THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Petition Nos.5217 & 6089 of 2007 Date: 26.04.2010 Crl.P.No.5217 of 2007: Between: V. Nagajyothi … Petitioner AND State of A.P., Rep.by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent Crl.P.No.6089 of 2007 Between: S. Ramachandra Reddy and another … Petitioners AND State of A.P., Rep.by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Petition Nos.5217 & 6089 of 2007 COMMON ORDER: Since both these Criminal Petitions arise out of the same Judgment, they are clubbed together and being disposed of by this common order. 2. These Criminal Petitions have been filed praying to quash the order dated 19.05.2007 made in C.C.No.196 of 2007 on the file of the III Additional Judicial Magistrate of First Class, Kakinada, East Godavari District . 3. The brief facts of the case are as follows: The petitioner in Crl. Petition No.5217 of 2007 is A.2 and the petitioners in Crl. Petition No.6089 of 2007 are A.3 & A.4 in C.C.No.196 of 2007 on the file of III Additional Judicial Magistrate of First Class, Kakinada, hereinafter referred to as the Magistrate and the petitioners herein will be referred to as A.2 and A.3 & A.4 for the sake of convenience. 4. A.2 has been shown as Owner of I.B.P. Petrol Bunk at Samalkot. A.3 has been shown as Manager of the said petrol bunk. A.1 was the driver of lorry bearing No.AP-31-T-4757. A.4 was working as Clerk in the said petrol bunk. On reliable information that naphtha was being mixed in petrol and HSD at I.B.P. Petrol Bunk, Samalkot, the then In- charge Mandal Revenue Officer, Samalkot along with others conducted joint raid on I.B.P. Petrol Bunk on 03.06.2006 at about 2 p.m. They found one tanker lorry bearing No.P-31-T-4757, which was parked near the underground tank. They also noticed A.1 and A.4 unloading naphtha (white oil) from the said tanker lorry into the underground petrol tank with the help of pipes. The statements of accused were recorded. The samples were taken from the lorry tanker, underground petrol tank and underground HSD tank in the presence of mediators under a cover of mediators report. The tanker lorry was seized with available naphtha of about 750 ml. On the report given by Sri S.Satyanarayana, the then In-charge Mandal Revenue Officer, Samalkot, a case in Crime No.33 of 2006 was registered for the offences punishable under Clause 5 (3) of Naphtha (Acquisition, Sale, Storage and Prevention of use in Automobile) Order, 2000 and Clause 5 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 and Clause 28 of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 read with Section 7 of the Essential Commodities Act, 1981 and Section 420 I.P.C. 5. Earlier, the petitioners herein filed Criminal Petition No.2735 of 2006 to quash the proceedings in Crime No.33 of 2006 as referred above. The main plea taken by the petitioners in the said Crl.Petition is that the ingredients of Section 420 IPC were not made out. This Court, by order dated 10.08.2006, allowed the said Crl. Petition in part directing the investigating agency to delete Section 420 IPC and to proceed with the investigation in respect of the other offences alleged in the complaint. One of the grounds taken by A.2 is that she was not the owner of the petrol bunk and that she was only a handling and maintenance contractor of I.B.P. petrol bunk. The Inspector of Police, after receiving the report from F.S.L. Hyderabad and after completion of investigation, filed charge sheet. In the charge sheet, it is mentioned that he had sent the seized oil samples to F.S.L., Hyderabad and the F.S.L. authorities analysed the same and issued analysis report in which it was opined that the item No.1 (sample naphtha taken from tanker), item No.2 (sample petrol taken from underground tank) are confirming to motor spirit, as per the relevant bureau of Indian Standard Specifications (BIS) indicated therein. However, they opined that item No.3 (sample HSD taken from underground tank) is not confirming to motor spirit, as per the relevant bureau of BIS indicated therein. 6-A proceedings of Essential Commodities Act were also initiated. 6. Sri N. Siva Reddy, learned counsel for the petitioners submitted that I.B.P. Auto services i.e., scene of offence is an outlet which belongs to I.B.P. company and that the A.2 is only a handling and maintenance contractor. He has also furnished a Xerox copy of order issued by the Joint Collector, East Godavari District showing that IBP Auto Services are the owners of outlet (petrol bunk). His second submission is that Deputy Superintendent of Police is only authorized to file charge sheet, but in this case the Inspector of Police has filed charge sheet and therefore, the same is illegal, unauthorized and therefore, the impugned proceedings are liable to be quashed. Reliance is placed on a judgment in Ch. Yegnaiah & sons and others v. State of A.P.[1] The third submission is that since no ingredients of the alleged offences have been made out from the contents of the very charge sheet itself, filing of charge sheet or continuation of proceedings amounts to abuse of process of court and therefore, the proceedings have to be quashed. The fourth and last submission is that there is non-application of mind by the learned Magistrate in taking cognizance of the alleged offences. 7. The learned Additional Public Prosecutor supported the impugned order. 8. As seen from the impugned order, the learned Magistrate found that a prima facie case has been made out against the accused and taken cognizance of offences punishable under Clause 5 (3) of Naphtha (Acquisition, Sale, Storage and Prevention of use in Automobile) Order, 2000 and Clause 5 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 vide III and Clause 28 of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 read with Section 7 of the Essential Commodities Act, 1981 and issued Non-bailable Warrants against the petitioners. 9. Now the points that arise for my consideration is i) whether the Inspector of Police is empowered to file charge sheet against the petitioners or not? ii) Whether the ingredients of alleged offences have been made out from the contents of the charge sheet or not? and iii) Whether the material placed by the petitioners/accused can be taken into consideration or not? 10. Point No.(i)- As far as this point is concerned, it maybe useful to refer Clause (4) of Motor Spirit & High Speed Diesel Order, 1998, which reads as follows: “4. Power of Search and Seizure:- (A) Any Gazetted Officer of the Central or State Government or any Police Officer not below the rank of Deputy Superintendent of Police (DSP) duly authorized, by general or special order by the Central Government or State Government as the case may be or any Officer of the concerned Oil Company not below the rank of Sales Officer may, with a view to securing compliance with the provisions of this Order, or for the purpose of satisfying himself that this order or any order made thereunder has been complied with— (i) Enter and search any place or premises being made use or suspected to be made use by a dealer, transporter, consumer or any other person who is an employee or agent of such dealer/transporter/consumer or any other person, with respect to which there is reason to believe that the provisions of this order have been/are being or are about to be contravened. (ii) Stop and search any person or vehicle or receptacle used or intended to be used for the movement of the product. (iii) Inspect any book of accounts or other documents or any stock of the product used or suspected to be used in the business of the dealer, transporter, consumer or any other person suspected to be an employee or agent of the dealer, transporter or consumer. (iv) Take samples of the product and/or seize any of the stocks of the product which the officer has reason to believe has been or is being or is about to be used in contravention of this order and hereafter take or authorize the taking of all measures necessary for securing the production of stocks/items so seized before the Collector having jurisdiction under the provision of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production. (B) While exercising the power of seizure provided under Clause A(iv) the authorized officer shall record in writing the reasons for doing so, a copy of which shall be given to the dealer, transporter, consumer or any other concerned person. (C) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall, as far as may be, apply to search and seizure under this order.” The second provision referred by the learned counsel is Clause 9 of Petroleum Products Order, 1999, which reads as follows: “9. Power of entry, search and seizure:- Any Gazetted Officer of Central or State Government or any police officer not below the rank of Deputy Superintendent of Police duty authorised by general or special order by Central Government or State Government as the case may be or any officer of a government oil company, not below the rank of Sales Officer, may, with a view to securing compliance with this order or to satisfy himself that this order or any order made thereunder has been complied with:-- (a) Stop and search any vessel or vehicle used or capable of being used for the transport of any petroleum product; (b) Enter and search any place; (c) Seize stocks of any crude oil or petroleum product in respect of which he has reason to believe that a contravention of this order has been, or is being, or is about to be made.” Clause 4 (1) of the Naphta (Acquisition, Sale, Storage and Prevention of use in Automobile), Order, 2000 is as follows: “4. Power of search and seizure:- (1) Any Gazetted Officer of the Central or State Government or any Police Officer not below the rank of Deputy Superintendent of Police duly authorised, by general or special order by the Government or any officers of a Government Oil Company or any other Oil Company authorised by Central Government, not below the rank of Sales Officer may with a view to securing compliance with the provision of this Order, or for the purpose of satisfying himself that this order or any order made thereunder has been complied with: (a) Enter and search any place or premises being made use of or suspected to be made use of in the business of the dealer, transporter, consumer or any other person who is an employee or agent of such dealer/transporter /consumer with respect to which there is reason to believe that the provisions of this order have been/are being or are about to be contravened. (b) Stop and search any person or vehicle or receptacle used or intended to be used for the movement of the product or using or receiving the product in contravention of this order. (c) Inspect any book of accounts or other document or any stock of the product used or suspected to be used in the business of the dealer, transporter, consumer or any other person suspected to be an employee or agent of the dealer, transporter or consumer. (d) Take samples of the product and or seize any of the stocks of the product which the officer has reason to believe has been or is being or is about to be used in contravention of this order and hereafter take or authorise the taking of all measures necessary for securing the producing of stocks/items so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production.” 11. A conjoint reading of the above clauses in the above referred Orders makes it very clear that those clauses deal with the power of entry, search and seizure any place, stop and search any person or vehicle and they do not deal with the power of filing charge sheet or final report as the case may be. More over, as seen from the contents of the charge sheet referred above, the then In-charge Mandal Revenue Officer, Deputy Tahsildar, Civil Supplies, Inspector of Police of Vigilance and Enforcement, Rajahmundry, District Inspector of Legal Metrology, Rajahmundry jointly conducted the raid. It is not in dispute that some of the officers are Gazetted Officers, particularly In- charge Mandal Revenue Officer appears to be a Gazetted Officer. Since the Gazetted Officers are empowered to make search and seizure, I am of the opinion that the above-referred clauses do not help the petitioners. If there is no gazetted officer in the party, no other police officer except Deputy Superintendent of Police is empowered to search and seizure under above referred clauses. 12. A perusal of the decision relied by the learned counsel for the petitioners’ shows that the Inspector of Police, Vigilance Cell, Civil Supplies Department, Mahaboobnagar inspected the petrol bunk therein and had drawn some samples. It was contended that the Inspector of Police has no power to search and seizure and it was only the Deputy Superintendent of Police who was authorized to search and seizure, as per Clause 2 (e) and 5 of the Essential Commodities Act. The reference is when a search and seizure has been made by a police officer he should not be below the rank of D.S.P. In this case, since the search and seizure is by a Gazetted Officer, it is clear that the above-referred decision is not applicable to the facts of the present case. 13. Point No.(ii) - Whether the ingredients of alleged offences have been made out or not cannot be decided in these proceedings. Similarly, whether A.2 was responsible for the day- to-day business and sale of petroleum products or not also cannot be decided in these proceedings. Similarly, truth or otherwise of the allegations made against the petitioners cannot be decided in these proceedings. As far as item No.3 taken from the underground tank is concerned, the F.S.L. report shows that it was not confirming to the motor spirit as per the Bureau of Indian Standard Specifications. In view of the report of the F.S.L. with regard to the sample of HSD taken from the underground tank, now at this stage, it cannot be said that no prima facie case has been made out and taking of cognizance is illegal. 14. Even if there is any minor mistake in referring to the relevant provisions either in the charge sheet or in the order of taking cognisance that itself is not sufficient to quash the proceedings. Where in a case, charge sheet allegations even if accepted as proved on their face value do not disclose the alleged offences only in such circumstances the criminal proceedings can be quashed. 15. Point No.(iii) – It is settled law that the material placed by the petitioners/accused cannot be taken into consideration in considering the petitions filed to quash the proceedings. Therefore, though the petitioners have furnished a copy of letter said to have been issued by the Joint Collector, East Godavari District dated 31.03.2003, the same cannot be looked into and considered at this stage. 16. In view of the above discussion, I do not see any reason to quash the impugned order and therefore, the criminal petitions are liable to be dismissed. 17. Accordingly, the Criminal Petitions are dismissed. 18. At this stage, it is represented by the learned counsel for the petitioners that Non-bailable Warrants issued against the petitioners could not be executed in view of interim stay granted by this Court. If that is so, the petitioners may approach the learned Magistrate and file a petition to recall N.B.Ws. and the same may be considered as expeditiously as possible in accordance with law. ________________________ B. CHANDRA KUMAR, J Date: 26.04.2010 Isn [1] 2003 (1) ALT (Crl.) 39 (A.P.)