Venkatesan @ Venkatesh v. State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA Crl.O.P Nos.17889 of 2021 and Crl.M.P. No.9825 of 2021 Venkatesan @ Venkatesh ... Petitioner Vs.
1. State represented by The Deputy Superintendent of Police, CSCID, Salem.
2. Annapoorani ... Respondents Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the records and quash the proceedings as against the petitioners in Crime No.113 of 2021 pending on the file of the first respondent.
For Petitioners : Mr.Mohamed Riyaz For Respondent-1 : Mr. A.Gopinath Government Advocate (crl.side)
ORDER
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This petition has been filed to call for the records in Crime No.114 of 2021 pending on the file of the first respondent and quash the same as against the petitioner.
2. The petitioner is the sole accused. The case of the prosecution is that on 05.08.2021, the defacto complainant who was the then Tahsildar of Kadayampatti Taluk, Salem, received an information about the sale of adulterated diesel at Kethunaicketpatti Puthur Village from a diesel tanker lorry; when he went to the said spot at about 08.00 hrs along with a team comprising of Revenue Inspector, Village Administrative Officer, Inspector of Police, Theevattipatti and the accused was found to be unloading adulterated diesel from tanker lorry bearing Reg. No.TN-39-CD-2323 and filling it in a barrel in the land belonging to one Geetha; after conducting due search and seizure, the defacto complainant has given a complaint to the first respondent and on the basis of which a case has been registered in Cr. No.113 of 2021 for the offence under Section 3(4) of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 2005 and 7(1)(a)(i) of Essential Commodities Act, 1955.
3. The learned counsel for the petitioner submitted that as per Clause 7 2/8
of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as 'the order', issued in view of the powers conferred by Section 3 of the Essential Commodities Act, 1955, the authorised person who has the power of search and seizure in these types of case is a police officer not below the rank of Deputy Superintendent of Police duly authorised by general or special order of the Central Government or State Government as the case may be.
; in the case on hand, the search and seizure was done by a person who held the post of Tahsildar which is illegal; as per Clause 8(4) of the order, the authorised officer shall forward a sample of the product taken within ten days to the laboratories mentioned in Schedule III of the order or any other authorised laboratory notified by the Government and the laboratory shall furnish the report to the authorised officer within a period of twenty days of the receipt of the sample and a copy of the test result shall be communicated to the concerned person involving in the offence within a period of five days from the date of receipt of the same; since the mandatory statutory requirements have been violated, the entire proceedings get vitiated and hence the FIR should be quashed.
4. The learned Government Advocate (Crl.side) submitted that samples 3/8
were collected by the Deputy Superintendent of Police after the compliant was given and he had sent the sample to the Director, Indian Institute of Technology, Chennai for chemical analysis through Court on 08.10.2021 and the analysis report was received on 23.09.2022; as per Section 5 of the Essential Commodities Act, 1955 the Inspector of Police can be delegated with the powers in relation to the matters falling under the Essential Commodities Act and hence there is no legality in the proceedings; the proceedings cannot be quashed merely on the ground that investigation is not valid.
5. In support of his above contention he relied on the judgment of the Hon'ble Supreme Court in R.A.H.Siguran Vs. Shankare Gowda @ Shankara and another reported in (2017) 16 SCC and H.N.Rishbud Vs. State (UT of Delhi) reported in AIR 1955 SC 196.
6. As it appears from the order, it is seen that the power of search and seizure has been explicitly given only to a police officer not below the rank of Deputy Superintendent of Police duly authorised by the Central Government or State Government as the case may be. In the case on hand, the search and 4/8
seizure has been conducted by the Tahsildar / defacto complainant herself and the seized articles have been handed over to the police at the time of giving the complaint. Even according to the counter affidavit filed by the first respondent, the Investigation Officer has only collected sample from the alleged adulterated diesel. The core part of the act of search and seizure has been done by the Tahsildar and not by the police officer. The law contemplates that after such seizure was made by a authorised person, the seized stocks should be produced before the Collector or District Magistrate who has the jurisdiction under the provisions of the Essential Commodities Act, for safe custody. In fact Clause 7 of the order mandates an exhaustive procedure under which the search and seizure should be done in these type of cases.
7. The learned counsel for the petitioner attracted the attention of this Court to the judgment of this Court held in Hindustan Petroleum Corporation Limited Vs. Geetha Kasturirangan reported in 2010 SCC OnLine Mad 2551 wherein it is held that if the search and seizure was done by the authority not authorised in the Government Order, all consequential action would become unlawful.
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8. It is seen that the sample has been sent to the laboratory only on 08.10.2021. As stated already Clause 8(4) of the order mandates that a sample of the product seized should be sent to the laboratory within a period of ten days. The seizure was made on 05.08.2021 but the sample was sent for chemical analyst only on 08.10.2021, which is beyond ten days. As per Clause 8(6) of the said order the authorised officer shall communicate the test results to the accused within a period of five days. Even though it is submitted that the test results have been obtained on 23.09.2022, a copy of the same was not furnished to the accused till now. In fact the rule also mandates that the laboratory has to give its analyst report within a period of twenty days of getting the sample for analysis. But in the instant case, despite the sample has been sent on 08.10.2021, the analysis report has been sent only on 23.09.2022 which is nearly after a delay of one year.
9. The very object of prescribing time limit to send the sample for analysis and get the test results in a prescribed time is to see that no further contamination is occurred in chemical products. Unless the mandatory time limits are complied, the test results will be unreliable. The object of 6/8
prescribing time limit for furnishing the copy of the analysis report to the accused is to enable him to retest the sample by sending it to referral laboratory. The delay occurred in each stage of investigation has deprived the accused from availing due opportunity to defend his case.
10. Since the mandatory procedure and the prescribed time limit has been violated, the entire proceedings would get vitiated and no purpose will be served if the investigation is allowed to be continued. Hence, I feel it is a fit case where the powers of this Court under Section 482 Cr.P.C. should be exercised to quash the FIR.
11. Accordingly, this Criminal Original Petition is allowed and the FIR in Cr. No.113/2021 on the file of the first respondent is quashed. Connected miscellaneous petition is closed.
06.01.2023 Index : Yes/No Speaking Order : Yes / No bkn 7/8
R.N.MANJULA, J., bkn To:
1. The Inspector of Police, Naduvattam Police Station, Naduvattam, Udhahamandalam Taluk, Nilagiri District.
2. The Public Prosecutor, High Court, Madras.
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