1 31 Criminal AppealNo30SB of 1999 1 In the HighCourt of Punjaband Haryanaat Chandigarh Criminal AppealNo 830mSBof 1999 Date of Decisionl l02010 Nurudinand Another 0 Appellant 0 Versus I C5 Stateof Haryana I Respondent CORAM HONBLE MR JUSTICE KANWALJIT SINGH AHLUWALIA CC Presentl Mr RajinderGoyalAdvocate I for the appellant 08 Mr SuniI Nehra Senior DeputyAdvocate r General Haryanafor the respondent 7 Z Kanwaliit Sinqh Ahluwalia J The presentappealhas been filed by Nurudin son of Subrati and Akbar son of israil Both were named as accused in case FlR No S9 101 dated 181 998 registeredat Police Station Taoru under Section 7 of the Essential Commodities Act 1955 lereinafter referred to as 1955 ActI KaptanSingh Sub House Omcer Police Station TaorU was presentaiongwith his companionpoliceoHicialsfor doingpatroldutyat Taoru A secret informationwas received that both the appellantsNurudin and Akbar without havinganyIicenceor permit indulgein sale of kerosene oil from the shop of Nurudin at Bus Stand Khori Sub House Omcer requisitioned the services of ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 32 Criminal AppealNo 830SB of 1999 2 Manmohan SinghInspectorFood and SuppliesTaoru One Lal Khan was also joined A raid was conducted and two persons were apprehendedwho disclosed their names as Nurudin and Akbar At the 1 Ct spot seven drums were found filled with blue kerosene oil and two drums were found filled with white kerosene oil Each drum contained 0 0 200 Iitersof kerosene oil To measure the kerosene oil one half drum I C5 havingcut one measure and one funnel were also found 18 empty I drumswere also recovered The accused could not produceany Iicence Z or permit4 sampleof bottleof kerosene oil was taken from the drums The drums were sealed The seal was handed over to Lal Khan Since r the accused had violated HaryanaKerosene Dealers LicensingOrder I 1976 hereinafterreferred to as1976 Order2 a case under Section 7 C45 Oo of the 1955 Act was made out Therefore Kaptan Singh Sub A7 House Officer on 181998 at 315 PM prepar a ruqaand sent the same for registration of the case On receiptof ruqa Qw ExA formal FlR ExAll was registeredin the Police Station byAmar Nath Assistant Sub Inspector The above said FlR was A reportunder Section 173 CrC was submitted and the appellantswere chargedby the Court of Special Judge Gurgaonon 231 1 1998 for havingIn possessiontwo drums of superiorkerosene oil and seven drums of kerosene oii of blue colour containing 200 Iitersof kerosene oil meant for sale to ration card holders Thus havingstored the same they contravened the provisionsof 1976 Order and the HaryanaKerosene DeaIers LicensingFirst AmendmentlOrder 1994 hereinafterreferred as 1994 OrderI and therebycommitted an offence punishableunder 4 ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 33 CriminalAppealNo30B of 1999 3 Section 70f the 1955Act Prosecutionexamined Amar Nath who was then postedas Assistant Sub Inspectoras PV He stated that on receiptof ruqa 1 ExA formal case FlR EPAll was registered PW2 Kulbhushan Constable tendered his affidavit Ex 0 0 He had taken nine botties of sampleof kerosene oii on 41 998 to I 0 ForensicScience LaboratoryMadhuban I witness Lal Khan was givenup as won over Manmohan Singh Inspector Food and Supplies Taoru 2 appeared as PW 3 He deposedthat he was associated with the raiding r partyand found accused in possessionof nine drums details of which I have been givenearlier He funher stated that recovered anicles were 08 takento Police Station in Tata 407 vehicle He further stated that he 0 had smelled the kerosene oil Smell was prominentand therefore the ae V2 Z articles were contraband Gobind Ram Head Constable appearedas PW He has tendered his aftldavit ExPE He stated that the kerosene oil and the samples were deposited in the Malkhana and the kerosene was sold in auction and the sale proceedswere depositedin thetreasury KaptanSingh Sub House OHicer appeared as PlN He deposedwhat was stated in the ruqa ExPA He stated that from nine drums one bottle 01kerosene as samplewas taken into possession 18 emptydrums were exhibited as Exl to ExPl 8 measure Ex19 funnel ExP20 and halfdrum ExP21 In this appeal challengeis to the judgmentpassed by the SpeciaiJudge Gurgaonwho found the appellantsguiltyof oHence 4 ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 34 CriminalAppealNo30SB of 1999 4 under Section 70f 1955 Act The SpecialJudgeGurgaon sentencedthe appellantsto undergothree years rigorousimprisonment and pay fine of Rsl 0001e in defaultof paymentof fine to undergo C rigorous imprisonment for two months It will be peninentto mention herethat Section 7aKiil of the 1955Act prescribesthree months as 0 0 minimumpunishment and seven years as maximumpunishment I C5 Mr RajinderGoyalAdvocate appearingfor the appellants I hasread 1976 Order Clause 11 of the said Order read as under Z 11 Power of entry search and seizurel m The Director the District Magistratethe District Food and SuppIies Officer the Assistant Food and SuppliesOfficer the InspectorFood and Supplies a5 r0 or any other officer authorized in this behalf by the State Government may with a view to securing 7 Z compliance with this order to satisfyhimself that this order has been compliedwith 11 It was stated that 1976 Order was amended in the year 1986 and in CIause 11 followingamendmentwas addec e In the said order in clause 11 in sub clause 11 for the words The Director the District Magistratethe District Food and SuppliesOmcer the Assistant Food and Supplies Omcer the InspectorFood and Suppliesor any other officer authorized in this behalf by the State Government the words or any officer of the Food and Supplies Department not below the rank of the Assistant Food ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 35 95 Criminal AppealNo 830mSBof 1999 5 and SuppliesOfficer within the area of his shall be substituted Counselfor the appellantsfunher referred to 1994 Order and 1 Cl stated that no changein Clause 11 was eHected and as per the change envisagedby amendment in 1986 no search could be carried by any 0 4 officer below the rank of Assistant Food and SuppliesOmcer To fonify I C5 this submission reliance has been placedon judgmentrendered in I Ashok Kumar v State of Haryana19911Recent Criminal Repons Z 140 wherein it was held that Clause 11 of 1976 Order was amended vide notification dated 25 1986 and thereafter if a search is conducted by an Inspector who is Iower in rank than the I Assistant Food and SuppliesOmcer the search will be bad and 08 QO are Iiableto be quashet This Vlew was also reiteratedby Y3 IearnedSingleJudgeof this Coun in State of Haryanav Ram Niwas Z 200411 Recent Criminal Reports 693 wherein the following Qm observation was madele 5 Duringthe course of argumentsIearned counsel for the respondentrelies upon a judgment rendered by this Court in Ashok Kumar v State of Haryana1991111 All India Criminal Law Reporter 457 199121RCCrJ 140 1P8H1in which it has been observed that under the HaryanaKerosene Dealers Licensing Order 1976 CIause 11 the power to search and enter the premisesis only with the Assistant Food and SuppIiesOmcer and the Inspectorwho is below the rank of Assistant Food ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 36 Criminal AppealNo 830SB of 1999 6 and SuppliesOfficer IS not competentto enter search and seize the goods In Ashok Kumars case supralthe proceedingsagainstthe accused on this 1 short pointwere quasheclLearned counsel for the respondentalso relies upon the judgments of this 0 CO Court rendered in Arvind Katoch v State of C5 Punjab 200141RCR ICriminall608 and Raj I Narain alias Kuka v State of Punjab 2003 Z RCR Criminall88 in which on the point of competenceof search being conducted by a t particular official was discussed and the proceedings I werequashed 08 r Another judgmentrendered by Iearned SingleJudgeof this mmo Court in Harpal Singhand Others v State of Punjab199131Recent Z Criminal Reports 307 held that the provisionsof Code of Criminal Procedure are not applicablebecause the EssentiaI Commodities Act contain specialprovisionsIn Harpal Singhs case suprawithout taking into consideration the amendment introduced in Haryana Kerosene Dealers LicensingFirst Amendmentl Order 1986 hereinaner referred to as 1986 Orderlrelyingupon1976 Order it was held that raid conducted by the policeomcials below the rank of Sub Inspector would vitiatethe proceedings Admittedly in the presentcase Assistant Food and SuppIies Officer was not joined Therefore this Court ond no reason to differwith the consistent view taken by vanous SingleBenches of this Coun Therefore the presentappealis acceptedThe conviction and sentence ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 37 Criminal AppealNo30SB of 1999 7 awarded upon the appellantsis set aside and theyare acquittedof the charges 1l m C Judge February16 2010 DI 0 C I C5 I Z l CJ rV I 08 m tm Z Qw ANITA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document