Crim inal AppealNo30 v. Mr SuniI Nehra Senior Deput yAdvocat e

DeaI ers LicensingFirst Am endm ent lOrder 1994 hereinaft erreferred ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh as 1994 OrderI and t herebycom m it t ed an offence punishableunder JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 4 33 1 0 0 I 0 I 2 r I 08 0 V2 Z Crim inal AppealNo30B of 1999 3 Sect ion 70f t he 1955 Act Prosecut ionexam ined Am ar Nat h who was t hen post edas Assist ant Sub I nspect oras PV He st at ed t hat on receiptof ruqa ExA form al case FlR EPAll was regist ered PW2 Kulbhushan Const able t endered his affidavit Ex He had t aken nine bot t ies of sam pleof kerosene oii on 41 998 t o ForensicScience Laborat oryMadhuban wit ness Lal Khan was givenup as won Manm ohan Singh I nspect or Food and Supplies Taoru appearedas PW 3 He deposedt hat he was associat ed wit h t he raiding part yand found accused in possessionof nine drum s det ails of which have been givenearlier He funher st at ed t hat recovered anicles t aken t o Police St at ion in Tat a 407 vehicle He furt her st at ed t hat he had sm elled t he kerosene oil Sm ell was prom inentand t herefore t he art icles were cont raband Gobind Ram Head Const able appearedas PW He has t endered his aft ldavit ExPE He st at ed t hat t he kerosene oil and t he sam pleswere deposit edin t he Malkhana and t he kerosene was sold in auct ion and t he sale proceedswere deposit edin t he t reasury Kapt anSingh Sub House OHicer appeared as PlN He deposedwhat was st at ed in t he ruqa ExPA He st at ed t hat from nine drum s one bot t le 01kerosene as sam plewas t aken int o possession 18 em pt ydrum s were exhibit ed as Exl t o ExPl 8 m easure Ex19 funnel ExP20 and halfdrum ExP21 I n t his appeal challengeis t o t he j udgm entpassed by t he ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh SpeciaiJudge Gurgaonwho found t he appellant sguilt yof oHence JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 4 34 C 0 0 I C5 I Z m a5 r0 7 Z Crim inalAppealNo30SB of 1999 4 under Sect ion 70f 1955 Act The SpecialJudgeGurgaon sent encedt he appellant st o undergot hree years rigorousim prisonm ent and pay fine of Rsl 0001e in defaultof paym entof fine t o undergo rigorousim prisonm entfor t wo m ont hs I t will be peninentt o m ent ion of t he 1955 Act prescribest hree m ont hs as heret hat Sect ion 7aKiil m inim umpunishm entand seven years as m axim um punishm ent Mr Raj inderGoyalAdvocat e appearingfor t he appellant s has read 1976 Order Clause 11 of t he said Order read as under 11 Power of ent ry search and seizurel The Direct or t he Dist rict Magist rat et he Dist rict Food and SuppI iesOfficer t he Assist ant Food and SuppliesOfficer t he I nspect orFood and Supplies or any ot her officer aut horized in t his behalf by t he St at e Governm ent m ay wit h a view t o securing com pliancewit h t his order t o sat isfyhim self t hat t his order has been com pliedwit h 11 I t was st at ed t hat 1976 Order was am ended in t he year 1986 and in CI ause 11 followingam endm entwas addec e I n t he said order in clause 11 in sub clause 11 for t he words The Direct or t he Dist rict Magist rat et he Dist rict Food and SuppliesOm cer t he Assist ant Food and Supplies Om cer t he I nspect orFood and Suppliesor any ot her officer aut horized in t his behalf by t he St at e Governm ent ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh t he words or any officer of t he Food and Supplies Depart m entnot below t he rank of t he Assist ant Food JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 35 95 Crim inal AppealNo 830m SBof 1999 5 and SuppliesOfficer wit hin t he area of shall be subst it ut ed Counselfor t he appellant sfunher referred t o 1994 Order and st at ed t hat no changein Clause 11 was eHect ed and as per t he change envisagedby am endm ent in 1986 no search could be carried by any officer below t he rank of Assist ant Food and SuppliesOm cer To fonify t his subm ission reliance has been placedon j udgm entrendered in Ashok Kum ar v St at e of Haryana19911 Recent Crim inal Repons 140 wherein it was held t hat Clause 11 of 1976 Order was am ended vide not ificat ion dat ed 25 1986 and t hereaft er if a search is conduct ed by an I nspect orwho is Assist ant Food and SuppliesOm cer I ower in rank t han t he t he search will be bad and are I iablet o be quashet This Vlew was also reit erat edby I earned SingleJudgeof t his Coun in St at e of Haryanav Ram Niwas 200411 Recent Crim inal Report s 693 wherein t he following observat ion was m adele 1 Cl 0 4 I C5 I Z I 08 QO Y3 Z Qm 5 Duringt he course of argum ent sI earned counsel for t he respondentrelies upon a j udgm ent rendered by t his Court in Ashok Kum ar v St at e of Haryana 1991111All I ndia Crim inal Law Report er 457 199121RCCrJ 140 1P8H1in which it has been observed t hat under t he HaryanaKerosene Dealers LicensingOrder 1976 CI ause 11 t he power t o search and ent er t he prem isesis only wit h t he ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh Assist ant Food and SuppI iesOm cer and t he I nspect orwho is below t he rank of Assist ant Food JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 36 1 0 CO C5 I Z t I 08 r Crim inal AppealNo 830SB of 1999 6 and SuppliesOfficer I S not com pet entt o ent er search and seize t he goods I n Ashok Kum ars case supral t he proceedingsagainstt he accused on t his short pointwere quasheclLearned counsel for t he respondentalso relies upon t he j udgm ent sof t his Court rendered in Arvind Kat och v St at e of Punj ab 200141RCR I Crim inall608 and Raj Narain alias Kuka v St at e of Punj ab 2003 RCR Crim inall88 in which on t he point of com pet enceof search being conduct ed by a part icular official was discussed and t he proceedings werequashed Anot her j udgm entrendered by I earned SingleJudge of t his m m o Z Court in Harpal Singhand Ot hers v St at e of Punj ab199131Recent Crim inal Report s 307 held t hat t he provisionsof Code of Crim inal Procedure are not applicablebecause t he Essent iaI Com m odit ies Act cont ain specialprovisionsI n Harpal Singhs case suprawit hout t aking int o considerat ion t he am endm ent int roduced in Haryana Kerosene Dealers LicensingFirst Am endm ent lOrder 1986 hereinaner referred t o as 1986 Orderl relyingupon1976 Order it was held t hat raid conduct ed by t he policeom cials below t he rank of Sub I nspect or would vit iat et he proceedings Adm it t edlyin t he presentcase Assist ant Food and SuppI ies Officer was not j oined Therefore t his Court ond no reason t o differ wit h t he consist ent view t aken by vanous Single Benches of t his Coun ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh Therefore t he presentappealis accept edThe convict ion and sent ence JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document Crim inal AppealNo30SB of 1999 7 awarded upon t he appellant sis set aside and t heyare acquit t edof t he 1l Judge charges February16 2010 DI CJ rV 37 m C 0 C I C5 I Z l I 08 m t m Z Qw ANI TA RANI 2015.01.15 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document