Sri.Raju @ Huliraja S/O Honnurappa Vs the State of Karnataka

SRI BASAVARAJ PATIL S/O. SHEKARAGOUDA PATIL AGED ABOUT 42 YEARS PROPRIETOR OF SRI VIJAYA SHIVACHANDRA UDYOG NEW C.B.S. GUNJ GANGAVATHI - 583 227 KOPPAL DISTRICT.

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SRI GANESH S. K. S/O. S. V. KRISHNAMURTY AGED ABOUT 34 YEARS PROPRIETOR OF SRI KARIGIRI NARASIMHA TRADERS APMC YARD, TUMAKURU - 572 101 TUMAKURU DISTRICT.

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…PETITIONERS

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HC-KAR

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(BY SRI T. BASAVANA GOUDA, ADVOCATE, FOR SRI S. P. KULKARNI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED HADAGALI POLICE STATION HADAGALI, BELLARI DISTRICT NOW REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING DHARWAD - 560 001.

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SMT. BHARATI H. G. FOOD INSPECTOR HADAGALI TOWN - 583 219 BELLARI DISTRICT.

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…RESPONDENTS

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(BY SMT. KIRTILATA PATIL, H.C.G.P.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C., PRAYING TO CALL FOR THE RECORDS IN CRIME NO.67/2020 REGISTERED BY HADAGALI POLICE, COMING UNDER JURISDICTION OF CIVIL JUDGE AND J.M.F.C COURT, HADAGALI, BELLARI DIST. (ANNEXURE-B) AND QUASH THE COMPLAINT AND F.I.R. IN CRIME NO.67 OF 2020 DATED 28.06.2020 REGISTERED BY HADAGALI POLICE STATION, COMING UNDER JURISDICTION OF CIVIL JUDGE AND J.M.F.C COURT, HADAGALI, BELLARI DIST. FILED UNDER SECTIONS 3, 4, 12, 18 AND 19 OF THE KARNATAKA ESSENTIAL COMMODITIES (PDS) PUBLIC CONTROL ORDER, 2016, UNDER SECTIONS, 4, 8, AND 3(2)(i) OF THE KARNATAKA ESSENTIAL COMMODITIES (STORAGE ACCOUNT MAINTAINING VALUE NOTIFICATION) ORDER, 1981, UNDER SECTIONS 3, 6(A) AND 7 OF THE ESSENTIAL COMMODITIES ACT, 1955, AND UNDER SECTION 420 OF THE INDIAN PENAL CODE, 1860, AGAINST THE PETITIONERS HEREIN BEING TOTALLY ARBITRARY, ERRONEOUS WITHOUT JURISDICTION AND AMOUNTING TO ABUSE OF PROCESS OF COURT, IN THE INTEREST OF JUSTICE AND EQUITY (ANNEXURE-A AND B) AND ETC

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THIS CRIMINAL PETITION IS COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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The petitioners/accused Nos.1 to 4 have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 praying to quash the complaint and First Information Report in Crime No.67 of 2020 dated 28.06.2020 registered by Hadagali Police Station, for the offences punishable under Sections 3, 4, 12, 18 and 19 of the Karnataka Essential Commodities (PDS) Public Control Order, 2016, under Sections, 4, 8 and 3(2)(i) of the Karnataka Essential Commodities (Storage Account Maintaining Value Notification) Order, 1981, under Sections 3, 6(A) and 7 of the Essential Commodities Act, 1955, and under Section 420 of the Indian Penal Code, 1860, pending on the file of the learned Civil Judge and Judicial Magistrate First Class, Hadagali, Bellary District (now Vijayanagar District).

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HC-KAR

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The brief facts of the prosecution case are that, the de facto complainant received credible information on 28.06.2020 at about 3.00 p.m., about the petitioners illegally transporting 14,660 kgs. plastic bags of food grains containing rice item totally valued at Rs.4,19,569/belonging to the Government Public Distribution System (for short, 'PDS'). Hence, he conducted raid, seized the same and arrested the accused persons, and lodged complaint, which led to registration of First Information Report and investigation.

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Taking exception to the same, the petitioners have filed this petition.

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Heard Sri T. Basavana Gouda, learned counsel for the petitioners, and Smt. Kirtilata Patil, learned High Court Government Pleader for respondent Nos.1 and 2.

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Learned counsel for the petitioners has contended that conducting of search and seizure without registering First Information Report is impermissible in law. The rice

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HC-KAR

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seized from the lorry of petitioner No.1/accused No.1 is not meant for distribution under PDS and hence, conducting of investigation for the aforesaid offences is impermissible.

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Learned High Court Government Pleader for the respondents has contended that petitioner No.1/accused No.1 had stocked the rice meant for distribution under PDS and competent authority has conducted search and seizure and thereafter, lodged the First Information Report and the same is in conformity with the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016. She further submits that the veracity of allegation against the petitioners requires to be investigated and hence, at this stage, registration of First Information Report does not warrant interference.

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Perused the material available on record. The Food Inspector conducted raid on the petitioners and seized rice of 14,660 kgs. worth Rs.4,19,569/-. Under the Food Civil

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HC-KAR

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Supplies and Consumer Affairs, the Joint Director, Department of Food Civil Supplies, is authorised to conduct search and seizure of the food grains meant for distribution under PDS so as to secure the compliance of provisions contained in the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016.

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Rule 19 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, deals with powers of entry, search, seizure etc. The Authorised Officer under Rule 19, if he has reason to believe that there is any contravention of the provisions of this order or with a view to securing compliance with this order or to satisfying himself that there is or has been any contravention of the order or with a view to securing information which he has reason to believe would help in detection or prevention of contravention of provisions of this order or diversion of PDS commodities, may require the owner, or occupier any other person in-charge of any

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HC-KAR

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place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any authorisation issued there under has been, is being or is about to committed.

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Clause (2) of Rule 19 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, specifies that, the provisions of Section 100 of the Code of Criminal Procedure, 1973, relating to search and seizure shall so far may be apply to searches and seizures under this Clause.

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A conjoint reading of Section 10A of the Karnataka Essential Commodities Act, 1955, and Rule 19 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, indicate that, if the Authorised Officer has any reason that, there has been any contravention of the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, he can conduct search and seizure of the

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HC-KAR

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premises, in which, it is alleged that, the food grains meant for distribution under PDS is being stocked unauthorisedly.

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Though the offences are cognizable, Rule 19 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016, empowers the Authorised Officer to conduct search and seizure so as to satisfy himself that, there has been contravention of the order, and there is no requirement for the Authorised Officer to register First Information Report, and thereafter conduct search and seizure of the food grains meant for distribution under PDS. However, search and seizure of the premises is subject to compliance of Section 100 of the Code of Criminal Procedure, 1973.

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In the instant case, search and seizure of the food grains was conducted in lorry, bearing Registration No.KA-16/D-5483, owned by petitioner No.1/accused No.1. The Authorised Officer was required to obtain

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HC-KAR

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warrant from the learned Magistrate before conducting raid and seizure and in case of any exigency, record reasons for not obtaining the search warrant. Therefore, conducting of search and seizure of the food grains seized from the lorry of petitioner No.1/accused No.1 is in violation of Section 100 of the Code of Criminal Procedure, 1973.

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A Co-ordinate Bench of this Court in Writ Petition Nos.36438-36439 of 2014 and Writ Petition No.36542 of 2014 (GM-EC) disposed of on 03.12.2014, at paragraph No.14, has held as under:

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"14. In the instant case, petitioners are not authorized dealers. They are not shown to be engaged in purchase, storage or sale of food grains which were issued to the authorized dealer for distribution under the public distribution system. Therefore, essential ingredient explicitly stated under Clause 18 (a) i.e., the goods/commodities must have been issued to the authorized dealer under the public distribution system is missing. No finding is

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HC-KAR

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recorded by the 1st respondent in this regard. In fact, there is no material whatsoever to indicate this aspect. Therefore, as rightly contended by the learned counsel for the petitioners, unless there is material to show that the commodities were issued to an authorized dealer for distribution under the public distribution system or that a person other than the authorized dealer had sought to purchase or sell or store or offer for sale food grains meant for distribution under public distribution system through the price depots, prohibition contained under Clause 18 (a) of the Control Order would not be attracted. In the absence of such findings such action will not attract penal measure including seizure or forfeiture."

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In the present case, no material is produced to prove the fact that the rice, which was seized from the lorry of petitioner No.1/accused No.1, was meant for distribution under PDS. In the absence of the same, the Food Inspector has no power to conduct search and seizure as provided under Rule 19 of the Karnataka

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HC-KAR

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Essential Commodities (Public Distribution System) Control Order, 2016. Hence, continuation of investigation will be abuse of process of law as against the petitioners/accused Nos.1 to 4. Accordingly, I proceed to pass the following

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O R D E R

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i. Criminal Petition is allowed .

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ii. First Information Report in Crime No.67 of 2020 dated 28.06.2020 registered by Hadagali Police Station, for the offences punishable under Sections 3, 4, 12, 18 and 19 of the Karnataka Essential Commodities (PDS) Public Control Order, 2016, under Sections, 4, 8 and 3(2)(i) of the Karnataka Essential Commodities (Storage Account Maintaining Value Notification) Order, 1981, under Sections 3, 6(A) and 7 of the Essential Commodities Act, 1955, and under Section 420 of the Indian Penal Code, 1860, pending on the file of the learned Civil Judge and Judicial Magistrate First Class, Hadagali, Bellary

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