GENDMAL BHIKULAL BANTHIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. By consent, the rule is made returnable forthwith. The petitioner challenges the proceedings in EC Case No. 3/95 on the file of the Sessions Judge, parbhani being in abuse of process of law on two grounds, firstly, that the seizure of the product in question was by the officers who were not duly authorised to conduct raid and, therefore, the entire proceedings pursuant to such seizure are totally vitiated in law : and secondly, that the product in question is not an adulterated product and, therefore, no prosecution is warranted.

(2.) THE facts, in brief, relevant for the decisions are that pursuant to the raid conducted on 5. 3. 1995 by the Police Officers of the Nanalpeth Police Station, parbhani, at the Petrol Pump of the petitioner herein, the investigation was carried out and charge sheet was filed against the petitioner and two others for the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act, consequently, the charge was framed against all the three accused on 28. 12. 1998 to the effect that all the accused being authorised to hold stock of Petrol and to sell the same as an essential commodity, at their Petrol Pump at Parbhani, they had mixed kerosene in the Petrol and had sold it and thereby had contravened the provisions of law and committed offence unde Section 3 read with Section 7 of the essential Commodities Act. When the matter came up for recording of evidence on 18. 12. 2000, the petitioner sought leave of the trial Court to argue the matter regarding absence of materials on record to support the charge framed against them. The learned Additional Public Prosecutor realising the defects in the materials placed before the trial Court to support the charge as was then framed, prayed for framing of charge for contravention of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution ) Order, 1990 (hereinafter referred to as the said 1990 Order ). The same was objected to by the petitioner and after hearing the parties, the trial Court rejected the objection raised by the petitioner and ordered the charge to be framed against all the accused for contravention of the said 1990 Order r/w Section 3 r/w Section 7 of the Essential Commodities Act. Hence, the present petition.

(3.) WHILE assailing the impugned order, the learned Advocate for the petitioner has submitted that clause 7 of the said 1990 Order clearly requires that the raid and seizure of the commodity has to be by the officers duly authorised in that regard in terms of the provisions of the said 1990 Order. Undisputedly, in the case in hand, search and seizure was by the Police authorities and they were not the authorised officers within the meaning of the said expression under the said 1990 Order. Being so, considering the decision of the Apex Court in the matter of Roy V. D. v. State of kerala reported in 2000 AIR SCW 4005, the entire proceedings are vitiated and, therefore, are liable to be quashed. Reliance is also placed in the decision of Rajesh agarwal v. State of Bihar reported in 1999 Cri L J 1729 in support of the contention that the search and seizure by unauthorised officer is illegal and therefore, the court is not entitled to take cognizance of the alleged offence disclosed pursuant to such illegal search and seizure. The learned Advocate then submitted that the product in question is on the face on it, not an adulterated product. According to the learned Advocate for the petitioner, the records available before the Court clearly disclose that the District Supply Officer, Parbhani was pleased to order the sale of the Petrol and Diesel on the Petrol Pump of the petitioner by order dated 8. 3. 1995 and the sale order was subjected to appeal before the Additional Divisional commissioner, Aurangabad. The appellate authority by its order dated 8th August, 1995, had clearly observed that the variations in the density of both the Petrol and diesel were far below and within the permissible limit of +/- 0. 0030 as laid down in schedule I Clause II (a) of the said 1990 Order and therefore, both the products conformed to the requirements specified in the said Schedule I of the said 1990 Order. Hence, there was no case of any adulteration of the product so as to warrant prosecution under any of the provisions of the said 1990 Order. It is also submitted that the F. I. R. admittedly did not disclose any offence punishable under the provisions of the said 1990 Order as well as in violation of any of the Orders issued under Section 3 of the said Act. Being so, there was absolutely no case for proceeding for violation of any of the orders under Section 3 of the said Act and on that count also, the prosecution is liable to be quashed. Reliance is placed in the matter of Kallol Kumar Mukherjee v. State of W. B. reported in 1995 Cri L J 654. The learned Addl. P. P. , on the other hand, submitted that the trial Court has considered all the contentions sought to be raised and on detail appreciation of the materials on record, it has prima facie, formed opinion about the case for proceeding against the petitioner for contravention of the provisions of the said 1990 Order r/w Sections 3 and 7 of the said Act, therefore, no fault can be found with the impugned order and hence, the petition is liable to be dismissed.