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TMI Blog2013 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigate 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 recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 passed by Sub-Divisional Judicial Magistrate, Saharsa in Special Case No. 07/2010 arising out of Bihra P.S. Case No. 103/10 whereunder learned Magistrate has taken cognizance of the offence under Section 7 of the Act. In Cr. Misc. No. 35709 of 2011 petitioner has prayed for quashing of the order dated 23.06.2011 passed by Additional Chief Judicial Magistrate, Hilsa in Hilsa P.S. Case No. 367/10 whereunder learned Magistrate has taken cognizance for the offence under Section 7 of the Act. 3. Perusal of the aforesaid four petitions would indicate that quashing of the order taking cognizance, refusing to discharge has been prayed for by the petitioners on the sole ground that the officer who searched, seized the essential commodity, on the basis of which case under Section 7 of the Act and other allied Sections of the Indian Penal Code was registered, had no authority/jurisdiction to search the vehicle/premises from where the commodity (fertilizer) in Kundwa Chainpur P.S. Case No. 22/09, Danapur P.S. Case No. 284/87, Hilsa P.S. Case No. 367/10) kerosene oil in Bihra P.S. Case No. 103/10) has been seized, the entire proceeding based on such illegal search and seizure is fit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court observed that police had power under the Code of Criminal Procedure to search and seize the goods if police has reason to believe that a cognizable offence has been committed with respect to the goods. Assuming that the search and seizure was illegal then also it will not affect either the validity of the seizure and further investigation by the authorities or the validity of trial which followed on the basis of illegal search and seizure. In the reference order it has further been observed that the Act has been amended by Act 36 of 1987 and the offence under the Act has been made cognizable. It is also observed that once the offence under the Act has become cognizable police officer has necessary jurisdiction to make search and seizure as per provisions of the Code of Criminal Procedure. According to reference order the Division Bench in the case of Ram Chandra Pansari had neither the occasion to consider the judgment of the Supreme Court in the case of State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) nor the Amendment made in the Act by Act 36 of 1987 whereunder the offence committed under the Act has become cognizable. In the aforesaid background, learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court in the case of Ram Chandra Pansari (supra). 7. Counsel for the petitioners in Cr. Misc. No.10287 of 2011 accused in Bihra P.S. Case No. 103/10 for the offence under Section 7 of the Act adopted the same submission placing reliance on the judgment of the Division Bench in the case of Ram Chandra Pansari (supra), as according to him Assistant Sub- Inspector, Bihra P.S., who seized the kerosene oil had no authority to effect the seizure from possession of the petitioner and the seizure being without jurisdiction, the prosecution based on such seizure is fit to be quashed. 8. In support of the submission raised in paragraphs 6, 7 above, counsel for the petitioners also referred to sub-section (2)(j) of Section 3 of the Act, which empower the Central Government to issue order regulating trade in essential commodity for securing its equitable distribution and availability at fair price. The order made under Section 3 of the Act may also provide for any incidental, supplementary matters including in particular, the entry, search or examination of premises, vehicle etc. in which essential commodity is kept and the seizure by a person authorised to make such entry, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which are merely preparatory to the commission of a crime and those which are sufficiently proximate to it which amount to an attempt to commit. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a hey-stack at the time of purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. The test to determine whether the act of the appellants constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to export paddy and they may have changed their mind at any place between Samolkha Barrier and Delhi- Punjab border and not have proceeded further in their journey. Supreme Court having observed as above set aside the conviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, does not indicate that on the ground of illegal search and seizure, the prosecution itself is required to be quashed. 10. Learned counsel for the petitioners next referred to the judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh, (1994) 3 Supreme Court Cases 299 in which Supreme Court considered with approval its earlier judgment in the case of K.L. Subhayya (supra) and submitted that the judgment of Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) having been followed by larger three Judge Bench of the Supreme Court in the case of Mohinder Kumar Vs. State, Panaji, Goa, (1998) 8 Supreme Court Cases 655, this Court while considering these petitions should consider the judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra). In view of the submissions noted above, judgment of the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra) is required to be examined in detail. It appears respondent Balbir Singh and others were acquitted of the offence under the N.D.P.S. Act on the ground that arrest, search of person, place without confirming to the provisions of the N.D.P.S. Act is illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.D.P.S. Act to all warrants, searches, seizures or arrest made under the Act. Police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of Cr.P.C. comes across a person being in possession of the narcotic drugs and psychotropic substance then two aspects will arise, if he happens to be one of those empowered officers under the N.D.P.S. Act then also he must follow the provisions of N.D.P.S. Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the N.D.P.S. Act. In paragraph 6 of the judgment Supreme Court considered whether failure to comply with the provisions of Cr.P.C. in respect of search, seizure would vitiate the trial and observed that violation of provisions, particularly Sections 100, 102, 103 or 165 Cr.P.C. strictly per se does not vitiate the prosecution case. If there is such violation what the courts have to see is whether any prejudice is caused to the accused. While appreciating the evidence and other relevant factors the courts should bear in mind that there was such violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the statutory provisions have not been complied with, it may however affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explained such circumstances which made it impossible to comply with these provisions. In State of Maharashtra Vs. Natwarlal Damodardas Soni (supra) referred to in the reference order Supreme Court after referring to the above mentioned decisions observed as under "taking the first contention first it may be observed that the police had powers under the Code of Criminal Procedure to search and seize the gold if they had reason to believe that a cognizable offence 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 further investigation by the customs authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs". It is, therefore, evident that non-compliance of the provisions of Sections 100, 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on the judgment of this Court in the case of M/s. Hanutram Jawahirlal and anr. Vs. The State of Bihar, 1989 PLJR 234 and submitted that offence under Section 414 I.P.C. alleged against the petitioner Jagdish Sah of Cr. Misc. No. 12313 of 2011 is required to be quashed as there is no material on record to suggest that the fertilizer in question was a stolen property. It is submitted that in the case of M/s. Hanutram Jawahirlal (supra) learned Single Judge having noticed the material on record i.e. silver transport voucher issued by the Custom Officer under the Custom (Amendment) Ordinance and Rules framed thereunder drew an inference that the offence under Section 414 I.P.C. is not made out as no case under Section 379 for theft of the seized article has anywhere been registered though the matter has remained under investigation for about 10 months and on the basis of the said inference concluded in paragraph 19 of the judgment that the First Information Report do not disclose any offence at all and quashed the further investigation observing that continuation of any further investigation in the matter is nothing but an abuse of the process of the court. 13. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was quashed on the ground of illegal search and seizure. He also submitted that having considered the evidence led during trial indicating prejudice caused to the accused, his conviction was set aside but in none of those cases prosecution was quashed on the ground of illegal search and seizure. 15. With reference to the Division Bench judgment of this Court in the case of Ram Chandra Pansari (supra) learned counsel for the State submitted that in the said case prosecution of Ram Chandra Pansari was quashed on the ground of illegal search and seizure placing reliance on the judgment of the Supreme Court in the case of K.L. Subhayya (supra). In the case of K.L. Subhayya (supra) the Inspector who searched the car of the appellant did not record the ground on the basis of which he had reasonable belief that an offence under the Mysore Excise Act was being committed before proceeding to search the car which Subhayya was driving and thus provisions of Section 54 was not complied with by the officer who made the search and seizure. Supreme Court in the aforesaid background concluded that the entire search was without jurisdiction and as a logical corollary vitiated the conviction. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court did not notice the judgment of the Supreme Court in the case of State of Maharashtra Vs. Natwarlal Damodardas Soni (supra). Natwarlal Damodardas Soni was convicted for the offence under sub-section (1) of Section 135 of the Customs Act for possessing smuggled gold. His conviction was set aside by the High Court on the ground that respondent possessed smuggled gold which was illegally seized by the police authorities of the Anti Corruption Bureau. As before the trial court learned counsel appearing for the respondent also contended before the Supreme Court that the search and seizure of gold from the house of respondent by the police authorities was illegal on the ground that information on the basis of which the police authorities of Anti Corruption Bureau conducted the search was not produced which vitiated the trial that followed. In the alternative, counsel submitted that Section 123 of the Customs Act which places the burden on the accused person to show that the seized goods are not smuggled gold was not applicable in the present case because the seizure of the gold was not made by the customs authorities under the Customs Act but by the police authorities of Anti Corrup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge them of the offence under Section 7 of the Act on the ground that launching of the prosecution against the petitioners was preceded by illegal search, seizure. In support of such contention heavy reliance has been placed by the counsel for the petitioners on the Division Bench judgment of this Court in the case of Ram Chandra Pansari (supra), perusal whereof indicates that Division Bench in the case of Ram Chandra Pansari has placed heavy reliance on the judgment of the Supreme Court in the case of K.L. Subhayya (supra) and held that in case of illegal search and seizure prosecution under Section 7 of the Act is fit to be quashed. While quashing the prosecution of Ram Chandra Pansari Division Bench of this Court did not notice the Amendment made in the Act by Act 36 of 1987 making the offence under the Act cognizable. The Division Bench also could not notice sub-section (2) of Section 4 of the Cr.P.C. which empowered the police to investigate, enquire into, try or otherwise deal with cognizable offence committed under any law including the Act with reference to the provisions contained in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr.P.C. The Division Bench in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) is per in curium and not a binding precedent. 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 is stored or is being transported. 19. The submission of the learned counsel for the petitioners that for illegal movement of fertilizer from Bihar to Nepal prosecution under the Customs Act, 1962 ought to have been lodged, is also misconceived as the provisions of the Customs Act, 1962 and the liability to pay duty under the Customs Act would arise only when the goods are sent from a place outside India to a place in India. 20. In view of the findings above, the prosecution launched against the petitioners shall proceed in accordance with law but it is observed that it shall be open for the petitioners to impress upon the trial court that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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