Be that as it may, crucial question is as to whether the seizure and search conducted by the PSI Gorhe is illegal as contended by the learned Advocate for the applicant. Section 10AA of the Essential Commodities Act, deals with power to arrest and provides that notwithstanding anything contained in the code of criminal procedure, 1973, no officer below the rank of an officer incharge of a police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of committing an offence punishable under this Act. It is pertinent to note that Section 10AA starts with non obstante clause. Under Section 41 of the Criminal Procedure Code any police officer may without an order from the Magistrate and without warrant arrest any person if one of the clauses thereunder are attracted which includes Clause (a), which provides who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; The offences in question are cognizable offences but, for Section 10AA of the Essential Commodities Act, any police officer could have arrested a person contravening the provisions of the Essential Commodities Act or the orders passed thereunder. Sub-section (2) of Section 41 of the Criminal Procedure Code provides that any police officer incharge of the police station may in the like manner arrest or cause to be arrested any person belonging to one or more of the categories of the persons specified in Section 109 or Section 110. However, Section 10A empowers an officer of the rank of the officer in charge of the police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of doing any offence punishable under the Essential Commodities Act. Therefore, power under Essential Commodities Act, can be exercised only by the officer of the rank of incharge of the police station or any officer in this behalf in writing.
Bombay High Court
Laxmikant Shankarlal Sarda vs State Of Maharashtra And Anr. on 30 August, 2001
Equivalent citations: 2002 CriLJ 1040, 2002 (2) MhLj 471
R.K. Batta, J.
