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2023 DIGILAW 897 (KAR)

Sadiq Pasha v. State of Karnataka

2023-07-19

M.NAGAPRASANNA

body2023
JUDGMENT 1. The petitioner is before this Court calling in question registration of a crime in Crime No.137 of 2022 registered for offences punishable under Sec. 285 of the IPC, Sec. 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. 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 and Sons Petrol Bunk. On 15/9/2022, 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 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. 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 Sec. 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 that there is no notification issued by the State Government in terms of Sec. 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 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 punishable under Sec. 285 of the IPC, Sec. 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. Sec. 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) Sec. 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 Sec. 7 of the Act. Sec. 7 of the Act reads as follows: "7. Penalties.--(1) If any person contravenes any order made under Sec. 3, -- (a) he shall be punishable, -- (i) in the case of an order made with reference to clause (h) or clause (i) of sub-sec. The other provision is Sec. 7 of the Act. Sec. 7 of the Act reads as follows: "7. Penalties.--(1) If any person contravenes any order made under Sec. 3, -- (a) he shall be punishable, -- (i) in the case of an order made with reference to clause (h) or clause (i) of sub-sec. (2) of that Sec., 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-sec. (4) of Sec. 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. (2-A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-sec. (1) or under sub-sec. (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-sec. (2-B) For the purposes of sub-sec. s (1), (2) and (2-A), the fact that an offence under sub- clause (ii) of clause (a) of sub-sec. (1) or under sub-sec. (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-sec. (1) is again convicted of an offence under that sub-sec. 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-sec., 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) Sec. 7 of the Act deals with punishment for contravention of Sec. 3 of the Act. Therefore, it is necessary to notice Sec. 3 of the Act. Sec. 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-sec. 2) Without prejudice to the generality of the powers conferred by sub-sec. (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; (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 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) Sec. 3 of the Act deals with powers to control production, supply and distribution of essential commodities. 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) Sec. 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 Sec. 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 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 provided to the dealer, transporter, consumer or any other concerned person, as the case may be. (3) The provisions of Sec. 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 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 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 Sec. 7 of the Act. Sec. 7 of the Act directs penalty against any person who would contravene Sec. 3 of the Act. Sec. 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 notification issued by the State Government. In the absence of any notification, proceedings or offences punishable under Sec. 7 of the Act cannot be laid. The Apex Court in the case of PRAKASH BABU RAGHUVANSH v. STATE OF M.P., (2004) 7 SCC 490 . 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 Sec. 7 of the Act, the essential requirement is an order, the violation of which is alleged. 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 Sec. 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. Sec. 7 refers to contravention of any order made under Sec. 3 . It is essential for bringing in application of Sec. 7 to show that some order has been made under Sec. 3 and the order has been contravened. Sec. 3 deals with powers to control production, supply, distribution etc. of essential commodities. Exercise of such powers, can be done by "order". According to Sec. 2(c), "notified order" means an order notified in the Official Gazette, and Sec. 2(cc) provides that "order" includes a direction issued there under. 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 Sec. 7 of the Act refers to contravention of any order made under Sec. 3 of the Act. 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 Sec. 7 of the Act refers to contravention of any order made under Sec. 3 of the Act. Therefore, it is essential for bringing in application of Sec. 7 to show that some order has been made under Sec. 3 and the order has been contravened. The Apex Court further observes that Sec. 2(c) would mean a "notified order" notified in the Official Gazette or Sec. 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 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 Sec. 7 of the Act. Therefore, this would form the second rung illegality. 11. The other provision is Sec. 285 of the IPC. Sec. 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 PRAKASAM, SLP (Crl.) No.5485 of 2021 decided on 12/5/2022. has held as follows: "The High Court further held that the essential requirement of Sec. 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 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. The act of the respondents of supplying material for testing and the recycling plant 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 Sec. 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 Sec. 285 of the IPC. Therefore, this becomes a fit case for exercise of jurisdiction of this Court under Sec. 482 of the Cr.P.C. to obliterate the crime at the stage of FIR itself, in tune with the postulates laid down by the Apex Court in the case of STATE OF HARYANA v. BHAJANLAL, 1992 Supp.(1) SCC 335. 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 Sec. 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 Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 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 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 Sec. 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 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. 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 Sec. 482 of Cr.P.C., and the same shall not inure to the benefit of other accused.