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Tousif v/s The State of Karnataka, Rep. by Addl. State Public Prosecutor, Dharwad & Another


Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

Company & Directors' Information:- G E CO PUBLIC LIMITED [Strike Off] CIN = U36900WB1951PLC021802

Company & Directors' Information:- PUBLIC COMPANY LIMITED [Dissolved] CIN = U74900KL1948PLC000930

    Criminal Petition No. 100550 of 2020

    Decided On, 23 September 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE SURAJ GOVINDARAJ

    For the Petitioner: Harshawardhan M. Patil, Patil, Advocates. For the Respondents: R1, Ramesh Chigari, HCGP.



Judgment Text

(Prayer: This Criminal Petition is filed U/S 482 of Cr.P.C. seeking to quash the registration of the Fir and Complaint in Kudachi P.S. Crime No.13/2020 for the offences P/Us/ 420 of IPC and U/S 3, 7 of Essential Commodities Act, 1955 and U/S 18(A)(C) of the (Public Distribution System) Public Control Order 1992, insofar as the petitioner is concerned.)1. The petitioner is before this Court seeking for quashing of the FIR and complaint in Kudachi Police Station Crime No.13/2020 for the offences punishable under Section 420 of the IPC, under Section 3, 7 of the Essential Commodities Act, 1955 ('the Act', for short) and under Section 18(a)(c) of the (Public Distribution System) Public Control Order, 1992 ('the PDS Order' for short) insofar as petitioner is concerned.2. The complaint filed on 18.01.2020 by the Police Inspector indicate that:2.1 On 18.01.2020 he has received information that the rice, which is part of the Public Distribution System was being sold in an unauthorized and illegal manner, thereby affecting the interest of the State and Public.2.2 On coming to know that, he informed the same to his superiors and on taking instructions from his superior officers, the same is informed to the concerned in the Food Department and pursuant thereto, Sri.Pratap Naiker, Food Inspector was deputed to carry out a search and seizure of any incriminating articles, if found.2.3 In pursuance thereto, Sri. Pratap Naikar, Food Inspector met the complainant at Kudachi Police Station and thereafter they carried out the search and seizure.2.4 When the offending rice was seized, a panchanama was conducted, which has been signed by the said Food Inspector and subsequently the above complaint was filed for the aforesaid offences.2.5 It is aggrieved by the said complaint that the petitioner is before this Court.3. Sri. Harshavardhan V. Patil, learned counsel for the petitioner would submit that;3.1 The Police Inspector had no power to carry out any search and seizure and/or file a complaint and as such, the entire process being contrary to law is required to be quashed.3.2 In this regard, he relies the decision of this Court in Criminal Petition No.4233/2016 in the case of Sri. Shaik Markhum Ahmed and another Vs. The State of Karnataka, disposed of on 18.08.2016, more particularly paras 5, 6 and 7 which is reproduced hereunder for easy reference:"5. The learned counsel would therefore contend that from the tenor of the above stated Section, the mechanism for regulating and enforcing the Essential Commodities Act and the prevention of any such illegal transaction or sale of foodgrains is under the power and control of officers authorized by the State Government and the said powers cannot be enforced or exercised by police, as in the present case on hand the entire action of the police authorities is illegal and without jurisdiction and the seizure of the foodgrains which are now kept in the open space are susceptible and certainly would cause loss to the petitioners and therefore would submit on the sole ground that the seizure search and seizure of foodgrains has been made illegal and without jurisdiction, the entire proceedings ought to be quashed and the goods be released in favour of the petitioners.6. The learned State Public Prosecutor would concede that the said regularization namely The Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 does prescribe the Authority or the Officers who could carry out search and seizure of foodgrains to which the provisions of the Essential Commodities Act and other alike provisions would apply and that the seizure by the police was without authority cannot be the glaring circumstance.7. The petition is summarily allowed. The proceedings initiated and the seizure carried out are held to be illegal and quashed. The goods which have been detained by the police have been released in favour of the petitioners."3.3 He relied on the decision in Criminal Petition No.9842/2016 in the case of Sri. Shanthamurthy and Another Vs. The State of Karnataka and another, disposed of on 18.05.2017, more particularly para 5, which is reproduced hereunder for easy reference:"5. Consequently, the present petition is also allowed in the light of the admitted circumstance that the proceedings have been initiated for violation of the provisions of the Essential Commodities Act at the instance of a person who was not an authorized person as required under the Act and the search and seizure conducted by the police is also irregular and cannot be sustained. The proceedings in C.C.5666/2014 on the file of the Principal Civil Judge (Jr.Dn) and JMFC, Tumkur, stands quashed."3.4 Relying on the said decisions, Sri.Harshavardhan Patil would submit that this Court in the aforesaid decisions has held that a Police Inspector could not have conducted search and seizure or file a complaint and as such, the said rulings are applicable on all fours to the present fact situation and therefore, the proceeding against the petitioner in the present complaint applying the said decisions ought to be quashed.4. Per contra, Sri. Ramesh Chigari, learned HCGP for the respondent-State would submit that;4.1 There is a distinction in the facts of the judgments relied upon by the petitioner and the present facts, in that, in those two decisions the Police Inspector stopped the ongoing vehicle and conducted a search and seizure and thereafter filed a complaint. During the entire process neither the Food Department was informed nor a representative of the Food Department present at the time of search and seizure.4.2 Thus, this Court in those decisions has held that there is violation of Regulation 19 of the PDS Control Order and therefore quashed the proceedings.4.3 However, in the present case, the Police Inspector has acted with alacrity and responsibility. He has informed this to his immediate superiors and also the concerned in the Food Department who had deputed the Food Inspector to carry out search and seizure.4.4 The search and seizure was carried out by the Food Inspector and the Police Inspector. The panchanama has been signed by the Food Inspector. Therefore, there is no violation of the aforesaid regulation 19.4.5 Regulation 19 does not speak of the person who can file a complaint. The said Regulation only speaks of search and seizure. The complaint is required to be filed in terms of Section 11 of the Act and in terms thereof a Public Servant as defined under Section 21 of the IPC could file such a complaint.4.6 Hence he submits that those decisions are not applicable to the present fact situation. Search and seizure was jointly carried out by the Food Inspector and Police Inspector and thereafter complaint having been filed with the Police Inspector, the same is in compliance with Regulation 19 of the PDS Control Order and Section 11 of the Act. Therefore, the petition is liable to be dismissed.5. Heard Sri. Harshavardhan V. Patil, learned counsel for the petitioner and Sri. Ramesh Chigari, learned HCGP for the respondent-State. Perused the records.6. The short question on which Sri. Harshawardhan M. Patil, has sought for quashing of the proceeding is that, there is violation of Regulation 19 of the PDS Control Order. The said Regulation is reproduced hereunder for easy reference:"19. Powers of Entry, Search, Seizure, etc.: (1) The Director of Food and Civil Supplies, the Joint Directors of Food and Civil Supplies, or the Tahsildar of a taluk, and Authorized Authority or any other officer of the Department of Food and Civil Supplies not below the rank of a Food Inspector within their jurisdiction may with such assistance, if any, as he thinks fit and if he has reason to believe that there is or has been any contravention of the provisions of this order or with a view to securing compliance with this order or to satisfying himself that there is or has been any contravention of the order:(a) require the owner, occupier or any other person in charge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any authorization issued there under has been, is being or is about to be committed, to produce any books, accounts or other documents showing transactions relating to such contraventions:(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any authorization issued there under has been, is being or is about to be committed;(c) take or cause to be taken extracts from or copies of any documents showing transactions relating to such contraventions which are produced before him;(d) search, seize and remove books, accounts and other documents and stocks of essential commodity and the animals vehicles, vessels or other conveyance used in carrying the said essential commodities in contravention of the provisions of this order, or of the conditions of the authorization issued there under and thereafter take or authorize the taking of all measures necessary for securing the production of stocks, of essential commodity and the animals, vehicles, vessels or other conveyance so seized, in a Court for their safe custody pending such production.(2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall so far may be, apply to searches and seizures under this clause."7. Relying on the same, he submitted that a Police Inspector could not have carried out the search and he ought to be a person authorized under Regulation 19, who can do it. A perusal of the extraction of Regulation 19 above, it would indicate that the Commissioner of Food and Civil Supplies and Consumer Affairs Department, the Additional Director and Joint Director of Food Civil Supplies and Consumer Affairs Department or Tahasildar of a Taluka or Authorized Authority or any other officer of the Department of Food Supply and Consumer Affairs not below the rank of Food Inspector within their jurisdiction may give such assistance in the event of any contravention of the order in order to secure information and/or detection of any contravention search seizure etc. as mentioned hereinabove.8. In the present case, Sri. Pratap Naiker, Food Inspector had been deputed, he was at the spot and a search and seizure was jointly carried out by the Food Inspector and the Police Inspector. This joint search and seizure in my considered opinion is in compliance of Regulation 19 of the PDS Control Order.9. Such being the case, as rightly contended by Sri.Ramesh Chigari, the decisions relied upon by Sri. Harshwardhan Patil in Shaik Markhum Ahmed's case (supra) and Shanthamurthy's case (supra) would not be applicable to the present case, since in those cases as could be seen, there was no presence of any representative of the Food Department as required under Regulation 19.10. Thus, I am of the considered opinion that the search and seizure which has been conducted is in terms of Regulation 19 and there is no violation thereof.11. As regards the complaint, the contention of Sri.Harshwardhan Patil was that the Police Inspector could not have filed the complaint again by relying upon Regulation 19 of the PDS Control Order. On a careful reading of Regulation 19, it is seen that the same does not provide for as to who should file a complaint. It provides only the person who can carry search and seizure. The said search and seizure to be carried out in accordance with Section 100 of Code of Criminal Procedure which is a general provision applicable to search and seizure. The relevant provision which relates to and provides authority to file a complaint is in terms of Section 11 of the Act, which is reproduced hereunder for easy reference:"Section 11: Cognizance of offences.--No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code (45 of 1860) or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not."12. A reading of the above Section would categorically indicate that for the purpose of taking cognizance of any complaint, the complaint is required to be filed by a public servant within the meaning of Section 21 of the IPC and/or any person aggrieved or any recognized consumer association. Section 21 of the IPC reads as under:"21. "Public servant".-- The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:--[***] Second.-- Every Commissioned Officer in the Military, Naval or Air Forces of India;Third.-- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;Fourth.-- Every officer of a Court of Justice including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;Fifth.-- Every juryman, assessor, or member of a panchayat assist- ing a Court of Justice or public servant;Sixth.-- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;Seventh.-- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;Eighth.-- Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;Ninth.-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;T

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enth.-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;Eleventh.-- Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;Twelfth.-- Every person--(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)."13. The said Section 21 is very wide and considering the 7th, 8th and 9th portions thereof, a Police Inspector would fall within the definition of Public Servant under Section 21.14. Such being the case, the filing of the complaint by the Police Inspector is proper and correct. The complaint is not necessarily be filed by the persons stated in Regulation 19 as contended by Sri.Harshawardhan Patil. Hence the present complaint being filed by a proper and authorized person in terms of Section 11 of the Act read with Section 21 of the IPC, I am of the considered opinion that there is no infirmity in this matter.15. In view thereof, there being no grounds made out by the petitioners, the petition is dismissed.
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