Allowed

Sri Hajilal S/O Hajianwarsab Pailwan v. the State of Karnataka

Karnataka HC18 May 2023CRL.P/104175/2022

Case brief

AI extract

What is this about?

The petitioners challenged prosecution under the Essential Commodities Act for alleged illegal transport of rice. The court, relying on a prior judgment covering identical facts and principles regarding FIR registration and inconclusive expert opinions on PDS stock, quashed the proceedings against the petitioner.

What did the court decide?

The criminal petition is allowed and Crime No.101/2022 against the petitioner is quashed; pending applications are disposed of.

Sri Hajilal S/O Hajianwarsab Pailwan Vs the State of… — Quashing and FIR | Karnataka HC (2023)

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1 - CRL.P No. 104175 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 104175 OF 2022 (482-)

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BETWEEN:

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SRI HAJILAL S/O HAJIANWARSAB PAILWAN AGE. 56 YEARS, OCC. BUSINESS, R/O. BHARPETH GALLI, AMBEDKAR CIRCLE, TQ. JAMKHANDI, DIST. BAGALKOT.

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…PETITIONER

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(BY SRI. RAKESH S HATTIKATAGI, ADVOCATE)

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AND:

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K M SOMASHEKAR Digitally signed by K MSOMASHEKAR Location: high courtkarnataka Dharwad bench Date: 2023.05.19 12:03:38 +0530

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THE STATE OF KARNATAKA BY JAMAKHANDI TOWN POLICE STATION REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011.

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…RESPONDENT

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(BY SMT.GIRIJA S HIREMATH, HCGP FOR RESPONDENT/STATE)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO ALLOW THE PETITION AND QUASH THE FIR AND COMPLAINT AT ANNEXURE-A, AND ORDER SHEET AT ANNEXURE-B IN JAMAKHANDI TOWN P.C. CR. NO. 101/2022 DATED 03.11.2022 PENDING BEFORE PRL. CIVIL JUDGE AND JMFC JAMAKHANDI FOR THE ALLEGED OFFENCES PUNISHABLE U/S 3 AND 7(2) OF ESSENTIAL COMMODITIES ACT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in

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question the proceedings under Section 3 & 7(2) of the Essential Commodities Act, 1955. The proceedings are pending consideration in Crime No.101/2022.

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Learned counsel appearing for the petitioner

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would submit that all the issues in the present petition stand covered by the judgment rendered by this Court on 16^th February 2022 in Crl. P. No.101739/2021 and connected matters.

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Learned HCGP on verification of the said

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judgment and on instructions would submit that the issue indeed is covered by the judgment rendered by this Court. This Court in the aforesaid judgment held as follows:

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“For the sake of convenience, facts in brief in Criminal Petition No.101739 of 2021 are narrated. The petitioner in the said criminal petition is an independent trader dealing with stock and distribution of food grains and claims to be in possession of a license to carry out such trade. Claiming to be on credible information, the Police Sub-Inspector of Navanagar Police Station intercepted a Baloro vehicle on an alleged complaint

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that the vehicle was transporting rice bags and conducted a search on the vehicle. The complainant also accompanied the Police Sub-Inspector, who conducted search or raid on the permission allegedly granted by his superior Officer. The complainant and the Police staff - panchas go to the spot at about 5 p.m. and on seeing the Baloro vehicle, intercepted the same, conducted search and secured the information that the rice bags belonged to S.K. Traders and the same were being transported from the godown belonging to S.K. Traders to one Balaji Impex Traders. Sixty five bags each weighing 50 kgs. were seized along with the vehicle on the ground that they were transporting rice illegally, which was meant for public distribution under the Public Distribution System (‘PDS’ for short). Based on the said incident, a FIR came to be registered against the petitioner. The petitioner is arrayed as accused No.3. The allegations against the petitioner are for offences punishable under Sections 7 and 3 of the Essential Commodities Act, 1955 (‘the Act’ for short) read with Clauses 3(2) & (3) and 18 of the Karnataka Essential Commodities (Public Distribution System) Public Control Order 2016 (‘the Order’ for short). It is at that juncture, the petitioner has knocked the doors of this Court in this petition.

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4. In Criminal Petition No.101740 of 2021, the petitioner is also an independent trader dealing in stock and distribution of food grains. He claims to have all the necessary legal licences to do such business. Kittur Police claims to have had credible information that rice bags were being illegally transported in two lorries from Dharwad to Belgaum and they intercepted the lorries, conducted raid, seized the vehicles and rice bags. Thereafter, they registered the complaint and FIR.

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5. In Criminal Petition No.101741 of 2021, the petitioner also claims to be an independent trader in the business of stock and distribution of food grains and claims to have possessed the licence for the purpose. The respondents intercepted the vehicle in which the alleged rice meant for distribution to public under the PDS was being transported. About 685 bags weighing 49 Kgs. each were seized during the search or raid conducted and the crime was later registered in Crime No.41 of 2020.

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6. The facts in Criminal Petition Nos.101742, 101745, 101746 and 101747 of 2021 are all identical to the above cases as respective vehicles are intercepted, rice bags were seized and the crime is registered later. In all the cases, the offences alleged are the ones punishable under Sections 3 and 7 of the Act and Clauses 3(2) & (3) and 18 of the Order. In few cases, offence punishable under Section 420 of the IPC is also registered against the petitioners herein.

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7. The learned counsel Sri V.M. Sheelvant, appearing for the petitioners in all these cases would vehemently argue and contend that on a suspicion that the petitioners were carrying rice that was meant for the purpose of public distribution under the PDS, were illegally transporting and thereby, contravened the provisions of the Act and the Order and become liable for prosecution under Sections 3 and 7 of the Act. Without following due procedure, the offences could not have been, at the outset registered without a FIR being registered against the petitioners. The search and seizure conducted is on a cognizable offence and the complaint and FIR is later registered. He would submit that it is in blatant violation of the judgment of the Constitution Bench rendered in the case of LALITHA KUMARI v. STATE OF U.P . reported in (2014) 2 SCC 1 .

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8. On the other hand, the learned High Court Government Pleader would submit that on credible information accompanied by the Food Inspector in all these cases, search is conducted and rice bags were admittedly found which were allegedly being siphoned off to what belonged for public distribution. Therefore, it is a matter of trial for the petitioners in all these cases to come out clean by producing such evidence to demonstrate that they were validly carrying rice bags, which were not meant for public distribution. He would submit that it is a matter for trial for the petitioners to come out clean.

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9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

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10. The afore-narrated facts of interception and seizure of vehicles with goods are not in dispute. The offences alleged against the petitioners are the ones punishable under Sections 3 and 7 of the Act. Sections 3 and 7 of the Act read as follows:-

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“ 3. Powers to control production, supply, distribution, etc., of essential commodities. ―(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.

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(6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.”

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Section 7.Penalties. ―(1) If any person contravenes any order made under Section 3,―

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(a) he shall be punishable,―

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(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

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(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may

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extend to seven years and shall also be liable to fine:

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Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;

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(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

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(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the court so orders, be forfeited to the Government.

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(2) If any person to whom a direction is given under clause (b) of sub-section(4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

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Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.

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(2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:

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Provided that the court may, for any adequate and special reasons to be

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mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.

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(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under subclause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months or six months, as the case may be.

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(3) Where a person having been convicted of an offence under sub-section (1) is again convicted convicted of an offence under that subsection for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the Order.”

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The notification issued by the State Government viz., the Order is germane to be noticed as offences are alleged under the Order as well. Clause 2(c) defines who is an ‘Authorised Dealer’; Clause 6(1)(c) deals with an “Authorised Agency”; Clause 18 deals with prohibition of unauthorized sale of food grains and essential commodities issued through Public Distribution System and they read as under:

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“2. Definition . – In this order, unless the context otherwise requires:

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… … … (c) ‘Authorised Dealer’ means a person, a firm, a Corporation, an association of persons or a Co-operative Society or any other institutions authorized as an agent by the Government or by an authorized authorized by the Government in that behalf to be a wholesale dealer engaged in the purchase of essential commodities and sale of

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these essential commodities to the fair price depots for distribution to ration card holders or to be a Fair Price Depot.

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6. Order of priority for Grant of authorization: (1) subject to the provisions of Clause 5, the authorized authority shall follow the following order of priority for granting authorization.

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… … … (c) “Authorized Agency” in respect of Authorized Agency for Transportation of PDS commodities,-

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The priority shall be as follows:-

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(i) The State Government owned Corporation/Undertakings or Companies;

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(ii) Registered Private transporters.

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18 . Prohibition of unauthorized sale of food grains and essential commodities issued through Public Distribution System:

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(1) No person other than the authorized dealer shall purchase or sell or store or offer for sale of food grains in any quantity of any food gains or essential commodities issued to the authorized dealer for distribution under public distribution system.

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(2) No authorized dealer shall sell or offer for sale of food grains and other essential commodities at a price exceeding the price fixed by the Government.

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(3) No authorized whole dealer shall distribute food grains or other essential commodities issued under public distributi8on system to any person other than fair price depots and no fair price depot shall sell any essential commodity issued under public distribution system to any person other than a ration card holder attached to the fair price depot.”

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It is the aforesaid provisions under the Order that are germane and considered in this order. An authorized dealer can be of an authorized Firm, a Corporation, an Association of Persons or even a Co-operative Society. Clause 18 mandates that no person other than the authorized dealer shall purchase or sell or store any of the food grains in any quantity of any food gains or essential commodities. The allegation now made is that, the petitioners are admittedly not authorized dealers or authorized agents and were carrying rice bags and therefore, suspicion arose that they were carrying rice meant for distribution to the public under the PDS.

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11. Section 3 of the Act which entails prosecution if the offence is proved and conviction is under Section 7 of the Act. The notification though is placed before this Court what requires determination is, whether the petitioners were carrying food grains meant for distribution under PDS. In all these petitions several bags of rice that were being transported were seized for violations of the Act and violations under the Act are cognizable. Therefore, without registration of the crime, the Police could not have conducted a search.

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12. The Apex Court in the case of LALITHA KUMARI (supra), has held as follows:

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“Conclusion/Directions

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120. In view of the aforesaid discussion, we hold:

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120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

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120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry

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ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

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120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

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120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

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(a) Matrimonial disputes/family disputes

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(b) Commercial offences

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(c) Medical negligence cases

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(d) Corruption cases

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(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The

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fact of such delay and the causes of it must be reflected in the General Diary entry.

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120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

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In the light of the law laid down in the aforeextracted judgment, the action of the respondents is rendered unsustainable.

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13. The petitioners have produced invoices before this Court to demonstrate that they had purchased rice from the APMC yard as they were trading in rice also and the seized rice did not meant for distribution under the PDS. For incurring of offence under the Act or the Order, what is necessary to be noticed is determination whether transported rice belonged to the petitioners or the respondent/State.

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14. The claim of the petitioners is that, the rice belonged to them and in proof thereof, they have appended invoices of such purchase from the APMC yard to these petitions. It is not in dispute that these petitioners are independent traders in rice. They are stockiests and distributors. Therefore, the respondent/State to initiate proceedings against the petitioners, at the outset, there should have been a complaint or registration of offence and thereafter, a search could have been conducted upon the vehicles of the petitioners by interception. No doubt, rice was found in all the vehicles that were intercepted and in some vehicles in huge quantities. It is nobody’s case that on looking at the rice, it was meant for distribution under the PDS. Therefore, the rice that was seized was sent for an expert opinion and the expert has given his opinion in all these cases; one of such opinion given on 04-09-2021, is extracted hereunder for the purpose of quick reference:

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“«µÀAiÀÄ: J.¦.JA.¹. £ÀªÀ£ÀUÀgÀ, ¥ÉÆÃ°¸ïoÁuÉAiÀÄ C¥ÀgÁzsÀ ¸ÀASÉå 05/2021 gÀ°è ªÀ±À¥Àr¹PÉÆAqÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ ºËzÀÉÆÃ C®èªÉÇÃ J£ÀÄßªÀ PÀÄjvÀÄ.

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G¯ÉèÃR: 1) ¥ÉÆÃ°¸ï ¸À¨ïE£ïì¥ÉPÀÖgï (PÁ¸ÀÄ) J.¦.JA.¹. £ÀªÀ£ÀUÀgÀ ¥ÉÆÃ°¸ïoÁuÉ, ºÀÄ§â½î EªÀgÀ ¥ÀvÀæ PÀæªÀiÁAPÀ: / 2021, ¢£ÁAPÀ:-27/08/2021.

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DºÁgÀ ¤jÃPÀëPÀgÀÄ, ªÀ®AiÀÄ ¸ÀASÉå 1 & 3 EªÀgÀ ªÀgÀ¢ ¢£ÁAPÀ: - 04/09/2021.

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¥Àæ¸ÀÄÛvÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ UÀÄ£Áß £ÀA.05/2021 gÀ°è DºÁgÀ ¤jÃPÀëPÀgÀÄ ¢£ÁAPÀ :-14/01/2021 gÀAzÀÄ ¨ÉÆÃ¯ÉÆgÉÆ ªÁºÀ£À ¸ÀASÉå PÉ.J.25 ¹3889 £ÉÃzÀÝgÀ°è zsÁgÀªÁqÀ¢AzÀ ºÀÄ§â½î C£À¢üPÀÈvÀªÁV CQÌAiÀÄ£ÀÄß ¸ÁUÁl ªÀiÁrPÉÆAqÀÄ §gÀÄwÛzÁÝUÀ zÁ½ ªÀiÁrzÀ PÁ®PÉÌ ¸ÀzÀj ªÁºÀ£À ªÀÄvÀÄÛ CzÀgÀ°èAzÀ CQÌAiÀÄ£ÀÄß d¥ÀÛ ªÀiÁrPÉÆAqÀÄ ¥ÀæPÀgÀt zÁR°¹zÀÄÝ EgÀÄvÀÛzÉ. ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è ªÀ±À¥Àr¹PÉÆAqÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ ºÉÆ®ÄªÀ ªÀiÁzÀjAiÀÄ°èzÀÄÝ, DzÀÝjAzÀ ¸ÀzÀj CQÌ ¥ÀrvÀgÀ CQÌ ºËzÉÆÃ? C®èªÉÇÃ C£ÀÄßªÀ §UÉÎ ¸ÀàµÀÖ C©ü¥ÁæAiÀÄ ªÀgÀ¢ ¤ÃqÀ®Ä G¯ÉèÃR (1) gÀ°è PÉÆÃjgÀÄwÛÃj. CzÀgÀAvÉ G¯ÉèÃR (2) gÀ°è DºÁgÀ ¤jÃPÀëPÀgÀÄ C©ü¥ÁæAiÀÄ ¸À°è¹gÀÄvÁÛgÉ.

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DºÁgÀ ¤jÃPÀëPÀgÀ C©ü¥ÁæAiÀÄzÀAvÉ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è ªÀ±À¥Àr¹PÉÆAqÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ ºËzÀÄ, ¸ÀzÀj CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌAiÀÄ jÃvÁå EgÀÄvÀÛzÉ JA§ C©ü¥ÁæAiÀÄªÀ£ÀÄß vÀªÀÄUÉ ¸À°è¹zÉ.

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®UÀvÀÄÛ:- G¯ÉèÃR (2) gÀ ¥ÀvÀæzÀ £ÀPÀ®Ä

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vÀªÀÄä «±Áé¹

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¸À»/-

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¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÀÄ DºÁgÀ £ÁUÀjPÀ ¸ÀgÀ§gÁdÄ ªÀÄvÀÄÛ UÁæºÀPÀgÀ ªÀåªÀºÁgÀUÀ¼À E¯ÁSÉ ºÀÄ§â½î”.

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(Emphasis added)

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The opinion of the expert to whom the respondent had referred the rice is itself inconclusive as it shows that the rice looks/resembles/appears to be rice meant for distribution under the PDS. On such inconclusive report, the petitioners are sought to be prosecuted. There cannot be any better example of

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misuse of power by the respondents in the cases at hand. Allegedly, on a complaint registered by a Food Inspector, who claims to have received credible information that rice was being transported and the police intercepted the vehicles. Rice was being transported is no doubt true but to determine that it is the rice meant under PDS, the procedure that was to be followed was to refer to the expert. The expert himself is in doubt whether it was PDS rice or otherwise. Any further proceedings to be continued against the petitioners would without doubt be an abuse of the process of law and putting a premium on the illegal acts of the Officials of the respondent/State. To bring in the offences under the provisions of Sections 3 and 7 of the Act, a notification is to be published by the State Government. Such a notification is issued in the form of Order and Clauses in the Order make offences punishable only on such determination that is to be made prior to registration of such offences. The determination made in the opinion of the expert is itself inconclusive and on such inconclusiveness, trial against the petitioners, if permitted would result in miscarriage of justice and become an abuse of the process of law.

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15. The inspection of vehicles, seizure, drawing of a mahazaar and later on registering FIRs’ against the petitioners have all been done in such a casual manner and the officials of the respondents/State have set the criminal law in motion as a matter of course. A serious matter like registration of FIR and setting the criminal law in motion in all these cases smacks of haphazardness. On a vague allegation, interception happens without even enquiring as to from which PDS godown the rice was lifted and transported elsewhere. There is no evidence that is produced or collected in the proceedings that the petitioners have lifted the rice bags from a PDS distributor or an authorized dealer and then transported the same for their benefit. It is only when such determination is made, the provisions of the Act would become applicable.”

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4. The issues raised in the present case is akin to

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what is considered by this Court, in the aforesaid

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judgment, as the impugned action of the respondents are all identical to what was the action of the respondents/State in the aforesaid cases. This is not in dispute, as it is not disputed by the learned HCGP. Therefore, the present lis stands covered by the judgment rendered by this Court on all its fours and in the light of it

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being covered, the following:

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O R D E R

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