IN THE HIGH COURT OF JHARKHAND, RANCHI.
Cr.M.P. No. 1146 of 2006
Chen Pao Lin ................................................... Petitioner
Versus
1.The State of Jharkhand
2.Shri Rajesh Emaneul Patro............................... Opp. Parties.
Coram :- Hon'ble Mr. Justice D.K.Sinha
For the Petitioner :-Mr. Indrajeet Sinha
Mr.Bibhash Sinha
For the State :- Mr. Md.Hatim A.P.P.
5/22.12.2008
The petitioner Chen Pao Lin has invoked the inherent
jurisdiction of this Court under section 482 of the Code of Criminal
Procedure with the prayer for quashment of his entire criminal
proceeding initiated in relation to Bistupur P.S. Case No. 257 of 2005
corresponding to G.R.No. 2074 of 2005 including the order dated
5.2.2006 whereby the C.J.M. Jamshedpur took cognizance of the
offence under section 7 of the Essential Commodities Act against the
petitioner, now pending before the S.D.J.M. Jamshedpur.
2. The prosecution story in short was that on the written
report presented by the Opposite Party No.2 Rajesh Emanuel Patro,
Nazareth Deputy Collector, East Singhbhum, Jamshedpur before the
Bistupur police station alleging interalia that he along with the other
witnesses including the Addl.District Magistrate (Law and Order)
Jamshedpur, conducted search of Fast Food (Chinese) Vehicle No. BR-
0634 wherein he found that the petitioner was using the domestic L.P.G.
Gas Cylinder weighing 14.02 K.G., available at subsidized rate for
commercial purposes in the Fast Food(Chinese) vehicle. Besides, two
others LPG gas Cylinders weighing 5 K.G. each of Indane were also
found. It was alleged that the use of LPG Gas Cylinders made
available at subsidized rate in commercial purposes was illegal as it was
in contravention of Clause 13 of LPG(Regulation of Supply and
Distribution)Order 2000. The opposite party No.2 made seizure of LPG
Gas Cylinders weighing 14.02 K.G and two others LPG Gas Cylinders
weighing 5 K.G. each along with one gas regulator in presence of the
witnesses. On the basis of the written report and the seizure list,
Bistupur P.S. Case No. 257 of 2005 was registered against the
petitioner for the offence under section 7 of the E.C. Act.
3. Mr. Indrajeet Sinha, the learned counsel, for the petitioner
exhorted that the informant, who was the Deputy Collector, Nazareth,
was not within his competence to make search and seizure as he acted
in contravention of Clause-13 of LPG (Regulation of Supply and
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Distribution)Order, 2000. Clause-13 speaks about the power of entry,
search and seizure.
(1) Any officer of the Central or the State Government not
below the rank of Inspector duly authorized by a general or a
special order, by the Central Government or the State Government
as the case may be or any officer of Government Oil Company not
below the rank of Sales Officer, authorized by the Central
Government, may with a view to securing due compliance of this
order or any other made thereunder:
(a) stop and search any vessel or vehicle used
or capable of being used for the transport or
storage of any petroleum product.
(b) enter and search any place.
(c) seize stocks of liquefied petroleum gas along
with container and/or equipments, such as
cylinders, gas cylinder valves, pressure
regulator and seals 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.
(2) The sales officer of a Government Oil Company shall be
authorized to secure compliance of this order by the distributors
appointed under the public distribution system and or by the
consumer registered by them.
4. Admittedly, the informant/opposite party No.2, an officer of
the rank of the Deputy Collector, who made search and seizure in the
vehicle of the petitioner dealing in Fast Food ( Chinese) behind the hotel
known as “New Chhappan Bhog” at Bistupur, was not authorized to
make search and seizure and therefore, the criminal prosecution initiated
against the petitioner in contravention of specific provisions of law was
not sustainable. The learned counsel relied upon the decision reported
in (2000) 8 S.C.C. 590.The Apex court in the case of Roy V.D Vs.
State of Kerala observed :-
“The power under section 482 Cr.P.C. has to be
exercised by the High Court, inter alia to prevent
the abuse of the process of any court or
otherwise to secure the ends of justice. Where
Criminal proceedings are initiated based on
illicit material collected on search and arrest
which are per se illegal and vitiate not only a
conviction and sentence based on such material
but also the trial itself, the proceedings cannot
be allowed to go on as it cannot but amount to
abuse of the process of the court; in such a case
not quashing the proceedings would perpetuate
abuse of the process of the court resulting in
great hardship and injustice to the accused. So,
exercise of power under section 482 Cr.P.C. to
quash proceedings in a case like one in hand,
would indeed secure the ends of justice.”
5. Though it was urged on behalf of the State that the
opposite party No.2 under the delegated power of the Deputy
Commissioner acted by conducting the raids but the Deputy
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Commissioner had no authority to delegate the power which was
prohibited under the law.
6. Regard been had to the facts and circumstances of the
case, I find that Clause-13 of LPG (Regulation of Supply and
Distribution) Order, 2000 is very specific that the authority delegated to
the Opposite party No.2/ Deputy Collector (Nazareth) by the Deputy
Commissioner, East Singhbhum was not an authority delegated either
by the Central Government or the State Government to conduct raid or
to make certain seizure. Admittedly, the Deputy Commissioner is not the
State Government under the Rules of Executive Business and in
similar situation this Court in Cr.M.P. No. 722 of 2006 had quashed the
criminal prosecution of the petitioner-accused on 13.10.2006 wherein
also the authority of a Dy.Collector in making search and seizure was
challenged and I find that defence of the petitioner stands on similar
footing.
7. Under the facts and circumstances, I observe that the
criminal prosecution of the petitioner including the cognizance order
dated 5.2.2006 passed by the Chief Judicial Magistrate, Jamshedpur in
relation to Bistupur P.S.Case No. 257 of 2005 corresponding to
G.R.No.2074 of 2005,now pending in the court of SDJM Jamshedpur is
not maintainable under the law, accordingly the same is quashed. This
petition is allowed.
I.A. No. 975 of 2008
In view of the above order passed in Cr.M.P. 1146 of 2006
the instant I.A. stands disposed of.
(D.K.Sinha, J)
SD/AFR