IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.865 OF 2015 Between:
1. Syed Khalandar S/o Syed Nawazulla Aged about 26 years R/at No.919/2, A-91 Ajjampura Layout K.B. Extension Davanagere City - 576129.
2. Smt Shahanaz S. N., W/o Munir Ahamed Junedi Aged about 32 years R/at No.1523, 2nd Main 10th Cross, K.T.J. Nagar Davangere - 576216.
(By Sri Shivaramu .H.C - Advocate) And:
State of Karnataka By Jagalur Police Represented by The State Public Prosecutor High Court Buildings Bengaluru – 560 001.
(By Sri Thejesh .P - HCGP) ... Petitioners ... Respondent ****** This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the order dated 20.06.2015 passed by the C.J. (Jr. Dn.,) and J.M.F.C., Jagalur in C.C.No.364/2013 and allow the application filed by the accused / petitioners under Section 239 of Cr.P.C., and consequently discharge the petitioners.
This Criminal Revision Petition coming on for Final Hearing, this day, the Court made the following:
O R D E R Heard the learned counsel Shri H.C. Shivaramu for the petitioner and the learned HCGP Shri Thejesh for the State.
2. This Criminal Revision Petition is directed against the order passed by the Court below in C.C.No.364/2013 dated 20.06.2015, dismissing the application filed by the accused under Section 239 seeking discharge.
3. The case of the prosecution is that on 11.11.2012 on receiving credible information, the Circle Inspector of Police, Jagalur Circle, Jagalur along with his staff were waiting near Kamagethanahalli Cross road leading to Donnehalli. At about 3.45 a.m., two lorries had come from Jagalur side and though the police gave signal to stop the lorries, the drivers without stopping, were proceeding towards Chitradurga. However, the police chased the lorries in their jeep and ultimately stopped the lorries and apprehended the drivers of the respective lorries. When the police asked them to provide the tappal / way bill, the drivers had provided the way bill. In the way bill, it was mentioned as “Karnataka Warehouse, Davanagere” and driver’s name was mentioned as Rajeev and Contractor’s name was mentioned as Shahanaz S.N and the way bill also mentioned that the lorry contained 350 bags of rice. It was stated that the said rice was being transported from Davanagere Warehouse to Jagalur Government Food Corporation Depot. Further, the names of the drivers mentioned in the way bill was different from the drivers who were driving the lorries. Further, during the enquiry with Suhel and Khader Khan, the cleaners present in both the lorries, it was disclosed that both of them were working with the transporter Shahanaz S.N. – petitioner no.2 herein of Davanagere. It was further learnt that as per the direction of the first petitioner – Syed Khalander, after loading the rice at Davanagere, they were proceeding to Chitradurga to sell the same, without unloading the rice at Food Depot, Jagalur. It was also disclosed that they were transporting the rice meant for distribution through Public Distribution System (PDS) in order to sell it for a higher price in open market and to obtain profit out of the sale. The first lorry bearing No.CAS-3423 contained 350 bags of rice and the second lorry bearing No.KA-05-D-4135 contained 350 bags of rice. In view of these allegations in the complaint, crime came to be registered and thereafter the case was proceeded for investigation and charge-sheet was laid against the accused. The Trial Court thereafter by order dated 20.06.2015 in C.C.No.364/2013 rejected the applications under Section 239 Cr.P.C. filed by Accused Nos.1 and 6 - petitioners herein seeking discharge. It is this order which is under challenge in this petition seeking to set aside the same urging various grounds.
4. The learned counsel for the petitioner contends that the respondent – police have erred in registering the case against the first petitioner even though he is not the Transport Contractor to transport the foodgrains from Davanagere to Jagalur. However, the second petitioner is the Transport Contractor who had in fact transported the foodgrains on 11.11.2012 with the permission of the Authority to Jagalur. Hence, he contends that the proceedings, the case registered against the first petitioner as well as the charge sheet are liable to be quashed.
It is his further contention that as on the date of seizure of the lorries, the second petitioner was residing at Doha City situated at State of Qatar, which is evidenced from his passport. Therefore, he contends that inclusion of his name in the charge sheet is illegal and contrary to record.
It is the further contention of the learned counsel that the jurisdictional police has failed to notice the principles of law laid down by this Court holding that the police cannot investigate the offences under Sections 3 and 7 of the Essential Commodities Act. In that, the authorized authority, viz., the Deputy Commissioner as defined under Section 2(d) of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 or any other Officer of the Department of Food and Civil Supplies not below the rank of a Food Inspector within their jurisdiction was the competent authority to do so. Therefore, he contends that filing of charge sheet against petitioners is not only contrary to the provisions of the PDS Control Order, 1992 but also contrary to the decision of this court reported in 2013 (1) KCCR 398.
The foodgrains were being transported by the authorized Contractor from State Warehouse Corporation Godown, Davanagere to Jagalur Wholesale point with the permission of the Authority. Since the proceedings were initiated by the jurisdictional police on their own accord without there being any valid complaint by a competent person defined under Clause 19 of the KEC (PDS) Control Order, 1992, it was illegal exercise of power not vested with the police. It is his vehement contention that as the distance between Davanagere and Jagalur being 60 kms., the lorries which were fully loaded having reached Jagalur at late hours, the drivers were forced to park the same in front of the gate of wholesale point at Jagalur for unloading the same on the next day morning. The police had illegally seized the lorries and initiated criminal case against the petitioners, which he contends is without authority of law. He contends that the seizure of the lorries has been made merely based on suspicion.
The Jurisdictional Circle Inspector of Police, even without verifying the fact whether petitioner no.1 is the contractor or owner of the lorries and the goods in question, has proceeded to file the FIR against him. Therefore, the learned counsel contends that the registration of the case and filing of the charge-sheet against the first petitioner is prima facie illegal and contrary to the record. Hence, the proceedings initiated against him is unsustainable in law.
It is his further contention that during the pendency of the appeal before the competent authority, the second petitioner had challenged the order of suspension of the transport licence issued to her and the said proceedings were dropped against her on coming to know that the lorries were seized by the police based on suspicion. For this reason, he contends that the proceedings against the second petitioner also is unsustainable.
5. Hence, for all these reasons, the learned counsel for the petitioners prays that the order passed by the Trial Court in C.C.No.364/2013 dated 20.6.2015 be set aside and the petitioners be discharged from the offences alleged.
6. Per contra, learned HCGP for the State contends that having regard to the material on record, the Trial Court has rightly rejected the application of the petitioners for discharge under Section 239 Cr.P.C. which order being just and proper, needs no interference in this revision petition.
7. On a careful consideration of the contentions advanced by the learned counsel for the petitioner - accused and the learned HCGP and having regard to the material on record, it is seen that the lorries were said to be parked opposite to the Jagalur APMC Yard. In the meanwhile, the respondent – police had come there and seized the lorries along with the rice bags and lodged the case in Crime No.173/2012 and proceeded to file a charge-sheet. But however, according to Clause 19 of the Karnataka Essential Commodities (PDS) Control Order 1992, it is only the Director of Food and Civil Supplies, the Joint Director of Food & Civil Supplies or the Tahsildar of the Taluk who was the authorized authority to seize the essential commodities if he is satisfied that there has been any contravention of the order. But however, in the case on hand the crime came to be registered based upon a suo motu complaint. The procedure followed in this case is opposed to law. Subsequent to registration of the case, Investigating Officer took up the case for investigation and laid the charge-sheet against the accused in C.C.No.364/2013. Mere laying of charge sheet against the accused cannot be said that strong material has been secured by the Investigating Officer during the course of investigation in order to face trial by the accused. But the first accused arraigned in C.C.No.364/2013 is not a contractor and he has nothing to do with the allegation made against him in the charge-sheet. But Accused No.2 is said to be the contractor and there is an agreement produced herein for the purpose of perusal that she was a contractor where the competent authority has issued work order. Even though the charge-sheet has been laid by the Investigating Officer in C.C.No.364/203, it cannot be said that it is a mini trial regarding the guilt of the accused. But it is the duty vested in the prosecution to prove the guilt of the accused beyond reasonable doubt. But in the peculiar circumstances of the case, I find that the impugned order passed by the Trial Court warrants interference. The application of the petitioners having been dismissed, certainly has resulted in a miscarriage of justice. Consequently, I proceed to pass the following:
ORDER This revision petition is allowed. The impugned order passed by the Trial Court in C.C.No.364/2013 dated 20.06.2015 is hereby set-aside. Consequently, the application filed by the petitioners under Section 239 Cr.P.C. is hereby allowed. Accused are discharged from the alleged offences. Consequently, the proceedings initiated against the accused stand quashed.
Sd/- JUDGE KS