is proved, that the same, was being sold, in the black market. He has further submitted that, there is no material, on the record, that the petitioner, was allegedly selling the kerosene oil, in his possession, in the black market. He also placed reliance, on Krishna Grover Vs. State of Haryana, 2003(3) Crl.C.C.293, Raj Narain alias Kuka Vs. State of Punjab, 2003(2) RCR (Criminal),88, Harpal Singh and others Vs.State of Punjab, 1991 (3), RCR (Criminal), 307, Suresh Kumar Vs. State of Haryana, 1996, Crl.L.J. 4216, State of Haryana Vs. Ram Niwas, 2004 (1) RCR (Criminal) 693, State of M.P. Vs. Chunnilal @ Chunni Singh, 2009(2) RCR (Criminal) 758 (SC), and, Jeewan Kumar Raut & another Vs. Central Bureau of Investigation, 2009(3), RCR (Criminal), 586(SC), in support of his contentions.” 5. At the very outset, learned State counsel has acknowledged the indicated legal and factual matrix in this regard. 6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be accepted in this CRM No.M-22032 of 2010 3 context. 7. What is not disputed here is that the instant case was registered against the petitioner, in pursuance of police writing (ruqqa) of the police officer. The alleged recovery of kerosene was stated to be also effected by the police officials without associating any person from the Food and Civil Supplies Department. 8. As is evident from the record that the petitioner was charged for the commission of an offence, for the violation of clauses 3(2) and 4(1)(c) of the Kerosene (Restriction of use and Fixation of Ceiling Price) Order, 1993 (for brevity “the relevant Order”) punishable under section 7 of the Act. 9. Clause 9 of the relevant Order is as under:- “9. Power of entry, search and seizure-- (a) An officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorized by such Government and notified by the Central Government or any officer authorized and notified by the Central Government, or any officer not below the rank of Sales Officer of a Government Oil Company authorized by the Government and notified by the Central government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of satisfying himself that this order or any order made thereunder has been complied with: (i) xxx xxx xxx. (ii)enter or search any place with such aid or assistance, as may be necessary; and (iii)seize and remove with such aid or assistance, as may be necessary, books registers and other records pertaining to kerosene business, along with vehicle, vessel or any other conveyance used for carrying such stock, if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorize the taking of all measures necessary for securing the production of the kerosene at the Office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 to 1955), for their safe custody pending such procedures. (b) The provisions of Sec.100 of the Code Criminal Procedure, 1973 [2 of 1974] CRM No.M-22032 of 2010 4 relating to search and seizure shall, so far as may be, apply to searches and seizures under this Order.” 10. Not only that, Clause 3 (2) escalates that “no dealer appointed under the public distribution system or a transporter shall sell, distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for”. 11. Likewise, clause 4(1)(c) postulates that “no dealer having stock of kerosene supplied under the public distribution system at the business premises, including the place of storage, shall sell, distribute or supply kerosene at a price higher than that fixed by the Government or Government Oil Company.” The word “dealer” has been defined under clause 2(c), to mean a person, firm, association of persons, company, institution, organization or a co-operative society approved by Government or company or State or Central Government or a parallel marketeer and engaged in the business of buying and selling kerosene. Likewise, according to clause 2(j), “public distribution system” means the system of distribution, marketing or selling of kerosene at declared price through a distribution system approved by the Central or State Government. 12. A co-joint reading of these provisions would leave no manner of doubt that only an officer of the department of Food and Civil Supplies of the Government, not below the rank of an Inspector, authorized by the State Government, was competent and police officer did not have the jurisdiction/power to enter, search any place or seize any article under the Act. Moreover, it was for the prosecution to prove that the petitioner was actually a dealer and the kerosene was supplied to him under the public distribution system, which are totally lacking in the instant case. 13. Ex facie, the celebrated argument of the learned State counsel that the police has the power to take cognizance and search and seize the articles, is not only devoid of merit but misplaced as well. It is a matter of fact that a specific procedure has been provided under the Act and no other person except the person CRM No.M-22032 of 2010 5 authorized under clause 9 of the relevant Order has the power to enter any place, search and seize the articles for the commission of the offence punishable under the Act. That means, the provisions of special statute (clause 9) with regard to entry, search and seizure will prevail over and above the general provisions of law. 14. Sequelly, it is not a matter of dispute that it is well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning, if such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise. Reliance in this regard can be placed on the judgment of Hon'ble Apex Court in case Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation 2009(3) R.C.R.(Criminal) 586 (SC). 15. Therefore, the legislative intent underlying the relevant Order is clear and explicit that in order to invoke a penal provision, the prosecution was required to prove all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order and to observe the strict compliance of the provisions of clause 9 contained therein, with regard to entry, search and seizure of the property. That being the legal position, it can safely be held that neither all the essential ingredients of CRM No.M-22032 of 2010 6 clauses 3(2) and 4 (1)(c) of the relevant Order are complete, nor SI of Police Shinderpal Singh was authorized and competent to search and seize the case property, nor he has joined any such authorized person at the time of search and seizure under the relevant Order. Therefore, the entire process of search and seizure was illegal, without jurisdiction, goes to the very root of the case and vitiated the investigation in this respect. This grave illegality and material procedural irregularity entail the discharge of the petitioner in this relevant direction. 16. Such thus being the legal position on record, the FIR registered against the petitioner-accused on the basis of ruqqa of the police officer is not only illegal but without jurisdiction as well. Hence, the arguments of the learned counsel for the petitioner that entire exercise is illegal and futile, have considerable force and the contrary contentions of learned State counsel “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. The law laid down in the aforesaid judgment “mutatis mutandis” is attracted to the present controversy and is the complete answer to the problem in hand. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforesaid reasons, the instant petition is hereby accepted. Consequently, FIR No.125 dated 27.3.2010 and all subsequent proceedings thereto are quashed and the petitioner is discharged from the indicated criminal proceedings, in the obtaining circumstances of the case. (Mehinder Singh Sullar) Judge 11.11.2010 AS Whether to be referred to reporter? Yes/No