JUDGMENT
Mridula Mishra, J.
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1. Heard counsel for the petitioner and the counsel appearing for the State.
2. This application has been filed for quashing the F.I.R. of Baikunthpur P.S. Case No. 35 of 2003 dated 17.4.2003 registered under Sections 420,414 and 120(B) of the Indian Penal Code as well as Section 3 of the Prevention of of Damage to Public Property Act,1984.
3. Petitioner No. 1 is the Manager of M/s Mamta Filling Station, Baikunthpur and other petitioners are staff of M/s Mamta Filling Station. On 16/17.4.2003 petitioners were reloading. petrol/diesel contained in tanker No. WB-11-8693 sent from Bharat Petroleum Depot, Patna. Mithlesh Kumar Das, Officer Incharge of Baikunthpur police station a that time came along with the police force and seized the tanker from which Diesel/patrol was being filled in the ground tank of M/s Mamta Filling Station. Seizure was made on the alleged ground that Kerosene oil was being adulterated in diesel/petrol. The Officer-in-charge of Baikunthpur police station arrested the petitioners, drew up an F.I.R. and lodged Baikunthpur P.S. Case No. 35 of 2003
4. The Officer-in-charge of Baikunthpur P.S. alleged that on 16.4.2003 at 22 hours he along with constables was on patrolling duty. About 3 A.M. when the patrolling party reached near M/s Mamta filling station, Baikunthpur, saw that a tanker was standing and some persons were also standing near the tanker. The officer-in-charge asked the driver to stop the jeep. The persons who were standing near the tanker started running away they were chased and caught. On being asked they disclosed their names. The Officer-in-charge reached near the tanker No. WB-11-8693 and found that Kerosene oil was being filled in underground tanker. He also felt the smell of Kerosene oil from the exit point of tanker. The Officer-in-charge demanded papers but the persons caught could not produce paper relating to the oil contained in the said tanker lorry. They also accepted their guilt relating to adulteration of kerosene oil of petrol/diesel. Their act is punishable under Sections 420,414 and 120B of the Indian Penal Code as well as Section 3 of the preventions of Damage to the Public Property Act. They were arrested and brought to the police station.
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5. Counsel for the petitioners submits that owner of M/s Mamta filling station in the next morning went to the police station and the officer-in-charge demanded Rs. one lac and also threatened him to cancel his dealership. The owner made the complaint to the District Magistrate, Gopalganj requesting to make enquiry in this case and also to take appropriate action against the officer-in-charge of Baikunthpur police station as a false case was instituted by him alleging adulteration of kerosene oil in petrol/diesel. It was also stated that the allegation of adulteration is an offence under Bihar Motor Sprit and High spirit Diesel Oil Dealers Licensing Order 1998. Under Section 12(1) of the Licensing order, official holding specific posts have specifically been authorised to make search, seizure and entry for violation of any of the provisions of Bihar Motor (Spirit and High Spirit diesel oil Dealers Licensing Order 1998. The Officer-in-charge of Baikunthpur police station maliciously caught the staff and manager of his filling station. Even in case kerosene oil was being adulterated with petrol/diesel the officer-in-charge has not been authorised under Section 12(1) of the Bihar Motor spirit and High spirit Diesel Oil Dealers Licensing Order, 1998 either to institute a case or make a search and seizure for such offence.
6. The District Magistrate, Gopalganj directed the S.D.O. Gopalganj to make enquiry. The S.D.O. Gopalganj appointed Shri Suresh Mishra, Executive Magistrate, Gopalganj and the B.D.O. Baikunthpur to enquire into the matter. They visited Baikunthpur police station on 17.4.2003 and submitted their report stating that the Officer-in-charge has not sent the sample of diesel and petrol for chemical analysis. In presence of officer in charge and others three bottle of petrol sample were collected, sealed and sent for testing to Bharat Petroleum Corporation Limited, Patna vide Letter No. 518/o dated 18.4.2003. Further it was reported that the Officer-in-charge Baikunthpur police station without following the provisions under Section 12(1) of the Bihar Motor spirit and High spirit Diesel Oil Dealers Licensing Order has instituted the F.I.R. as only the higher police officials or police officials not below the rank of Dy. S.P. is authorised to make such search and seizure and can institute a case for violation of the Provisions of Bihar Motor spirit and High spirit Diesel Oil Dealers Licensing Order. The sample which was sent by the S.D.O. Gopalganj for testing were tested in one of the notified laboratory of Bharat Petroleum Limited namely Hindustan Petroleum Corporation Limited, Budge Budge, 24 Pargana West Bengal This is a laboratory mentioned under Schedule-III of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 as one of the laboratory for testing of petroleum product sample. The Testing Laboratory of Bharat Petroleum Corporation and the Territory Manager. Retail by his letter dated 22.4.2003 sent a test report to the District Magistrate Gopalganj stating therein that all the three samples met the requirement of I.S. Specification and they pass the test. The District Magistrate, Gopalganj after receiving the report requested the Superintendent of Police, Gopalganj to take stringent administrative action against the officer-in-charge of Baikunthpur police station so that no police officer in future can violate the law and disobey the order of higher authority.
7. The Collector also mentioned in this letter that since the adulteration of kerosene oil, diesel and petrol, is an offence under Essential Commodities Act 1955 and Bihar Motor Spirit and High Sprit diesel oil Dealers Licensing Order 1966, only a police officer, not below the rank of Dy. S.P. could have taken action under the provisions of Essential Commodities Act for contravention of its its orders. The officer-in-charge Page 1691 has acted without following any procedure under the law and in haste got registered a case under Sections 420, 414 and 120 (B) of the Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act 1984. By virtue of Section 6 of the Essential Commodities Act the orders made under the E.C. Act has over riding effect on all other enactment which are inconsistent with as contrary to the provisions of the E.G. Act or any order framed thereunder.
8. The District Magistrate also directed to take strict and stringent action against the officer-in-charge for his action. The D.I.G. police, Saran placed the Officer-in-charge under suspension for illegality committed by him in connection with Baikunthpur P.S. Case No. 35 of 2003.
9. Counsel for the petitioner submits that from the letter bearing Memo No. 1767 dated 24.2.2003 it is apparent that the institution of F.I.R. as well as investigation of Baikunthpur P.S. Case No. 35 of 2003 is completely without jurisdiction as it is in violation of Section 12(1) of the Bihar Motor Spirit and High Spirit Diesel Oil Dealers Licensing Order 1966. Continuation of investigation as well as any criminal proceeding on the basis of such F.I.R. is an abuse of the process of the law. In such circumstances the F.I.R. and the investigation is liable to be quashed.
10. Counter affidavits lave been filed by the present Officer-in-charge of Baikunthpur police station as well as on behalf of Zonal I.G. Muzaffarpur. A supplementary counter affidavit has also been filed on behalf of Zonal I.G. Muzaffarpur and S.P. Gopalganj. In the counter affidavit of Officer-in-charge of Baikunthpur police station it has been stated that the procedural error by officer Incharge of Baikunthpur police station cannot vitiate entire process of F.I.R. of Baikunthpur P.S. Case No. 35 of 2003. As a matter of fact the Officer-in-charge while on patrolling duty found petrol and diesel are being adulterated by mixing kerosene oil while being filled in the underground tank of the filling station. He had no other option but to arrest the wrong doers and to institute a case. The Executive Magistrate on the direction of the District Magistrate simply seized sample of petrol and diesel from the tanker but no seizure was made from the underground tanker of petrol pump on the pretext that he has not been directed to do so. The Officer-in-charge o: Baikunthpur police station had taken steps in good faith but only due to procedural error stringent action was taken against him by the superior authority. Similar statement has been made in the counter affidavit of Zonal I.G. Muzaffarpur and S.P. Gopalganj. It has also been stated that samples which were seized should have been sent for testing by some independent agency but the testing has been done by one of the laboratory of Bharat Petroleum and the District Magistrate has directed to take steps against the Officer-in-charge on such partial report. Along with the supplementary counter affidavit the report of the Forensic Science Laboratory has been annexed from which it transpires that petroleum production seized in connection with Baikunthpur P.S. Case No. 35 of 2003 shows adulteration in the sample taken from the underground tank. Kerosene oil was mixed with diesel/petrol seized from the diesel tank in bottles marked Ext. A and E The sample was not as per the specification of the seizure.
11. Considering the pleadings of the parties as well as the submissions made on behalf of the counsels it is obvious that the allegation relates to adulteration of petrol/diesel with kerosene oil by the Manager and staff of M/s Mamta Filling Station in the underground tank. This is an offence under Section 7 of the Essential Commodities Act for contravention of Motor Spirit and High Spirit Diesel (Regulation Page 1692 of supply and Distribution and Prevention of Malpractices) Order, 1998 Bihar Motor Spirit and High Speed Diesel oil Dealers Licensing Orders 1966, was a licensing order. It only dealt with the compliance of terms and conditions of licence and violation thereof and prescribed mode for search and seizure in this connection State Government by notification had adopted the Central order.
12. Central Government for the first time came out with Motor Spirit and High Speed Petrol (Prevention of Malpractices in supply and Distribution) Order 1990 in order to deal and check offence of malpractices like adulteration.
13. In the year 1998, the Central Government by G.S.R. No. 772 (E) dated 1998, made further amendments and in exercise of power conferred under Section 3 of the E.C. Act came out with Motor Spirit and High Speed Diesel (Regulation of supply and Distribution and Prevention of Malpractices) Order, 1998. This order deals with malpractices which includes adulteration, pilferage, stock variation, unauthorised exchange, unauthorised sale, unauthorised possession, over charging and sale of off specification product.
14. Adulteration has been defined under Section 2(a) of this order in following terms” adulteration means the introduction of any foreign substance into motor spirit/high speed diesel illegal or unauthorisedly with the result that the product does not conform to the requirement and specification of the product indicated in Schedule-I.
15. Section 4 of the 1998 Orders authorises 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 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, to enter and search any place or premises being used or suspected to be used by a dealer, transporter, consumer or any other person who is an employee agent of such dealer/transporter/consumer or any other person, to stop and search any person or vehicle inspect books of account or other documents, to 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. From 1998 Order it is evident that only authorised Gazetted officer not below the rank of Dy. S.P. or the person mentioned under Section 4 may with view to securing compliance of the provisions of this order can enter, search and take samples of the products in compliance of provisions of Section 100 of the Cr.P.C. relating to search and seizure.
16. In the present case though allegation has been made regarding adulteration of kerosene oil in the petrol/diesel but the case has been instituted under Sections 20 414 and 120B of the Indian Penal Code and Section 3 of the Prevention of Damage of Property Act, 1982. Section 3 of the Prevention of Damage to Public Act, though Section 3 of Prevention of Damage to Public, Proerty Act has no application in the present case. Section 3 reads:
17. 3. Mischief causing damage to public property: (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in Sub-Section (2) shall be punished with imprisonment for a term which may extend to five years and with fine.
18. The allegation of adulteration is an offence under Section 7 of the Essential Commodities Act for contravention of 1998 order. The Officer-in-charge was neither authorised to institute a case or seize, enter or take samples of the suspected Page 1693 adulterated product. The Collector of the district who is authorised under the Essential commodities Act his permission was also needed that was also not done. With the permission of the Collector the samples which were taken were sent for testing/analysis, to the Laboratory, Hindustan Corporation Limited, Budge Budge, 24 Paragana, West Bengal which is one of the laboratory listed under Schedule III of 1998 order, authorised for testing petroleum product samples. In this view of the matter the test report dated 22.4.2003 cannot be taken as the report of any interested laboratory rather it is a test report of the laboratory authorised to do so under Schedule-III of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order , 1998.
19. In the circumstances when institution of criminal proceeding itself is without jurisdiction, continuation of investigation and thereafter continuation of criminal proceeding in such case will amount to misuse of the process of the court.
20. For the reasons Stated above the institution of F.I.R. itself by the Officer-in-charge of Baikunthpur police station is held to be in violation of Section 4 of Bihar Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order , 1998. Continuation of investigation or any other proceeding on the basis of such F.I.R. will not be in compliance of the provisions of the Essential commodities Act which has over riding effect on all other prevailing act, in view of Section 6 of the Essential Commodities Act.
21. Since, this case comes within these exceptions in which F.I.R. of a criminal case can be quashed. In the result this application is allowed and F.I.R. of Baikunthpur P.S. Case No. 35 of 2003 is quashed.