ARVIND KATCOH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THROUGH this criminal miscellaneous filed under Section 482 Cr.P.C., by one Arvind Katoch, he has prayed for the quashing of FIR No. 87 of 17.7.,1997 at Police Station, Division No. 2, Pathankot, registered under Sections 406/407/411/120-B of Indian Penal Code and Section 7 of Essential Commodities Act, 1955.

(2.) THE prosecution case in brief is that on 17.7.1997, Assistant Sub Inspector Vidya Sagar found two trucks bearing No. HIH-1127 and JK-02-1425 in the area of village Saili Kulian within the jurisdiction of Police Station, Division No. 2, Pathankot. Kerosene was being transferred from tanker No. HIH-1127 to tanker No. JK-02-1425. Assistant Sub Inspector Vidya Sagar took into possession both these trucks alongwith contents thereof. This seizure took place on 17.7.1997 at 1.50 P.M. First Information Report was registered at 3.15 P.M. in the police station. Kerosene was being transferred from tanker No. HIH-1127 with the help of the electric motor and plastic pipe to tanker No. JK-02-1425. One end of the plastic pipe was being held by the driver of tanker No. HIH-1127 and the other end of the pipe was being held by the driver of tanker No. JK-02-1425 and the electric motor was running. Assistant Sub Inspector Vidya Sagar apprehended both the drivers with the said trucks and another person was standing near the tanker and was counting money. Driver of tanker No. HIH-1127 disclosed his name as Ravinder Singh son of Mukhmail Singh, caste Rajput, resident of Nagrot Bhagwan, tehsil and district Kangra. Driver of tanker No. JK-02-1425 disclosed his name as Hans Raj son of Mehanga Ram, caste Ramdasia, resident of House No. 2063, Indira Colony, Ludhiana and the person who was standing near these tankers counting money disclosed his name as Kewal Krishan son of Mohan Lal, caste Arora, resident of Prem Nagar, Saingarh, Pathankot. They were asked as to why they were transferring kerosene from one tanker to another tanker. They could not gave any satisfactory reply nor they produced any bill or document in regard to the kerosene in their possession. About 1000 litres of kerosene was found in tanker No. HIH-1127. About 1998 litres of kerosene was found in tanker No. JK-02-1425. One litre each of kerosene was taken out of the contents of each of the trucks. Learned counsel for the petitioner submitted that actually M/s Goverdhan Singh and Sons purchased 12000 litres of kerosene on 16.7.1997 from M/s Indian Oil Corporation Limited, Marketing Division, Pathankot and the same was filled in tanker No. HIH-1127. Filling was completed on July 17, 1997 at 11.43 A.M. in the depot of Indian Oil Corporation at Pathankot. Copy of the bill is Annexure P-2 issued by the Indian Oil Corporation. Consignment of the tanker was to reach the destination of M/s Goverdhan Singh and Sons, Hamirpur. This tanker was loaded with kerosene and it crossed Punjab border and entered Himachal Pradesh on 16.7.1997. This tanker was checked up at the border of Himachal Pradesh by the officials of Excise and Taxation Department and they issued certificate Annexure P-3 to the effect that vehicle was checked at Chakli Barrier on 16.7.1997 and the same entered Himachal Pradesh. This tanker crossed Himachal Pradesh from Punjab border while towards Hamirpur. This tanker became out of order in the area of town Damtal which was within the jurisdiction of Police Post, Damtal, District Kangra. As there was major defect in the tanker, it could not move. Driver of this tanker No. HIH-1127 hired another tanker No. JK-02-1425 from Pathankot. When tanker No. JK-02-1425 was approaching it was stopped for checking by the Punjab Police before entering the territory of Himachal Pradesh. Tanker No. JK-02-1425 was empty and there was no load which crossed the border. Assistant Sub Inspector got suspicious. Police followed tanker No. JK-02-1425. This tanker was stopped at Damtal near truck No. HIH-1127. Within a shot span, the police party headed by Assistant Sub Inspector Vidya Sagar reached there and started checking tanker No. JK-02-1425. Nothing was found in the truck. It was submitted that no offence under Sections 406/407411 of the Indian Penal Code was constituted even if the FIR is taken at its face value because it was neither stolen property nor there was any embezzlement. It was further submitted that Assistant Sub Inspector Vidya Sagar could not conduct this raid and it was held in Pooran Chand v. State of Punjab, 1988(1), Recent Criminal Reports 138 that in view of the provisions of Clause 15 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978, Assistant Sub Inspector has no jurisdiction whatsoever to search or seize the article in question i.e. kerosene. It was submitted that no officer below the rank of Sub Inspector of Police can enter upon or inspect any business premises of a dealer with a view to secure the compliance of the provisions of this Order or to satisfy himself that the provisions of this order were being complied with. Similarly this clause further lays down that no officer below the rank of Sub Inspector of Police shall seize kerosene found in possession of a dealer in respect of which he has reason to believe that the contravention of this Order has taken place. He drew my attention to Harpal Singh v. State of Punjab, 1991(3) Recent Criminal Reports, 308, where, it was held that no police officer below the rank of Sub Inspector could act upon or search the business premises of dealer under Clause 15 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978 issued under Section 3 of the Essential Commodities Act, 1955.

(3.) A bare glance through the above clause leaves no doubt that special provisions have been incorporated in this clause by empowering the Director, the District Magistrate, the Assistant Director, Food and Supplies, the Inspector or any other Officer not below the rank of Sub Inspector of Police to enter upon or search any premises of the dealer or any premises on which such officer has reason to believe that light diesel oil or kerosene or both have been, or being or are likely to be kept, stored, distributed or disposed of in contravention with the provisions of this Order. Admittedly, the Essential Commodities Act as well as the above referred order issued by the State Government under Section 3 of the said Act are special laws whereas the Code of Criminal Procedure is general law. It is well settled law that the provisions of the Special Act or Law will prevail upon the provisions of the general law. It appears that the special protection has been given to the offenders indulging in the sale of light diesel or kerosene oil in contravention with the provisions of this Order by empowering the Officers holding responsible post only to detect the storage of such article in view of the nature of the offence. It is, thus, apparent that Assistant Sub Inspector had no power to search and seize kerosene under Clause 15 of the Punjab Light Diesel Oil and Kerosene dealers Licensing Order, 1978. It will thus be an exercise in futility to continue with this prosecution. For the reasons given above, this criminal miscellaneous is allowed and FIR No. 87 dated 17.7.1997 is quashed. Petition allowed.