Dasthagir Sharif Aliyas Althaf Dastagir Sharif @ Althaf Vs the State of Karnataka

THIS CRL.P IS FILED UNDER SECTION 482 OF CR.PC PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1051/2023 ON THE FILE OF THE PRL.CIVIL JUDGE AND CJM SHIVAMOGGA UNDER SECTION 18 OF PDS CONTROLLING UNDER 1992 AND OFFENCE PUNISHABLE UNDER SECTIONS 3, 7 OF ESSENTIAL COMMODITIES ACT OF RESPONDENT / KOTE POLICE SHIVAMOGGA.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioners are before this Court, seeking for the

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following prayer:

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"WHEREFORE, it is prayed to this Hon'ble Court be pleased to call for the records and quash the entire proceedings in CC No.1051/2023 on the file of Prl. Civil Judge and CJM, Shivamogga under Section 18 of PDS Controlling Order 1992 and offence punishable under Sections 3 and 7 of Essential Commodities Act, of respondent/Kote Police, Shivamogga, in the interest of justice and equity."

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Heard Sri A Hanumanthappa, learned counsel

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appearing for the petitioners and Sri B N Jagadeesha, Additional SPP appearing for respondent No.1.

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HC-KAR

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Learned counsel appearing for the petitioners would

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submit that the issue in lis stands covered by the judgment rendered by the Co-ordinate Bench in the case of RIYAZ

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AHMED AND OTHERS Vs. THE STATE OF KARNATAKA AND

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ANOTHER¹ . The Co-ordinate Bench has held as follows:

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"1. xxx

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Apart from the other contentions which have been addressed in Crl.P.No.9689/2016, an additional condition has been urged by Sri S.P.Kulakarni, learned Senior Counsel appearing for the petitioners that the complaint has been filed by the Police Officer, and investigation has been conducted by the Police Officer and a charge sheet has been filed by the Police Officer, which is in violation of Regulation-19 of the Karnataka Essential Commodities Public Distribution System (Control) Order 2016 (hereinafter referred to as the 'PDS Order' for short).

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He submits that it is only the persons named in Regulation 19 of the PDS Order, who can file the complaint, investigate and file a charge sheet in respect of offences under the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act' for short) relatable to the PDS Order. It is on this ground, he submits that the proceedings have to be quashed since the complaint has been filed by the Police Constable.

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Regulation 19 of the Karnataka Essential Commodities Public Distribution System (Control) Order 2016 is extracted hereunder for easy reference:

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1 Crl.P.No.7648/2019 DD 26.09.2022

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HC-KAR

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"19. Powers of Entry, Search, Seizure, etc. : (1) The Commissioner of Food Civil Supplies and Consumer Affairs Department, the Additional Director, the Joint Directors of Food Civil Supplies and Consumer Affairs Department or the Tahsildar of a taluk, the Authorized Authority or any other officer of the Department of Food Civil Supplies and Consumer Affairs not below the rand of a Food Inspector within their Jurisdiction may with such assistance, if any, as he thinks fit and if he has reason to believe that there is or has been 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:

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(a) require the owner, occupier or any other person in charge of any 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 authorization issued there under has been, is being or is about to be committed 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, to produce any books, accounts or other documents showing transactions relating to such contraventions :

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(b) enter, inspect or break open and search any place or 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 authorization issued there under has been, is being or is about to be committed 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 ;

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HC-KAR

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(c) take or cause to be taken extracts from or copies of any documents showing transactions relating to such contraventions 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 which are produced before him ;

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(d) search, seize and remove books, accounts and other documents and stocks of essential commodity and the animals vehicles, vessels or other conveyance used in carrying the said essential commodities in contravention of the provisions of this order, or of the conditions of the authorization issued there under 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, and thereafter take or authorize the taking of all measures necessary for securing the production of stocks, of essential commodity and the animals, vehicles, vessels or other conveyance so seized, in a Court for their safe custody pending such production.

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(2) The provisions of section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall so far may be, apply to searches and seizures under this clause."

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A perusal of the regulation indicates that insofar as the powers of entry, search and seizure is concerned, the Commissioner of Food Civil Supplies and Consumer Affairs Department, the Additional Director, the Joint Director of Food Civil Supplies and Consumer Affairs Department, The Tahsildar of Taluk, the Authorized Authority or any other Authority of Food Civil Supplies and Consumer Affairs not below the rank of a Food Inspector within the jurisdiction may with such assistance, if any, having reason to believe that there is or has been any contravention of provisions of the Regulation or Act require the owner, occupier or any other person in charge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of

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HC-KAR

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the order or condition of any authorization issued are violated or offence committed or there is a contravention of the provisions of the order or diversion of PDS commodities issued direction to produce any books, accounts or other documents have power enter into, inspect, break open and search of any premises, take or cost to be taken extracts from the copies of any documents, search, seize and remove books, accounts etc., and the provisions of Section 100 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C. for short) would apply thereto.

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A perusal of said Regulation 19 of the PDS Order only provides for the entry, search and seizure of any premises or vehicle in terms of Section 100 of the Cr.P.C. The said Regulation 19 does not in any manner prohibit a constable or a police officer from lodging any complaint and/or investigating the same. Of course, any member of the police force would not be authorized to enter, search and seize from any premises for any items said to be secreted in contravention of the regulation. For that purpose, it would be required that the officers named in Sub-Regulation 1 of Regulation 19 of the PDS Order to perform the necessary duties.

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In the present case the police constable registered a FIR for the offence under Section 279 of the IPC for the reason that there was an accident caused due to the rash and negligent driving of the driver of the vehicle. It is only after the Tahsildar, who visited the spot, on verification of the rice found in the vehicle, being of the opinion that the said rice belongs to the Public Distribution System that the provisions of Sections 3 and 7 of the Act were invoked. The search of the rice and seizure of the rice were made by the Tahsildar, who is authorized under sub-Regulation 1 of Regulation 19 of the PDS Order. The search, seizure and sampling were not made by the police constable. After the seizure and sampling, the Food Inspector has given a report as regards the rice belonging to the Public Distribution System infurtherance of which a charge sheet has been laid. Thus, I am of the considered opinion that

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HC-KAR

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there is no violation of regulation 19 of the PDS Order.

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The decisions relied upon by Sri S.P.Kulakarni, learned Senior Counsel appearing for the petitioners in Crl.P.No.9757/2016 dated 18.04.2017 was a situation where a stranger had lodged a complaint. The stranger being a President of one Rakshana Vedike and as such, this Court came to the conclusion that the proceedings have been initiated by a rank stranger who was not authorized and proceedings not being maintainable, quashed the proceedings.

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In the present case, the complaint has been lodged by the police constable who is authorized to do so. Report has been secured from the Food Inspector, who is authorized under SubRegulation 1 of Regulation 19 of the PDS Order. Hence, I do not find any violation in the present case of Regulation 19 as contended by Sri S.P.Kulakarni, learned Senior Counsel for the petitioners. Hence, the said contention would not hold in this Court any longer.

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Charge sheet having been laid without the FSL report having been received, I am of the considered opinion that no such charge sheet could have been laid without verifying the source of the rice and determining whether the rice was belonging to the PDS or not, there being no basis for a charge sheet except the suspicion on the part of the respondent at the time of the filing of the complaint. I am of the considered opinion that there are no grounds made out for the offence under Sections 3 and 7 of the Act. Hence, I pass the following:

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: ORDER :

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a) The criminal petition is allowed .

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b) The proceedings in Crime No.5/2019 registered by Nonavinakere Police, now pending on the file of Additional Civil Judge and JMFC, Tiptur,

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HC-KAR

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Tumakuru District in C.C.No.445/219, are hereby quashed."

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In light of the issue standing covered by judgment rendered by the Co-ordinate Bench and the facts being undisputed, the petition stands disposed on the same terms.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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BGN List No.: 2 Sl No.: 7

Dasthagir Sharif Aliyas Althaf Dastagir Sharif @ Althaf v. the State of Karnataka

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Dasthagir Sharif Aliyas Althaf Dastagir Sharif @ Althaf v. the State of Karnataka

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