PREM DEO NARAYAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this quashing application, the petitioner has prayed for quashing the order taking cognizance dated 18.9.1994 under Sections 419/420 of the Penal Code read with Sec. 7 of the E.C. Act and also the entire criminal prosecution relates to Katras (Rajganj) P.S. Case No. 469/92 corresponding to C.R. No. 4490/92 pending in the Court of Special Judge (E.C. Act), Dhanbad.

(2.) The fact in short for the purpose of this application is that informant of this case who was the owner of the truck bearing registration No. BIR 7891 lodged a written report to the Incharge, Rajganj O.P. claiming therein that his driver purchased diesel from Om Sendee Station and at the time, the petitioner who is the brother of the owner of the sendee station was present and his servant Mangal Sao gave diesel in the truck which was found to be adulterated with water. The S.I. attached to the O.P. instituted this case and made an investigation and also made a search and seizure and took sample of the diesel from the petrol pump which was kept in a drum and sent the same to the Director, F.S.L., Patna and it was found that in the diesel, there was mixing of the water and so after completion of the investigation submitted charge-sheet under Sec. 419/420 of the Penal Code and also under Sec. 7 of the E.C. Act.

(3.) The petitioner challenged the order of the cognizance by the learned E.C. Judge and initiation of the proceeding mainly on the ground that apparently search and seizure was made under the Motor Spirit and High Speed Diesel (Prevention of Malpractice in Supply and Distribution) order 1990 (to be called hereinafter only 'Motor Spirit Order) and in view of the Clause 7 of the said order the S.I. of police i.e. Investigating Officer of this case is not at all competent in view of the notification of the Government empowering certain officers and only the Police Officer in the rank of S.P. is competent to make search and seizure and required to take sample. Further more as per Control Order, it has been specifically mentioned in Schedule III that sample taken for analysis after search and seizure, is required to be sent to the specified laboratory as mentioned in the Schedule. But in the instant case, the sample was sent to Director, F.S.L., Patna which is not in the schedule. In that view of the matter, the entire case under Sec. 7 of the E.C. Act for violation of the aforesaid Motor Spirit Order 1990 is apparently illegal. Further more, the special Judge E.C. Act in view of the provisions of Sec. 12-AA of the E.C. Act has no right or power to try the cases under Sections 419/420 of the Penal Code because these offences are not triable under the summary procedure. So in any view of the matter, the entire case is not triable by the E.C. Judge himself.