Karnataka High Court
Mr Sadiq Pasha vs State Of Karnataka on 19 July, 2023
Bench: M.Nagaprasanna
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CRL.P No. 4507 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4507 OF 2023
BETWEEN:
MR. SADIQ PASHA
C/O RIYAZ PASHA
AGED ABOUT 33 YEARS
NO.5, AMBEDKAR COLONY
VILLAGE AND POST
NANGALI, MULABAGAL TALUK
KOLAR DISTRICT
KARNATAKA - 563 132.
...PETITIONER
(BY SRI SUNIL KUMAR S., ADVOCATE)
AND:
Digitally signed
by PADMAVATHI
BK 1. STATE OF KARNATAKA
Location: HIGH BY NANGALI POLICE STATION
COURT OF KOLAR DISTRICT, MULABAGAL
KARNATAKA
(REPRESENTED BY SPP
HIGH COURT BUILDING COMPLEX
BENGALURU - 560 001.)
2. SRI AMARANARAYANA
AGED ABOUT 59 YEARS
POLICE SUB - INSPECTOR
NANGLI POLICE STATION
KOLAR DISTRICT
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CRL.P No. 4507 of 2023
MULABAGAL - 563 132.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR, COMPLAINT IN
CR.NO.137/2022 OF NANGLI P.S., FOR THE OFFENCE P/U/S
285 OF IPC AND SEC.7 OF ESSENTIAL COMMODITIES ACT AND
SEC.3 OF PETROLEUM RULES, 2002, WHICH IS NOW PENDING
ON THE FILE OF THE HONBLE ADDL.CIVIL JUDGE (JR.DN) AND
J.M.F.C AT MULABAGAL AT KOLAR DISTRICT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question
registration of a crime in Crime No.137 of 2022 registered for
offences punishable under Section 285 of the IPC, Section 7 of
the Essential Commodities Act, 1955 ('the Act' for short) and
Clause 3 of the Motor Spirit and high Speed Diesel (Regulation
of Supply, Distribution and Prevention of Malpractices) Order,
1998 ('the Motor Spirit Order' for short), wrongly mentioned as
Petroleum Rules, 2002 in the FIR pending before the Additional
Civil Judge (Junior Division) and JMFC, Mulbagal, Kolar District.
2. Heard Sri Sunil Kumar S., learned counsel appearing
for the petitioner and Smt. K.P. Yashodha, learned High Court
Government Pleader appearing for the respondents.
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3. Facts adumbrated, are as follows:
The petitioner is the holder of a licence for transportation
of diesel and is an appointed person to run a petrol bunk in the
name and style of SWS & Sons Petrol Bunk. On 15-09-2022,
the Police Sub-Inspector along with his staff, who were on
patrolling duty on Mulbagal-Chittor National Highway 75, on
receipt of credible information about illegal transportation of
diesel in a lorry, which belongs to the petrol bunk of the
petitioner, reached the bunk, noticed the lorry tanker coming
out of the petrol bunk and intercepted the lorry, at which point
in time, the Driver is said to have fled the spot leaving the lorry
at the hands of the search party. It is alleged that on inspection
of the said lorry, it was noticed that diesel was loaded in the
tanker and they did not trace any licence or permit for
transportation of diesel. Pursuant thereto, they seized the lorry
and submitted the same to the Station House Officer of
Mulbagal Police Station with a direction to initiate action against
the driver of the lorry and the owner of the petrol bunk i.e., the
petitioner. Based upon the aforesaid incident and report being
made by the search party, the Station House Officer registers a
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crime in Crime No.137 of 2022, for the afore-mentioned
offences. The petitioner being aggrieved by the registration of
the crime, is knocking at the doors of this Court in the subject
petition.
4. The learned counsel appearing for the petitioner would
seek to contend a threshold bar of registration of a crime by
the respondent/Police qua the offences so alleged. It is his
submission that unless a notification is issued by the State
Government under Section 3 of the Act with regard to the
quantity of diesel, there cannot be any seizure by the officers of
the State i.e., the Police. It is his further submission that in
terms of the Motor Spirit Order, the designated authority for
search and seizure is only an Officer not below the rank of
Deputy Superintendent of Police and, therefore, would submit
that incompetent officer has searched and seized the vehicle
contrary to law. On all these submissions, the learned counsel
for the petitioner would seek that the petition be allowed and
registration of crime be quashed by obliteration.
5. On the other hand, the learned High Court Government
Pleader on instructions and verification of records would admit
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that there is no notification issued by the State Government in
terms of Section 3 of the Act, either depicting the authority or
the quantum of diesel that can be carried in a tanker but would
contend that the matter is still at the stage of registration of
crime and as such, further investigation should be permitted to
be continued against the petitioner. Insofar as competent
authority is concerned, the learned High Court Government
Pleader would contend that no prejudice is caused to the
petitioner by the act of the Police Sub-Inspector conducting
search and seizure. She seeks dismissal of the petition.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
7. The afore-narrated facts are not in dispute. The
incident is the one narrated hereinabove, which is seizure of a
diesel tanker, which belong to SWS & Sons Petrol Bunk of the
petitioner. The tanker is intercepted by the Police Sub-
Inspector and made over to the Station House Officer, Mulbagal
Police Station on its seizure and report of such seizure. The
report becomes a crime in Crime No.137 of 2022 for offences
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punishable under Section 285 of the IPC, Section 7 of the Act
and Clause 3 of the Motor Spirit Order. Before considering the
facts of the case, I deem it appropriate to notice those
provisions of law.
8. Section 285 of the IPC reads as follows:
"285. Negligent conduct with respect to
fire or combustible matter.--Whoever does,
with fire or any combustible matter, any act so
rashly or negligently as to endanger human
life, or to be likely to cause hurt or injury to
any other person, or knowingly or negligently
omits to take such order with any fire or any
combustible matter in his possession as is
sufficient to guard against any probable
danger to human life from such fire or
combustible matter, shall be punished with
imprisonment of either description for a term which
may extend to six months, or with fine which may
extend to one thousand rupees, or with both."
(Emphasis supplied)
Section 285 of the IPC deals with negligent conduct with
respect to fire or combustible matter. It mandates that
whoever by rash or negligent act would endanger human life
playing with fire or combustible matter is likely to cause hurt or
injury to any person. The other provision is Section 7 of the
Act. Section 7 of the Act reads as follows:
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"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 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 packing, 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:
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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.
(2-A) 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.
(2-B) For the purposes of sub-sections (1),
(2) and (2-A), 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
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 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."
(Emphasis supplied)
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Section 7 of the Act deals with punishment for
contravention of Section 3 of the Act. Therefore, it is necessary
to notice Section 3 of the Act. Section 3 of the Act, reads 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.
2) Without prejudice to the generality of
the powers conferred by sub-section (1), an
order made thereunder may provide--
(a) for regulating by licences, permits or
otherwise the production or manufacture of
any essential commodity;
(b) for bringing under cultivation any waste or
arable land, whether appurtenant to a building
or not, for the growing thereon of food-crops
generally or of specified food-crops, and for
otherwise maintaining or increasing the
cultivation of food-crops generally, or of
specified food-crops;
(c) for controlling the price at which any essential
commodity may be bought or sold;
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(d) for regulating by licences, permits or
otherwise the storage, transport, distribution,
disposal, acquisition, use or consumption of,
any essential commodity;
(e) for prohibiting the withholding from sale of
any essential commodity ordinarily kept for
sale;
(f) for requiring any person holding in stock,
or engaged in the production, or in the
business of buying or selling, of any
essential commodity,--
(a) to sell the whole or a specified part
of the quantity held in stock or
produced or received by him, or
(b) in the case of any such commodity
which is likely to be produced or
received by him, to sell the whole or
a specified part of such commodity
when produced or received by him,
to the Central Government or a State
Government or to an officer or agent of
such Government or to a Corporation
owned or controlled by such Government
or to such other person or class of
persons and in such circumstances as
may be specified in the order.
Explanation 1.--An order made under this
clause in relation to foodgrains, edible oilseeds or
edible oils, may, having regard to the estimated
production, in the concerned area, of such
foodgrains, edible oilseeds and edible oils, fix the
quantity to be sold by the producers in such area
and may also fix, or provide for the fixation of, such
quantity on a graded basis, having regard to the
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aggregate of the area held by, or under the
cultivation of, the producers.
Explanation 2.--For the purpose of this clause,
"production" with its grammatical variations and
cognate expressions includes manufacture of edible
oils and sugar;"
(Emphasis supplied)
Section 3 of the Act deals with powers to control production,
supply and distribution of essential commodities. The provision
mandates that control production, supply or even distribution of
essential commodities should be by way of a notification issued
by the Central Government and in respect of a State by the
State Government. The 3rd provision is notification issued
under Clause 3 of the Motor Spirit Order. The aforesaid order
is issued in exercise of powers conferred by Section 3 of the Act
by the Ministry of Petroleum and Natural Gas, Government of
India. Clause 7 of the Motor Spirit Order deals with power of
search and seizure and reads as follows:
"7. Power of search and seizure-
(1) Any Gazetted Officer of the Central
Government or a State Government or any
police officer not below the rank of Deputy
Superintendent of Police duly authorized, by
general or special order of the Central
Government or a State Government, as the
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case may be, or any officer of the oil company,
not below the rank of sales officer, may, with a
view to securing compliance with the
provisions of this Order, or for the purpose of
satisfying himself that this Order or any order
made hereunder has been complied with or
there is reason to believe that all or any of the
provisions of this Order have been and are
being or are about to be contravened.
(a) Enter and search any place or premises of a
dealer, transporter, consumer or any other
person who is an employ8ee or agent of such
dealer or transporter or consumer,
(b) Stop and search any person or vehicle or
receptacle used or intended to be used for
movement of the product;
(c) Take samples of the product and seize any of
the stocks of the product and the vehicle or
receptacle or any other conveyance used or
suspected to be used for carrying such stocks
and thereafter take or authorize the taking of
all measures necessary for securing the
production of stocks or items so seized before
the Collector or District Magistrate having
jurisdiction under the provisions of the
Essential Commodities Act, 1955 and for their
safe custody pending such production;
(d) Inspect, seize and remove with such aid or
assistance as may be necessary, books,
registers, any other records or documents of
the dealer, transporter, consumer or any
other person suspected to be an employee or
agent of the dealer, transporter or consumer;
(2) While exercising the power of seizure
provided under sub-clause (c) and (d) above, the
authorized officer shall record in writing the reasons
for doing so and a copy of such recording shall be
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provided to the dealer, transporter, consumer or
any other concerned person, as the case may be.
(3) The provisions of Section 100 of the Code
of Criminal Procedure, 1973 (2 of 1974), relating to
search and seizure shall, as far as may be, apply to
searches and seizures under this Order."
(Emphasis supplied)
In terms of the aforesaid clause, Officers nominated in the said
provision are the only ones who can search or seize. The
mandate is that, it is to be by the Deputy Superintendent of
Police that too, duly authorized by a general or special order of
the Central Government or the State Government as the case
would be or any Officer of the Oil Company not below the rank
of a Sales Officer. The aforesaid is the statutory frame work
under which the issue needs consideration.
9. The lorry belongs to the petitioner is not in dispute. It
did carry diesel in its tanker is also not in dispute. Who
conducts the search and seized the vehicle is what is required
to be noticed. The search is conducted by the Police Sub-
Inspector of the State Government and made over to the
Station House Officer of Mulbagal Police Station, who is also in
the rank of Sub-Inspector of Police, search and seizure could
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not have been conducted by the Police Sub-Inspector that too,
without any authorization by the Central Government or the
State Government as Clause 7 of the Motor Spirit Order clearly
mandates the Officers who should search and seize or any
officer who is authorized in that behalf or a Sales Officer of an
Oil Company. It is not in dispute that what was transported
was diesel and what is alleged is malpractice, both of which
would come within the purview of the Motor Spirit Order.
Therefore, the first rung of illegality of search and seizure which
renders registration of crime itself is unsustainable.
10. The other offence alleged is of Section 7 of the Act.
Section 7 of the Act directs penalty against any person who
would contravene Section 3 of the Act. Section 3 supra
mandates that control production, supply and distribution of
essential commodities shall be by way of notification issued by
the State Government. The notification is to be issued with
regard to maximum permissible limit of carrying essential
commodity inter alia under the Act. The seizure is of diesel. It
is an admitted fact that no notification is issued by the State
Government depicting maximum quantity of diesel, inter alia
that can be carried or it is brought within the purview of any
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notification issued by the State Government. In the absence of
any notification, proceedings or offences punishable under
Section 7 of the Act cannot be laid. The Apex Court in the case
of PRAKASH BABU RAGHUVANSH v. STATE OF M.P.1 has
held as follows:
"4. Though there is substance in the plea
raised by learned counsel for the State, yet, for
bringing an application under Section 7 of the Act,
the essential requirement is an order, the violation
of which is alleged. Unfortunately, neither before
the trial court nor the High Court, any effort was
made to place on record the order the violation of
which was alleged. In M.P. Ration Vikreta Sangh
Society v. State of M.P. [(1981) 4 SCC 535] it was
observed that a scheme like the one at hand is
framed under Article 162 of the Constitution of India
(in short "the Constitution"). That being so, it was
necessary for the prosecution to place on
record the "order" which, according to it, was
the foundation for taking action against the
accused-appellant.
5. Section 7 refers to contravention of any
order made under Section 3. It is essential for
bringing in application of Section 7 to show that
some order has been made under Section 3 and the
order has been contravened. Section 3 deals with
powers to control production, supply, distribution
etc. of essential commodities. Exercise of such
powers, can be done by "order". According to
Section 2(c), "notified order" means an order
notified in the Official Gazette, and Section 2(cc)
provides that "order" includes a direction issued
there under.
(2004) 7 SCC 490
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6. In the circumstances, without expressing
any opinion on the merits of the case, we remit the
matter to the High Court to hear the matter afresh.
The parties shall be permitted to place
materials in support of their respective stands.
It would be incumbent upon the State to file
materials to show as to which "order" was
violated. If the document in question is placed
before the High Court, it goes without saying
that the issue shall be examined with
reference thereto and necessary adjudication
shall be done.
7. We are told that the accused-appellant has
been in custody for nearly four months. The order of
bail granted by this Court shall continue till the
fresh adjudication is done by the High Court."
(Emphasis supplied)
The Apex Court holds Section 7 of the Act refers to
contravention of any order made under Section 3 of the Act.
Therefore, it is essential for bringing in application of Section 7
to show that some order has been made under Section 3 and
the order has been contravened. The Apex Court further
observes that Section 2(c) would mean a "notified order"
notified in the Official Gazette or Section 2(cc), an order that
includes a direction issued. If the aforesaid facts are
considered on the bedrock of what is laid down by the Apex
Court, what would unmistakably emerge is, unsustainability of
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the said provision that has been laid against the petitioner as
there is neither an order nor a notification published in the
Official Gazette by the State Government to allege offence
under Section 7 of the Act. Therefore, this would form the
second rung illegality.
11. The other provision is Section 285 of the IPC. Section
285 of the IPC (supra) mandates rash or negligent act by any
person so as to endanger human life, while dealing with fire or
combustible matter knowingly or unknowingly. The Apex Court
in the case of GURUKANWARPAL KIRPAL SINGH v. SURYA
PRAKASAM2, has held as follows:
"The High Court further held that the essential
requirement of Section 285 of IPC was that the
accused must have done something with fire or any
combustible matter in a rash and negligent manner
to endanger human life.
The FIR in the present case does not show
anything done by the accused with fire or any
combustible matter. The act of recycling plastic
waste material or supply of plastic waste
material for recycling by the petitioner No.2
could not be said to be an act done with fire or
any combustible matter.
The act of the respondents of supplying
material for testing and the recycling plant
SLP (Crl.) No.5485 of 2021 decided on 12-05-2022
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could not be said to be a negligent or rash act
done to endanger human life. Thus, the
essential ingredients of the offence were
absent.
In our considered opinion, the well reasoned
and well considered judgment of the High Court
does not call for interference, more so, when the
High Court has made it clear that the order would
not come in the way of the respondent No.2 in
instituting any civil proceedings against the
petitioner in respect of any grievance, if permissible
in law, which would then be considered and decided
in accordance with law."
(Emphasis supplied)
The Apex Court affirms the findings of the High Court qua
Section 285 of the IPC holding that the accused must have
done something with fire or any combustible matter in a rash or
negligent manner to endanger human life. The petitioner is not
alleged to have done any such act or the driver of the lorry of
the petitioner. The allegation is that, diesel was being
transported in the diesel tanker for sale without invoice. This
can hardly become an ingredient of the offence punishable
under Section 285 of the IPC. Therefore, this becomes a fit
case for exercise of jurisdiction of this Court under Section 482
of the Cr.P.C. to obliterate the crime at the stage of FIR itself,
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in tune with the postulates laid down by the Apex Court in the
case of STATE OF HARYANA v. BHAJANLAL3 as follows:
"102. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence
collected in support of the same do not
1992 Supp.(1) SCC 335
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disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
(Emphasis supplied)
In the light of the aforesaid reasons and the judgments of
the Apex Court quoted supra, if further investigation is
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permitted to continue, it would become an abuse of the process
of law and result in miscarriage of justice.
12. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The Crime No.137 of 2022 registered before the
Nangali Police Station and pending before the
Additional Civil Judge (Junior Division) and JMFC,
Mulbagal, qua the petitioner - accused No.3, stands
quashed.
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of the petitioner - accused
No.3 under Section 482 of Cr.P.C., and the same
shall not inure to the benefit of other accused.
Sd/-
JUDGE
nvj
CT:SS
