Mohd. Hasan Askari vs State of U.P. and Others

Barkat Ali Zaidi, J.—The Station Officer of Police Station Hasanpur, district J.P. Nagar, raided the Priyadarshini Petrol Filling Station of one of the accused Chatar Singh on 24.9.2001, where a tanker No. U.P. 21C 9889, sent by the oil firm Niyaz Aftab Traders, Bachhraon of the other accused Mohd. Hasan Askari, who is the sole Petitioner here, was present for supplying the oil, and the other accused Harvir and Akhilesh were engaged in process of supply of oil.

The suspicion was that both the dealers were selling adulterated kerosene oil as Diesel. The Station Officer collected the sample.

Thereafter a case was registered and in the result of investigation, the police filed a charge-sheet (Criminal Case No. 639/3 of 2002) under Sections 417, 420, 285 and 286, I.P.C. and Section 23 of the Petroleum Act, 1934 in the court of Chief Judicial Magistrate, J.P. Nagar against accused Harveer, Akhilesh and Chatar Singh and the present applicant.

That is how the applicant has come in Section 482, Cr. P.C. here, for termination of the aforenoted criminal proceedings against him.

I have heard Sri Rohit Agrawal, counsel for the applicants and Sri N. C. Tripathi, Additional Government Advocate for the State.

It may be mentioned before proceeding further, that after analysis of the sample, no adulteration was found in the kerosene oil by the Vidhi Vigyan Prayogshall, Agra, (copy of the report is Annexure-6), which takes the fizz out of the alleged offence.

In view of the Analyst''s report about the absence of any adulteration in the oil, the controversy which arises in the case is virtually redundant. However, since the arguments have been advanced on purely legal issue, this Court may consider the same.

The arguments on the side of the applicant is that orders and notifications of the Central Government made under the Petroleum Act, authorize only a police officer, not below the rank of Deputy Superintendent of Police, duly authorized by General or Special Order of the Central Government or State Government in this behalf to make a search under this ''Act''. While the search in this case was made by Sub-inspector of Police. The entire search, was therefore, illegal and invalid.

The counter arguments from the side of the State is that the offences under Sections 417, 420, 285 and 286, I.P.C. have also been committed, and, that is why, the search by the Sub-Inspector cannot be considered illegal.

The arguments from the side of the State, is, without any substance because principal offence, out of which these other offences arise, is Section 23 of the Petroleum Act, 1934 and the Petroleum Act being a special Act, shall predominate and supersede the general legislation. It cannot, therefore, be said that only because of including of certain sections of Indian Penal Code, Sub-Inspector, will be justified in conducting the search.

In view of the fact that the analyst''s report in the case, that, there was no adulteration, and that, in view of the circumstances that the search was illegal, it would seem unnecessary to ask the applicant to complete formality of presentation of an application for discharge before the trial Magistrate, and it seems, therefore, appropriate to do the same here, and, terminate the proceedings.

The result is that the petition succeeds and is allowed and, the proceedings in Crl. Case No. 639/9 of 2002, State v. Harveer Singh and others Crl. Case No. 639/9 of 2002, against the applicant and other co-accused shall stand terminated.

A copy of this order be sent by the Registry to the learned Chief Judicial Magistrate, through District Judge, J.P. Nagar for information and compliance.