Karnataka High Court

Vijayakumar S/O Shantakumar ... vs The State Of Karnataka on 19 September, 2023

Bench: M.Nagaprasannapresided Bymnpj

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                                                         NC: 2023:KHC-D:10815
                                                          CRL.P No. 103239 of 2022




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                                BEFORE

                              THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                                CRIMINAL PETITION NO. 103239 OF 2022

                      BETWEEN:

                      VIJAYAKUMAR S/O SHANTAKUMAR ANGADI,
                      AGE ABOUT 52 YEARS, OCC. BUSINESS,
                      R/O. K.H.B. COLONY, HUBBALLI-580020.
                                                                      ... PETITIONER
                      (BY SRI. NEEL P. PATEL, ADVOCATE FOR
                       SRI. SUBHASH J. BADDI, ADVOCATE)

                      AND:

                      1.   THE STATE OF KARNATAKA,
                           GADAG TOWN POLICE STATION,
                           GADAG R/BY ITS SPL. PUBLIC PROSECUTOR,
                           HIGH COURT BUILDING, DHARWAD.

                      2.   MUKKAYYA S/O SHARANAYYA HIREMATH,
VISHAL                     AGE ABOUT 42 YEARS, FOOD INSPECTOR,
                           GADAG.
NINGAPPA                                                            ... RESPONDENTS
PATTIHAL (BY SRI. V.S. KALASURMATH, HCGP)
                            THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
Digitally signed by
                      SEEKING TO QUASH THE CHARGE SHEET IN CC NO.1838/2020 I.E.
VISHAL NINGAPPA
PATTIHAL              ANNEXURE-A (ARISING OUT OF THE COMPLAINT IN G.T.P.S. CRIME
                      NO.28/2020) AGAINST THIS PETITIONER/ACCUSED NO.9 ON THE
Date: 2023.09.21      FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC-I COURT, AT
11:26:07 +0530
                      GADAG, OFFENCE PUNISHABLE U/S 3 AND 7 OF ESSENTIAL
                      COMMODITIES ACT, SECTION 420 OF IPC AND KARNATAKA
                      ESSENTIAL    COMMODITIES     PUBLIC   DISTRIBUTION    SYSTEM
                      (CONTROL) ORDER NO.19-2016.

                          THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
                      COURT MADE THE FOLLOWING:
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                                  NC: 2023:KHC-D:10815
                                   CRL.P No. 103239 of 2022




                          ORDER

1. The petitioner is before this Court calling in

question the proceedings in C.C. No.1739/2020 for the

offences punishable under Sections 3 and 7 of the

Essential Commodities Act and Section 420 of the IPC.

2. The learned counsel Sri.Neel P. Patel appearing

for the petitioner submits that the issue in the lis stands

covered by judgment of the Co-ordinate Bench in Criminal

Petition No.200423/2023, wherein the Co-ordinate Bench

has held as follows:

"The petitioners have been charge-sheeted for the offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 and under Section 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, alleging that, they had stacked the food grains in their house meant for distribution under the public distribution system in their possession without authorization.

02. The learned Magistrate, after accepting the charge sheet, took the cognizance of the aforesaid offences, and issued summons.

NC: 2023:KHC-D:10815 CRL.P No. 103239 of 2022

03. The learned counsel for the petitioners submits that, conducting of search and seizure of the food grains stacked in the house belonging to the accused is in violation of Clause (2) of Rule 19 of the Control Order, 2016.

04. The learned High Court Government Pleader submits that, the charge-sheet material clearly discloses that, the petitioners accused had stacked the food grains meant for distribution under Public Distribution System (for short PDS') unauthorizedly and the learned Magistrate, after perusing the charge sheet, has rightly taken the cognizance of the aforesaid offences, and the same does not warrant any interference.

05. Considered the submissions of the learned counsel for the petitioners - accused and the learned High Court Government Pleader for the respondent - State.

06. The State Government, In exercise of power conferred under sub-Section (5) of Section 24 of the National Food Security Act, 2013, framed Rules called as Karnataka Essential Commodities Public Distribution (Control) Order, 2016.

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07. Rule 19 of the Control Order, 2016 deals with powers of entry, search, seizure etc. The Food Inspector is one of the Officer authorized to conduct search and seizure. Clause (2) of Rule 19 of the Control Order, 2016 specifies that, the provisions of Section 100 of Cr.P.C. relating to search and seizure shall so far may be apply to searches and seizures under this Clause.

08. Section 100 of Cr.P.C. specifies that whenever any place liable to search or inspection under Chapter VII is closed, any person residing in, or being in charge of, such place shall on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

09. Section 100 of Cr.PC specifically prescribes that, search of premises can be conducted by a person executing the warrant. In the instant case, the Food Inspector has conducted search and seizure without obtaining a warrant as required under Section 94 of Cr.PC. Hence, the search and seizure conducted is in

NC: 2023:KHC-D:10815 CRL.P No. 103239 of 2022

violation of Clause (2) of Rule 19 of the Control Order, 2019.

10. The Coordinate Bench of this Court in W.P.No.36438-439/2014 and W.P.No.36542/2014 (GM- EC) disposed of on 03.12.2014, at Para No.14, has held as under:-

"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 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."

NC: 2023:KHC-D:10815 CRL.P No. 103239 of 2022

11. The prosecution has not placed any material that, the food grains seized from the possession of the accused was meant for distribution under the Public Distribution System.

In the absence of any corroborative material, the continuation of the criminal proceedings against the petitioners - accused herein, will be an abuse of process of law. Accordingly, I pass the following:"

3. The learned HCGP would not dispute the

position in law, as is laid down by the Co-ordinate Bench.

4. The issue in the lis is also akin to what is

decided by the Co-ordinate Bench in the aforesaid lis. The

petitioner is dragged into the web of crime only on the

voluntary statement rendered by the co-accused and there

is no corroborative material against the petitioner.

5. Therefore, I deem it appropriate to follow the

judgment rendered by the Co-ordinate Bench and the

reasons noted therein to allow the subject petition as well.

6. For the aforesaid reasons, the following: