2013 (8) TMI 276 - HC - Indian Laws

Cognizable offence - Search and Seizure of essential commodity - Validity of Proceedings Jurisdiction to investigate - Whether after the amendment of the Essential Commodities Act, 1955, making offence cognizable though the Police had not been notified as an Inspector under the different Control Orders, had jurisdiction to make the search and seizure of the premises or the moving vehicles or carts carrying essential commodity in violation of the Act will make the search and seizure illegal in consequence - will lead the whole prosecution illegal or irregular and the prosecution would vitiate depending on prejudice caused to the accused concerned. Whether the seizure of loaded vehicle intercepted by Police at a deserted place in dark night, will make such search illegal, would vitiate the whole prosecution - Held that - In view of the provisions of Amending Act 36 of 1987 offence under the Act having been made cognizable police officers though not notified as Inspector under the different control orders issued under the Act have the jurisdiction to investigate the offence committed under the Act with respect to the essential commodity - Search and seizure being part of investigation police officers have also jurisdiction to conduct search, seizure of the premises, vehicle in which the essential commodity was stored or was being transported. Ram Chandra Pansari Vs. The State of Bihar 1988 (3) TMI 410 - PATNA HIGH COURT was distinguished as wrongly been rendered the benefit without noticed the amending Act 36 of 1987 - State of Punjab Vs. Wassan Singh & Ors. 1981 (1) TMI 249 - SUPREME COURT was held as per in curium and not a binding precedent Petitions were dismissed with direction to the trial court to proceed with the trial and conclude the same at the earliest matter remanded back - the prosecution launched against the petitioners shall proceed in accordance with law but it was observed that it shall be open for the petitioners to impress upon the trial court that they had suffered prejudice on account of search and seizure made by the police authorities/ team which was the basis of their prosecution - The trial court while disposing of the trial shall consider the aforesaid submission in accordance with law and record its finding with respect to the prejudice suffered by the petitioners on account of search and seizure which was the basis of their prosecution Decided against accused.

Summary

Issues Involved:

1. Jurisdiction of police to make search and seizure post-amendment of the Essential Commodities Act, 1955.
2. Legality of seizure by police at a deserted place during the night and its impact on the prosecution.

Detailed Analysis:

1. Jurisdiction of Police to Make Search and Seizure Post-Amendment of the Essential Commodities Act, 1955:

The core issue was whether police officers, not notified as Inspectors under various Control Orders, had jurisdiction to conduct searches and seizures after the Essential Commodities Act, 1955 was amended to make offenses under it cognizable. The petitions argued that such searches and seizures were illegal, thus invalidating the entire prosecution. The court examined the amendment by Act 36 of 1987, making offenses under the Act cognizable, and concluded that police officers have the jurisdiction to investigate offenses under the Act, including conducting searches and seizures, as part of their investigative powers under the Code of Criminal Procedure (Cr.P.C.).

The court referred to multiple precedents, including the Supreme Court's judgment in State of Maharashtra Vs. Natwarlal Damodardas Soni, which held that even if a search was illegal, it would not affect the validity of the seizure, further investigation, or the trial. The court also noted that the Division Bench judgment in Ram Chandra Pansari Vs. The State of Bihar did not consider the amendment or relevant Supreme Court judgments, making it per incuriam and not a binding precedent.

2. Legality of Seizure by Police at a Deserted Place During the Night and Its Impact on the Prosecution:

The second issue was whether the seizure of a loaded vehicle by the police at a deserted place during the night rendered the search illegal and vitiated the entire prosecution. The petitioners relied on the Ram Chandra Pansari judgment, which quashed prosecutions based on illegal searches and seizures. However, the court distinguished this case by referring to the Supreme Court's ruling in K.L. Subhayya Vs. State of Karnataka, where a conviction was set aside due to non-compliance with statutory provisions for search and seizure, but the prosecution itself was not quashed.

The court emphasized that any irregularity in search and seizure must be evaluated based on the prejudice caused to the accused, as established in State of Punjab Vs. Balbir Singh and Mohinder Kumar Vs. State, Panaji, Goa. The court held that the trial court must consider whether the accused suffered prejudice due to the search and seizure and evaluate the evidence accordingly. The court also noted that the prosecution under the Essential Commodities Act should proceed, and the trial court should assess any claims of prejudice during the trial.

Conclusion:

The court concluded that the police have jurisdiction to conduct searches and seizures under the Essential Commodities Act post-amendment, and any illegality in the search and seizure process must be assessed for prejudice during the trial. The petitions were dismissed, and the trial courts were directed to proceed with the trials, considering any claims of prejudice due to the searches and seizures.