Muhammed Haneefa S/o Bhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **MONDAY, THE 25TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** **Crl.MC.No. 4501 of 2017 () ---------------------------** **C.C.54/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MANNARKKAD CRIME NO. 712/2009 OF MANNARKKAD POLICE STATION, PALAKKAD** **PETITIONER/2ND ACCUSED :** **------------------------** **MUHAMMED HANEEFA S/O BHAVAN, AGED 48 YEARS, PERUMKOLLAN PADAM, THUPPANAD, KALLADIKODU, PALAKKAD, PIN - 686 006.** **BY ADV. SRI.K.T.SAJU** ## **RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT :** **----------------------------------------------** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANNARKKAD POLICE STATION THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **BY SPECIAL PUBLIC PROSECUTOR, SRI. SURESH BABU THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON 25.08.2017 PASSED THE FOLLOWING:** ## **Crl.MC.No. 4501 of 2017 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO.54/13 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MANNARKKAD.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** **//TRUE COPY//** **PA TO JUDGE** **rk** ## **K.ABRAHAM MATHEW J.** --------------------------------------Crl.M.C.No.4501 of 2017 ----------------------------------------Dated this the 25[th] day of August, 2017 ## **ORDER** The petitioner is the second accused in C.C.No.54 of 2013 on the file of the Judicial Magistrate of the First Class, Mannarkkad. The first accused is an authorised retail distributor of ration articles. The allegation is that on 1.11.2009 the first accused sold 100 litres of kerosene to the petitioner, who purchased it for use other than cooking or illumination. The Sub Inspector of Police, Mannarkkad arrested both of them, seized the kerosene along with the vehicle used for its transportation at 1 in the morning just in front of the shop of the first accused. The Sub Inspector filed final report alleging that they committed the offence under Section 7(1)(a)(ii) read with Section 3 of the Essential Commodities Act (for short the Act). In this petition filed under Section 482 Cr.P.C the proceedings in the trial court are sought to be quashed mainly on the grounds that the facts of the case do not attract any offence, and the arrest, seizure and investigation are illegal since the Sub Inspector was not competent to do so. 2. Heard Sri.K.T.Saju, the learned counsel for the petitioner and Sri.Suresh Babu Thomas, the learned Additional State Prosecutor. 3. At the hearing the argument was confined to the contention regarding competency of the police officer. 4. Section 3 of the Essential Commodities Act empowers the Central Crl.M.C.No.4501 of 2017 2 Government to make orders for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce in essential commodities for maintaining or increasing supplies of any essential commodities or for securing their equitable distribution and availability at fair prices. In exercise of these powers the Central Government have made the Kerosene (Restriction of Use and Fixation of Ceiling Price) Order 1993 (hereinafter called the Kerosene Order). Clause 3 of the Order runs as follows: **Restriction on use of kerosene oil supplied under public distribution system** -(1) No person shall use kerosene oil supplied under the public distribution system for any purpose other than cooking and illumination: Provided that the Central or State Government may by order permit any person to use kerosene oil for such other purposes as it may specify in that order. (2) No dealer appointed under the public distribution system or a transporter shall sell, distribute or supply kerosene oil under the public distribution system to any person other than the person to whom the supplies are meant for. 5. The Kerosene Order does not provide for punishment for contravention of the Order. The punishment is provided in Section 7 of the Essential Commodities Act. To put it differently, neither the Act, nor the Order has independent existence. They have to be read together; they are complementary. Section 7(1)(a)(ii) of the Act is extracted below: **Penalties** -(1) If any person contravenes any Order made under Section 3- (a) He shall be punishable (ii) In the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. Section 8 of the Act also is relevant: Any person who attempts to contravene or abets a Crl.M.C.No.4501 of 2017 3 contravention of any order made under Section 3 of the Act shall be deemed to have contravened that order. 6. Section 10A of the Act makes every offence punishable under it a cognizable offence. 7. Clause 9 of the Kerosene order runs as follows: **Power of entry, search and seizure** -(a) An Officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by the Central Government or any Officer authorised and notified by the Central Government, or any officer not below the rank of Sales Officer of a Government Oil Company authorised by the Government and notified by the Central Government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of the satisfying himself that this Order or any order made thereunder has been complied with. - i. stop and search any vessel or vehicle or other conveyance which the officer has reason to believe, has been, or is being, or is about to be used in contravention of this order - ii. enter or search any place with such aid or assistance, as may be necessary and - iii.seize and remove with such aid or assistance, as may be necessary, books, registers and other records pertaining to kerosene business, along with vehicle, vessel or any other conveyance used for carrying such stock, if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorise the taking of all measures necessary for securing the production of the kerosene at the office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 of 1955) for their safe custody pending such procedures - (b) the provisions of Sec.100 of the Code of Criminal Procedure 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this order). ## Crl.M.C.No.4501 of 2017 4 The power of entry, search and seizure is given to no police of any class by this Order. This is the basis on which the learned counsel submits that a police officer has no power of search or seizure and the whole exercise undertaken by the Sub Inspector is illegal. Learned counsel for the petitioner has brought to my notice three decisions of this court which have taken the view that unless power of entry, search and seizure is given to the police by the Order made under the Essential Commodities Act, exercise of such power by the police is illegal and the prosecution of the accused by the police is liable to be quashed. I shall refer to those decisions presently. 8. A clause similar to clause 9 in Kerosene Order is found in Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000. In **Abdul** ## **Hameed v. Station House Officer, Cherpulassery Police Station (2013** **(2) KHC 386)** the argument was that clause 13 of the said Order does not empower a police officer to conduct search of places and to seize articles and the seizure effected by the police officer was illegal. The learned Single Judge of this court held that the seizure made by Sub Inspector of Police was illegal and the prosecution was invalid. But in that case the learned Public Prosecutor conceded that Sub Inspector of Police had no such power. This view was taken by another learned Judge in **Haridas v. State of Kerala (Crl.M.C.No.6492 of 2015)** which also was a case relating to liquefied petroleum gas. 9. Clause 9 of the Kerosene Order came up for consideration before another learned Single Judge of this court in **Abdul Hameed v. Station House Officer (2016 KHC 843)** . It was also a case where the seizure was effected and investigation conducted by a Sub Inspector of Police. The learned Crl.M.C.No.4501 of 2017 5 Judge, though referred to Section 10A of the Essential Commodities Act, did not accept the prosecution argument that since the offence is a cognizable one any police officer has the power of search, seizure and investigation. The learned Judge relied on the decisions of this court in **Abdul Hameed v. Station House officer** (supra) and **Haridas v. State of Kerala** (supra) and also a Division Bench of the Patna High Court in **Ram Chandra Pan Sari v. State of Bihar, LAWS (PAT 1987 3 48)** to hold that a police officer has no authority to investigate the case. ## 10. In **State of Karnataka v. Appaiah Laxminarayana(1986** **Crl.L.J.1705)** a learned Single Judge of the Karnataka High Court held that even though a police is not empowered to conduct investigation by an Order made under section 3 of the Essential Commodities Act, a police officer can do so since Section 10A of the Act makes every offence under it a cognizable one. But a contrary view was taken by a division of the same High Court in **State of** **Karnataka v. Nageshwara Rao (MANU/KA/0379/1986)** . The Division Bench held: “Although as provided under Section 10-A of the Essential Commodities Act, the offences committed under the Act are made cognizable, but the supervisory power regarding the enforcement of the orders are specifically given to the other officers, other than the police, as provided under Rule 17(1). That being so, the police officer should not have taken the responsibility on himself or supervising the enforcement of the order, as he had done here, in the case.” Later, a learned Single Judge of the very same High Court took a different view ## in **Dharanarendrappa H.N v. State of Karnataka (1991 Crl.L.J.2262)** . The court held that since every offence punishable under the Essential Crl.M.C.No.4501 of 2017 6 Commodities Act is a cognizable offence, a police officer has the power to investigate into the offence though an Order made under the Act does not confer on him such power. For this the learned Judge relied on the decision of the Supreme Court in **Satya Narain Musadi and others v. State of Bihar** ## **(AIR 1980 SC 506).** 11. Similar question came up for consideration before the Rajasthan High Court in **State of Rajasthan v. Prakash Chandra and others (1995 Crl.L.J.2295).** Relying on the decision of the Supreme Court in **State of Maharashtra v. Natwarlal Demodardas Soni (AIR 1980 SC 593)** the court held that since the offences under the Essential Commodities Act are cognizable offences, a police officer can conduct investigation without the order of a Magistrate. 12. In **Suresh Kumar v. State of Haryana (1996 Crl.L.J.4216)** a learned Single Judge of Punjab and Haryana High Court took the view that the investigation conducted by a police officer into an offence committed under Section 7 of the Essential Commodities Act read with clause (3) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 1993 was illegal. 13. A Division Bench of the Bombay High Court also has had the occasion to consider the question. In **Dinesh Bhawarlal Sarda v. State of Maharashtra (2009 Crl.L.J. 1007)** the Bench took the view that since Section 10A of the Essential Commodities Act declares every offence under the Act a cognizable one, a police officer can investigate into the offence without the order of a Magistrate though an Order made under the Act does not confer Crl.M.C.No.4501 of 2017 7 such power on the police. 14. The learned Additional State Prosecutor has brought to my notice the decision of this Court in **Somanath v. State of Kerala (1989 (2) KLT 282** . That was a case filed under the provisions of the Indecent Representation of Women (Prohibition) Act. Under Section 5 of the Act a gazetted officer authorized by the Government is empowered to search and seize any article or publication involved in the case. It was contended that Sub Inspector who conducted the search and seizure in that case had no such power. The learned Judge held that since Section 8(2) of the Act makes every offence under that Act a cognizable one, a police officer can conduct investigation without the order of a Magistrate. 15. Under the Customs Act customs authorities have been given the power of search and seizure. In **Natwarlal Demodardas Soni** 's case **(AIR 1980 SC 593)** (supra) police officers conducted a search on the premises of the accused and recovered gold bars having foreign marking. The police filed a report under Section 173(2) Cr.P.C alleging commission of the offences under Section 135(a) read with 135(i) and Section 135(b) read with Section 135(1) of the Customs Act 1962 and Rule 126 (H)(2)(d) read with Rule 126 P(2)(iv) of the Defence of India Rules 1962. The customs authorities also initiated proceedings under the Customs Act. A contention was raised that the search and seizure conducted by the police was illegal. The Supreme Court held: “Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offense had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and Crl.M.C.No.4501 of 2017 8 further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs”. ## 16. In **Satya Narain Musadi** 's case **(AIR 1980 SC 506)** which was relied on by the Karnataka High Court in **Dharanarendrappa** 's case (supra) the allegation was that the accused contravened the provisions of the Bihar Food Grains Dealers Licensing Order, 1967 and thus committed the offence under Section 7 of the Essential Commodities Act. The Supreme Court took note of the provision in Section 10A of the Act and held thus: “..............the offences under the Act are declared as cognizable and, therefore, the police officer would be entitled to investigate into such offences without the order of a Magistrate and if the police officer proceeds to investigate into offence it is obligatory upon him to submit a report under Section 173(2)”. 17. As mentioned earlier, contravention of the Kerosene(Restriction of Use and Fixation of Ceiling Price) Order 1993 is an offence under Section 7 of the Essential Commodities Act, under which the Order has been made. The decisions of the apex court in **Satya Narain Musadi and others v. State of Bihar** (supra) and **State of Maharashtra v. Natwarlal Demodardas Soni** (supra) have in explicit terms declared the law: when information is received by a police officer about contravention of an Order made under the Essential Commodities Act, he has the power to conduct an investigation into it since the offences under the Act have been declared cognizable by Section 10A of the Act. Search, seizure and arrest are steps in investigation. The Order made under the Act need not confer such powers on police officers. 18. The source of the power of the police is the provision in the Act. On Crl.M.C.No.4501 of 2017 9 the other hand, the source of power of the other officers is the clause in the Order made under the Act. An order made under an Act cannot make a provision nullifying the provisions in the Act. For this reason also it can be held that the view that a police officer does not have the power of investigation unless the Order made under the Essential Commodities Act confers on him such power is wrong. 19. There appears to be a fine destination between the power that may be exercised by a police officer in the case of a cognizable offence and the power that may be exercised by the officers mentioned in cluase 9 in the Kerosene (Restriction of Use and Fixation of Price) Order. Only when he gets information about commission of a cognizable offence, a police officer can exercise the power of entry, search and seizure available to him in the course of an investigation . But the officers who have been given such power by Clause 9 of the Order may do so even if no such information is received by him. The powers given to those officers are wider than the powers available to the police officer, in as much as the police can investigate only into an offene while the other officers power is not so restricted. The object of the investigation by the police is only to identify the offender and prosecute him in a criminal court, while the object of the power given to the other officers is to ensure compliance with the Order. 20.The decisions of this court in **Abdul Hameed v. Station House Officer, Cherpulassery Police Station (2013(2) KHC 386), Haridas v. State of Kerala (Crl M.C.No.6492 of 2015)** and **Abdul Hameed v. Station House Officer (2016 KHC 843)** are per incuriam. The seizure effected and Crl.M.C.No.4501 of 2017 10 the arrest of the petitioner made by Sub Inspector of Police are legal since contravention of the Order made under Section 3 of the Essential Commodities Act is an offence under 7 of the Act and the offences under the Act have been declared cognizable by Section 10A of the Act. In the result, this Crl.M.C is dismissed. Sd/- ## **K.ABRAHAM MATHEW JUDGE** cms /True copy/ P.S.to Judge