Karnataka High Court
Manjunath Harlapur S/O. ... vs The State Of Karnataka on 16 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.101739 OF 2021
C/W.
CRIMINAL PETITION NO.101740 OF 2021
CRIMINAL PETITION NO.101741 OF 2021
CRIMINAL PETITION NO.101742 OF 2021
CRIMINAL PETITION NO.101745 OF 2021
CRIMINAL PETITION NO.101746 OF 2021
CRIMINAL PETITION NO.101747 OF 2021
IN CRIMINAL PETITION NO.101739 OF 2021
BETWEEN:
MANJUNATH HARLAPUR
S/O VEERUPAKSHAPPA
AGE: 39 YEARS,
OCC.: PROPRIETOR OF
BALAJI TRADING COMPANY,
R/O.: P-172, APMC MARKET YARD,
AMARGOL, HUBBALLI,
DIST. DHARWAD - 580 001.
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY PSI, APMC POLICE STATION,
2
NAVANAGAR, HUBBALLI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH - 580 001.
2. SUHAS YARESHIMI
S/O GANESH
AGE: 34, OCC.: STATE GOVERNMENT EMPLOYEE,
R/O.: FOOD INSPECTOR ZONAL NO.1
FOOD AND SUPPLIES DEPARTMENT IRA,
HUBBALLI, DHARWAD - 580 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED NO.3
REGISTERED IN HUBBALLI, NAVANAGAR, APMC POLICE STATION,
CRIME NO.5/2021 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1995, SECTION 3
(2) (3) AND 18 OF KARNATAKA ESSENTIAL COMMODITIES (PUBLIC
DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 2016, PENDING
ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND JMFC
COURT, HUBLI, DHARWAD DISTRICT.
IN CRIMINAL PETITION NO.101740 OF 2021
BETWEEN:
MANJUNATH HARLAPUR
S/O VEERUPAKSHAPPA
AGE. 39, OCC.: PROPRIETOR OF
BALAJI IMPEX,
R/O.:P-172, APMC MARKET YARD,
AMARGOL, HUBBALLI,
DIST. DHARWAD - 580 001.
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
3
AND:
1. STATE OF KARNATAKA
BY PSI, KITTUR POLICE STATION,
BELAGAVI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH - 580 001.
2. VASANT ARASHINAKAR
S/O SHANKAR
AGE:50, OCC.:GOVERNMENT OFFICIAL
NON-GAZETTED
R/O: TAHASHILDAR,
TQ.:KITTUR, DIST. BELAGAVI - 590 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED NO.6
REGISTERED IN KITTUR POLICE STATION, BELAGAVI, CRIME
NO.11/2021 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1955, SECTION
18(a), 18(b), 18(c) OF KARNATAKA ESSENTIAL COMMODITIES
(PUBLIC DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 1992,
PENDING ON THE FILE OF CIVIL JUDGE AND JMFC COURT,
KITTUR, BELAGAVI DISTRICT.
IN CRIMINAL PETITION NO.101741 OF 2021
BETWEEN:
MANJUNATH HARLAPUR
S/O VEERUPAKSHAPPA
AGE. 39 YEARS,
OCC. BUSINESS,
4
RO. BIDNAL, TQ. HUBBALLI
DIST. DHARWAD-580001
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY PSI KASABAPETH
POLICE STATION, HUBBALLI
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH - 580 001.
2. SUHAS YARESHIMI
S/O. GANESH
AGE. 34 YEARS,
OCC. GOVERNMENT OFFICIAL
NON-GAZETTED
R/O. FOOD INSPECTOR ZONAL NO.1
FOOD AND SUPPLIES DEPARTMENT IRA
HUBBALLI, DHARWAD - 580 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED REGISTERED
IN HUBBALLI, KASABAPETH POLICE STATION, CRIME NO.41/2020
FOR THE OFFENCES PUNISHABLE U/S 7 AND SECTION 3 OF
ESSENTIAL COMMODITIES ACT, 1995, SECTION 3 AND 18 OF
KARNATAKA ESSENTIAL COMMODITIES (PUBLIC DISTRIBUTION
SYSTEM) PUBLIC CONTROL ORDER 2016, SECTION 420 OF IPC,
1860, PENDING ON THE FILE OF JMFC 3RD COURT, HUBLI,
DHARWAD DISTRICT.
5
IN CRIMINAL PETITION NO.101742 OF 2021
BETWEEN:
RUDRAPPA BETAGERI S/O SHANKRAPPA
AGE. 42 YEARS, OCC. BUSINESS,
R/O. AMARGOL, TQ. HUBBALLI,
HUBBALLI, DIST. DHARWAD 580 001.
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
BY PSI, APMC POLICE STATION,
NAVANAGAR, HUBBALLI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH - 580 001.
2. SUHAS YARESHIMI
S/O GANESH
AGE. 34 YEARS,
OCC. GOVERNMENT OFFICIAL, NON-GAZETTED,
R/O. FOOD INSPECTOR ZONAL NO.1,
FOOD AND SUPPLIES DEPARTMENT IRA,
HUBBALLI,
DHARWAD - 580 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED REGISTERED
IN HUBBALLI, NAVANAGAR, APMC POLICE STATION, CRIME
NO.85/2020 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1995, SECTION 3
AND 18 OF KARNATAKA ESSENTIAL COMMODITIES (PUBLIC
DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 2016, SECTION
6
420 OF IPC, 1860, PENDING ON THE FILE OF III ADDL. SENIOR
CIVIL JUDGE AND JMFC COURT, HUBLI, DHARWAD DISTRICT.
IN CRIMINAL PETITION NO.101745 OF 2021
BETWEEN:
MANJUNATH HARLAPUR S/O VIRUPAKSHAPPA
AGE. 39 YEARS,
OCC. PROPRIETOR OF
SRI BALAJI TRADING COMPANY,
R/O. P-172,
APMC MARKET,
AMARGOL, HUBBALLI 580025.
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY PSI,
NANDAGAD POLICE STATION,
KHANAPUR, BELAGAVI DISTRICT,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH - 580 001.
2. MARUTI CHOTANNAVAR
S/O PUTTAPPA
AGE. 40 YEARS,
OCC. FOOD INSPECTOR,
R/O. FOOD INSPECTOR ZONAL NO.1,
FOOD AND SUPPLIES DEPARTMENT IRA,
HUBBALLI, DHARAD - 580 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
7
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED NO.1
REGISTERED IN NANDAGAD POLICE STATION, KHANAPUR, CRIME
NO.110/2020 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1995, SECTION 18
(A) (B) (C) OF KARNATAKA ESSENTIAL COMMODITIES (PUBLIC
DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 1992, PENDING
ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, KHANAPUR,
BELAGAVI DISTRICT.
IN CRIMINAL PETITION NO.101746 OF 2021
BETWEEN:
MANJUNATH HARLAPUR
S/O VEERUPAKSHAPPA
AGE. 39 YEARS,
OCC. BUSINESS,
R/O. BIDNAL, TQ. HUBBALLI,
HUBBALLI,
DIST. DHARWAD - 580 001
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY PSI,
APMC POLICE STATION,
NAVANAGAR, HUBBALLI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH - 580 001.
8
2. SUHAS YARESHIMI
S/O GANESH, AGE. 34 YEARS,
OCC. GOVERNMENT OFFICIAL
NON.GAZETTED,
R/O. FOOD INSPECTOR ZONAL NO.1,
FOOD AND SUPPLIES DEPARTMENT IRA,
HUBBALLI, DHARWAD - 580 001.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED REGISTERED
IN HUBBALLI, NAVANAGAR, APMC POLICE STATION, CRIME
NO.86/2020 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1995, SECTION 3
AND 18 OF KARNATAKA ESSENTIAL COMMODITIES (PUBLIC
DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 2016, SECTION
420 OF IPC, 1860, PENDING ON THE FILE OF III ADDL. SENIOR
CIVIL JUDGE AND JMFC COURT, HUBBALLI, DHARWAD DISTRICT.
IN CRIMINAL PETITION NO.101747 OF 2021
BETWEEN:
MANJUNATH HARLAPUR
S/O. VEERUPAKSHAPPA
AGE. 39, OCC. PROPRIETOR OF
BALAJI TRADING COMPANY,
R/O. P-172, APMC MARKET YARD,
AMARGOL, HUBBALLI,
DIST. DHARWAD-580001
... PETITIONER
(BY SRI V.M.SHEELVANT, ADVOCATE APPEARED FOR
SRI S.H.MITTALKOD AND SRI M.L.VANTI, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY PSI, BAILHONGAL POLICE STATION,
9
BELAGAVI - 590 001,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH - 580 001.
2. VEERABHADRA SEBANNAVAR S/O. NINGAPPA
AGE. 45, OCC. GOVERNMENT OFFICIAL
NON-GAZETTED,
R/O. FOOD INSPECTOR TEM OFFICE,
TQ. BAILHONGAL,
DIST. BELAGAVI - 590 201.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLIANT AND FIR
REGISTERED AGAINST THE PETITIONER/ACCUSED NO.1
REGISTERED IN BAILHONGAL POLICE STATION, CRIME
NO.202/2020 FOR THE OFFENCES PUNISHABLE U/S 7 AND
SECTION 3 OF ESSENTIAL COMMODITIES ACT, 1995, SECTION 18
(a), 18(b), 18(c) OF KARNATAKA ESSENTIAL COMMODITIES (PUBLIC
DISTRIBUTION SYSTEM) PUBLIC CONTROL ORDER 1992, PENDING
ON THE FILE OF ADDL. CIVIL JUDGE (JR.DN) AND JMFC COURT,
BAILHONGAL, BALAGAVI DISTRICT.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners in all these petitions call in question
proceedings instituted by respondent No.1/State and its Official
under the penal provisions of the Essential Commodities Act, 1955.
Since all these petitions raise a common questions of law and facts,
are taken up together and considered in this common order.
2. Heard learned counsel Sri V.M.Sheelvant, appearing for the
petitioners and Sri Ramesh Chigari, learned High Court Government
Pleader for respondent No.1 - State, in all these cases.
3. Brief facts leading to the filing of the present petitions, as
borne out from the pleadings, are as follows:-
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 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.
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.
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.
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.
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.
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.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and perused the material
on record.
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:-
"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.
............ ............ .....................
(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."
Section 7.Penalties.―(1) If any person
contravenes any order made under Section 3,―
(a) he shall be punishable,―
(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
(ii) in the case of any other order, 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:
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;
(b) any property in respect of which the order
has been contravened shall be forfeited to
the Government;
(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.
(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:
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.
(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:
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 six months.
(2B) For the purposes of sub-sections (1), (2) and
(2A), the fact that an offence under sub-clause (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.
(3) Where a person having been convicted of an
offence under sub-section (1) is again convicted
convicted of an offence under that sub-section 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."
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:
"2. Definition . - In this order, unless the
context otherwise requires:
... ... ... ...
(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
these essential commodities to the fair price depots
for distribution to ration card holders or to be a Fair
Price Depot.
... ... ... ...
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.
... ... ... ...
(c) "Authorized Agency" in respect of
Authorized Agency for Transportation of PDS
commodities,-
The priority shall be as follows:-
(i) The State Government owned
Corporation/Undertakings or Companies;
(ii) Registered Private transporters.
... ... ... ...
18. Prohibition of unauthorized sale of
food grains and essential commodities issued
through Public Distribution System:
(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.
(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.
(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."
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.
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.
12. The Apex Court in the case of LALITHA KUMARI
(supra), has held as follows:
"Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
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.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry 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.
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.
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.
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:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(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.
The aforesaid are only illustrations and not exhaustive
of all conditions which may warrant preliminary inquiry.
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 fact of such delay and the
causes of it must be reflected in the General Diary
entry.
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."
In the light of the law laid down in the afore-extracted
judgment, the action of the respondents is rendered unsustainable.
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.
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:
"«µÀAiÀÄ: J.¦.JA.¹. £Àª£À U
À Àg,À ¥ÉÆð¸ïoÁuÉAiÀÄ C¥ÀgÁzsÀ ¸ÀASÉå
05/2021 gÀ°è ªÀ±¥ À rÀ ¹PÉÆAqÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ
ºËzÀÉÆà C®èªÉÇà J£ÀÄߪÀ PÀÄjvÀÄ.
G¯ÉèÃR: 1) ¥ÉÆð¸ï ¸À¨ïE£ïì¥PÉ ÀÖgï (PÁ¸ÀÄ) J.¦.JA.¹. £Àª£ À UÀ g
À À
¥ÉÆð¸ïoÁuÉ, ºÀħâ½î EªÀgÀ ¥ÀvÀæ PÀª
æ ÀiÁAPÀ: / 2021,
¢£ÁAPÀ:-27/08/2021.
2) DºÁgÀ ¤jÃPÀëPg
À ÀÄ, ªÀ®AiÀÄ ¸ÀASÉå 1 & 3 EªÀgÀ ªÀg¢
À
¢£ÁAPÀ: - 04/09/2021.
¥À¸
æ ÀÄÛvÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ UÀÄ£Áß £ÀA.05/2021 gÀ°è DºÁgÀ
¤jÃPÀëPg
À ÀÄ ¢£ÁAPÀ :-14/01/2021 gÀAzÀÄ ¨ÉÆïÉÆgÉÆ ªÁºÀ£À ¸ÀASÉå PÉ.J.25
¹3889 £ÉÃzÀÝg° À è zsÁgÀªÁqÀ¢AzÀ ºÀħâ½î C£À¢Pü ÀÈvÀªÁV CQÌAiÀÄ£ÀÄß ¸ÁUÁl
ªÀiÁrPÉÆAqÀÄ §gÀÄwÛzÁÝUÀ zÁ½ ªÀiÁrzÀ PÁ®PÉÌ ¸Àzj À ªÁºÀ£À ªÀÄvÀÄÛ
CzÀg° À èAzÀ CQÌAiÀÄ£ÀÄß d¥ÀÛ ªÀiÁrPÉÆAqÀÄ ¥ÀPæ gÀ t
À zÁR°¹zÀÄÝ EgÀÄvÀÛz.É
¸ÀzjÀ ¥ÀPæ g
À t
À zÀ°è ªÀ±¥
À Àr¹PÉÆAqÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ ºÉƮĪÀ
ªÀiÁzÀjAiÀÄ°èzÀÄÝ, DzÀÝjAzÀ ¸Àzj À CQÌ ¥ÀrvÀgÀ CQÌ ºËzÉÆÃ? C®èªÉÇÃ
C£ÀÄߪÀ §UÉÎ ¸ÀàµÀÖ C©ü¥ÁæAiÀÄ ªÀg¢À ¤ÃqÀ®Ä G¯ÉèÃR (1) gÀ°è PÉÆÃjgÀÄwÛÃj.
CzÀgAÀ vÉ G¯ÉèÃR (2) gÀ°è DºÁgÀ ¤jÃPÀëPg À ÀÄ C©ü¥ÁæAiÀÄ ¸À°è¹gÀÄvÁÛg.É
DºÁgÀ ¤jÃPÀëPÀgÀ C©ü¥ÁæAiÀÄzÀAvÉ ¸ÀzjÀ ¥ÀPæ gÀ ÀtzÀ°
À è ªÀ±¥
À r
À ¹PÉÆAqÀ
CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌ ºËzÀÄ, ¸ÀzjÀ CQÌAiÀÄÄ ¥ÀrvÀgÀ CQÌAiÀÄ jÃvÁå EgÀÄvÀz Û É
JA§ C©ü¥ÁæAiÀĪÀ£ÀÄß vÀªÀÄUÉ ¸À°¹
è zÉ.
®UÀvÀÄÛ:- G¯ÉèÃR (2) gÀ ¥ÀvÀæzÀ £ÀP®
À Ä
vÀªÀÄä «±Áé¹
¸À»/-
¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPgÀ ÀÄ
DºÁgÀ £ÁUÀjPÀ ¸Àg§ À gÁdÄ ªÀÄvÀÄÛ
UÁæºPÀ g
À À ªÀåªÀºÁgÀU¼À À E¯ÁSÉ ºÀħâ½î".
(Emphasis added)
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 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.
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. Therefore, it is
for the Department concerned to put its house in order and not
engage in such recklessness in future, particularly, dealing with
offences under the Act or the Order.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) All these criminal petitions are allowed.
(ii) Crime No.5 of 2021 pending before the III Additional
Senior Civil Judge and JMFC, Hubli, concerned in
Crl.P.No.101739 of 2021;
Crime No.11 of 2021 pending before the Civil Judge
& JMFC, Kittur concerned in Crl.P.No.101740 of
2021;
Crime No.41 of 2020 pending before the JMFC 3rd
Court, Hubli, concerned in Crl.P.No.101741 of 2021;
Crime No.85 of 2020 pending before the III
Additional Senior Civil Judge and JMFC, Hubli,
concerned in Crl.P.No.101742 of 2021;
Crime No.110 of 2020 pending before the Additional
Civil Judge and JMFC, Khanapur, concerned in
Crl.P.No.101745 of 2021;
Crime No.86 of 2020 pending before the III
Additional Senior Civil Judge and JMFC, Hubli,
concerned in Crl.P.No.101746 of 2021;
Crime No.202 of 2020 pending before the Additional
Civil Judge (Junior Division) and JMFC, Bailhongal,
Belagavi district, concerned in Crl.P.No.101747 of
2021;
All stand quashed.
In view of the disposal of the main petitions, all the
pending I.As'. do not survive for consideration and the same
are disposed of.
Sd/-
JUDGE
nvj
CT:MJ
