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TMI Blog1988 (3) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Police, Khutauna, found the truck bearing registration No. BRX 8856 unloading certain drums of diesel and mobil oil in the premises of the Middle School. Out of the three persons, who were engaged in unloading the truck, two managed to escape but the third Jagti Thakur was arrested, who claimed part of the diesel as his own. First Information Report was subsequently ledged at Laukaha police station on the basis of which investigation started and the petitioner was arrested on 22-6-1985. After completion of investigation charge-sheet was submitted on 20-7-1985 and cognizance has taken 16-8-1986. The petitioner, along-with others, is now facing trial before the Special Judge (E. C. Act), Madhubani. 2. Mr. Bharukd appearing on behalf of the petitioner raised a very interesting question. He did not dispute that the offence alleged provides a maximum sentence of 7 years under Section 7 of the Act, but learned Counsel contended that under proviso to Clause (f) to Section 12-AA of the Act, it will be lawful for the Special Judge to pass a sentence of imprisonment for a term not exceeding 2 years. He, therefore, contended that the case becomes a summons-case and since the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been defined under Section 2 (w) of the Code of Criminal Procedure as meaning 'a case relating to an offence, and not being a warrant-case'. Section 2(x) of the Code of Criminal Procedure defines 'waarant case' as 'a case relating to an offence punishable with death, imprisonment for life or imprisonment for a terra exceeding two years'. Therefore, a case relating to an offence which is punishable for a term not exceeding two years is a summons-case. 4 I have mentioned above different provisions of the Code of Criminal' Procedure and the Essential Commodities Act which have been referred to by Mr. Bharuka and which will have to be considered by me in this judgment, 5. Mr. Bharuka urged that as a result of insertion of Section 12-AA of the Act the maximum period for which the accused can be punished is two years imprisonment notwithstanding the maximum sentence of seven years as provided under Section 7 of the Act. According to learned Counsel, therefore, the result was that provision of maximum sentence of 7 years as prescribed under Section 7 stood repealed. As a logical corollary to this argument, the argument of Mr. Bharuka is that the case relating to offences punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding 7 years imprisonment as prescribed under Section 7 of the Act. Does this mean that the offence is punishable with 2 years imprisonment ? According to Block's Law Dictionary 'punishable' means 'deserving of or capable or liable to punishment; capable of being punished by law or right'. That means the accused can be punished law (under Section 7 of the Act) to a term of imprisonment upto 7 years as this section prescribes a period of 7 years punishment. Therefore, the prescribed quantum of punishment is 7 years although by virtue of the proviso to Clause (f) to Section 12-AA of the Act a limit has been imposed on the Special Judge not to impose a sentence beyond 2 years. It is not possible for me to accept the contention of Mr. Bharuka that as a result of insertion of proviso to Clause (f) to Section 12-AA, Section 7 of the Act stood repealed. If the Legislature wanted to repeal Section 7 of the Act then it could very well have said so ; particularly when by Section 10 of the Act 18 of 1981 and other provisions like Section 12 of the Act were omitted. The maximum sentence of 7 years as provided under Section 7 of the Act and the proviso to Clause (f) to Section 12-AA imposing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, Bihar, Deputy State Transport Commissioner, Bihar, Special Officer Incharge Tyre Rationing, Transport Department, Bihar, Deputy Transport Commissioner of the Division, Assistant Transport Commissioner of the Division, District Transport Officer, District Magistrate, Sub-divisional Magistrate, Superintendent of Police, Deputy Superintendent of Police, other police officer not below the rank of Deputy Superintendent of Police or any other person authorised in this behalf by the State Government to, inter alia, search, seize and remove stocks of motor spirit or high speed diesel oil, etc. and to produce the same before a Magistrate. Learned Counsel says that search and seizure was made by the Assistant Sub-Inspector of Police. Khutauna, who was not authorised under Rule 12 of the Order aforesaid to make search and seizure and, as such, the case registered on the basis of this search and seizure was absolutely without jurisdiction. H will be better to quote the relevant provision of Rule 12 of the Order, which reads as under: Powers of entry, inspection, search, seizure, etc.-(1) The State Transport Commissioner, Bihar, Additional State Transport Commissioner, Bihar, Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the search and seizure of the liquor was in violation of Section 54 of the Mysore Excise Act. This section runs thus: Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer in charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the ground of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. It was admitted before the Supreme Court that the mandatory requirement of Section 54 was not complied with inasmuch as no ground on the basis of which there was a reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seizure, therefore, is the foundation of the present prosecution and this, in my opinion, cannot be treated as a mere irregularity and can also not be cured and rectified by directing fresh search and seizure. The case reported in (supra), does not help Mr. Jaiswal. 8. Mr. Jaiswal has also referred to the decision in the case of Radha Kishan v. State of Uttar Pradesh , and has urged that if the search was illegal, the accused person had a right to resist the same but the court may be inclined to examine the seizure carefully. But it is not only the search which is illegal, the seizure also has been made in violation of Rule 12 and as such, is illegal. The court, therefore, cannot act upon the illegal seizure. Besides this, as I have said earlier, the search and seizure in this case is the foundation of the case and since the two were in violation of Rule 12, the investigation on that basis cannot be said to be lawful. 9. Learned Counsel for the State has also referred to the decision in the case of Shiv Traders v. The State of Bihar 1980 B.B.C.J. 245, to show that if reasons for effecting the search is not recorded then the seizure cannot be said to be illegal That was a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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