SI cannot book case under Motor Spirits Order, says Karnataka HC

A sub-inspector of police, after receiving the information about the alleged illegal transportation of diesel, had raided a bunk and seized a lorry.

The High Court of Karnataka has quashed an FIR filed against the owner of a petrol bunk who was booked under the Motor Spirit and High-Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, as the designated authority for search and seizure under it can be done only by an officer not below the rank of Deputy Superintendent of Police.

In this case, a sub-inspector had conducted the search and seizure.

"The lorry belonging to the petitioner is not in dispute. It did carry diesel in its tanker and is also not in dispute. Who conducts the search and seized the vehicle is what is required to be noticed," the High Court said in its judgement on the petition filed by Sadiq Pasha, a resident of Kolar, who holds a licence for the transportation of diesel, and appointed person to run the petrol bunk SWS & Sons Petrol Bunk.

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A case was registered against him under Section 285 of the IPC, Section 7 of the Essential Commodities Act and Clause 3 of the Motor Spirit Order.

A sub-inspector of police, after receiving the information about the alleged illegal transportation of diesel, raided the bunk and seized the lorry.

The case was pending before the Additional Civil Judge (Junior Division) and JMFC Mulbagal, Kolar and the petrol bunk owner had challenged it in the High Court.

The High Court in its judgement said that "The search is conducted by the Police Sub Inspector of the State Government and made over to the Station House Officer of Mulbagal Police Station, who is also in the rank of Sub-Inspector of Police; search and seizure could not have been conducted by the Police Sub-Inspector that too, without any authorisation by the Central Government or the State Government as Clause 7 of the Motor Spirit Order clearly mandates the Officers who should search and seize or any officer who is authorised in that behalf or a Sales Officer of an Oil Company."

"It is not in dispute that what was transported was diesel and what is alleged is malpractice, both of which would come within the purview of the Motor Spirit Order. Therefore, the first rung of the illegality of search and seizure which renders registration of crime itself is unsustainable," it said.

The Court also noted that the other offence charged regarding the maximum limit of diesel to be transported was also not applicable.

"It is an admitted fact that no notification is issued by the State Government depicting maximum quantity of diesel, inter alia that can be carried or it is brought within the purview of any notification issued by the State Government. In the absence of any notification, proceedings or offences punishable under Section 7 of the Act cannot be laid," it said.

The Court said that the offence under Section 285 of the IPC (rash or negligent act endangering human life) was also not applicable in the case.

"The petitioner is not alleged to have done any such act or the driver of the lorry of the petitioner. The allegation is that diesel was being transported in the diesel tanker for sale without an invoice. This can hardly become an ingredient of the offence punishable under Section 285 of the IPC," the Court said.

Quashing the case against Pasha, who is the accused number three in the case, the Court said, "Therefore, this becomes a fit case for exercise of jurisdiction of this Court under Section 482 of the Cr.P.C. to obliterate the crime at the stage of FIR itself. If further investigation is permitted to continue, it would become an abuse of the process of law and result in a miscarriage of justice."