Karnataka High Court
Chamundi Roller Flour Mills vs State Of Karnataka And Ors. on 28 July, 2004
Equivalent citations: ILR2004KAR4544, 2004(5)KARLJ388, 2004 AIR - KANT. H. C. R. 2659, (2004) 5 KANT LJ 388
Author: K.L. Manjunath
Bench: K.L. Manjunath
ORDER K.L. Manjunath, J.
1. Though the matter is listed for orders, by consent, the writ petition is heard on merits.
2. The petitioner is a miller carrying on the business of production of Maida, Sooji, Atta, etc., since 1973. On 21-5-2004 the respondents 3 and 4 along with their officials intercepted the godown of the petitioner and seized the wheat available in the godown by drawing two mahazars. In addition to the seizure of wheat available in the godown, the wheat available in 7 lorries which were parked within the premises of the petitioner's mill was also seized. On 28-5-2004 a show-cause notice was issued to the petitioner calling upon him to show cause why the wheat seized by the respondents 3 and 4 under two mahazars dated 21-5-2004 should not be confiscated under the provisions of the Essential Commodities Act, 1955. The petitioner sent a detail reply to the said show-cause notice. Thereafter, the petitioner filed a writ petition before this Court in W.P. No. 21840 of 2004 challenging the show-cause notices issued by the respondents on the ground that the respondents have no jurisdiction to initiate the proceedings under the Essential Commodities Act. This Court allowed the writ petition and directed the Deputy Commissioner, Bangalore, to consider the reply of the petitioner on merits within two days. In regard to the jurisdiction of the respondents in initiating the proceedings again an order was passed on 17-6-2004. The said order was called in question before this Court in the present W.P. No. 24688 of 2004. On 23rd June, 2004 this Court disposed of the writ petition directing the respondents to complete the investigation and the enquiry on or before 15th July, 2004 and thereby permitting the respondents to distribute the wheat contained in 7 lorries under Public Distribution System subject to the respondents making good the value to the petitioner in the event of the petitioner succeeding in the case.
3. On 2nd July, 2004, the Deputy Commissioner, Bangalore District, has passed an order by holding that the proceedings initiated under Section 6-A of the Essential Commodities Act, 1955 by him as maintainable. The said order is produced as Annexure-L to the writ petition.
4. Challenging the correctness and legality of order passed by the Deputy Commissioner, Bangalore, as per Annexure-L to the writ petition, the present petition is filed.
5. According to the petitioner, the 2nd respondent has no jurisdiction to initiate proceedings under Section 6-A of the Essential Commodities Act, 1955 as there is no violation of Clause 18 of the Food Control Order and the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and that the seizure of the stock in the godown of the petitioner under the mahazars dated 21-5-2004 by the Madiwala Police as one without jurisdiction. The petitioner also contends that in view of the Public Distribution System (Control) Order, 2001, the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 has no application and therefore on these two grounds, he requests this Court to set aside the order passed by the 2nd respondent as per Annexure-L to the writ petition.
6. Sri Satish M. Doddamani, Additional Government Advocate appearing for the respondents submits that the proceedings initiated under the provisions of Section 6-A of the Essential Commodities Act, 1955 as maintainable in view of violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. According to him, even though the Public Distribution System (Control) Order, 2001 has come into effect, in view of the provisions of Sub-section (2) of Section 16 of the Essential Commodities Act, the proceedings initiated by the Madiwal Police before the 2nd respondent was maintainable and therefore he requests this Court to dismiss the writ petition.
7. Having heard the Counsels for the parties, the following points will emerge for consideration of this Court in this writ petition:
(a) Whether the 2nd respondent would get jurisdiction to initiate proceedings under the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 in view of the Public Distribution System (Control) Order, 2001?
(b) If so, whether the petitioner has violated Clause 18 of the Essential Commodities (Public Distribution System) Control Order, 1992?
(c) If there is no violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, whether the Act of the Madiwala Police in requesting the 2nd respondent to initiate action under Section 6 of the Essential Commodities Act, can be held to be justified?
8. As pointed out earlier, Sri C.V. Nagesh appearing for the petitioner as raised two points. According to him, in view of the Public Distribution System (Control) Order, 2001, the proceedings initiated under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 was not maintainable. Alternatively, he pleads that since the petitioner has not violated any of the provisions of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, even if the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 is held to be in force, the respondent 2 cannot initiate action under Section 6-A of the Essential Commodities Act, 1955.
9. In this background, this Court is of the opinion that this Court has to first examine whether there is any violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and if there is no violation of Clause 18 of the Karnataka. Essential Commodities (Public Distribution System) Control Order, 1992, this Court has to give its findings on the question of jurisdiction of the 2nd respondent to initiate proceedings under. Section 6-A of the Essential Commodities Act in view of Public Distribution System (Control) Order, 2001. In this background, this Court has to examine whether there is 'violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 reads as hereunder:
"18. Prohibition of unauthorised sale of foodgrains and essential commodities issued through Public Distribution System.--(a) No person other than the authorised dealer shall purchase or sell or store or offer for sale of foodgrains in any quantity of foodgrains or essential commodities issued to the authorised dealer for distribution under Public Distribution System".
10. For the purpose of this case, this Court has to examine whether there is violation of Sub-clause (a) of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. If the Madiwala Police has to initiate proceedings against the petitioner for violation of Sub-clause (a) of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, the Police has to establish that the petitioner herein was in possession of the wheat which was issued to an authorised dealer for distribution under Public Distribution System. Therefore, it is incumbent upon the Police to show that petitioner had come into possession of the wheat from an authorised dealer who was in possession of the same for distribution under Public Distribution System.
11. The respondents in order to prove that the petitioner has violated Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 have relied upon the F.I.R. registered on 22-5-2004 which is produced as Annexure-D to the writ petition and they have also relied upon the mahazar drawn on 21-5-2004 which was drawn at the time of seizure in the godown of the petitioner. Therefore, this Court has to examine the F.I.R. as well as the mahazar produced as Annexure-D to the writ petition to find out whether there is any prima facie material to show the violation of Sub-clause (a) of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. If there is any material against the petitioner to show that there is a violation of Clause 18 of the Order, then this Court has to hold that the proceedings initiated by the Police before the 2nd respondent was maintainable subject to the applicability of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992.
12. In the F.I.R., it is only stated that original complaint copy is enclosed along with the F.I.R. The copy of the complaint is not made available to this Court. According to the Government Pleader there is no separate complaint and the mahazars drawn on 21-5-2004 is the only document to support the case of the Police. Then this Court has to look into the mahazar to find out whether there are any allegation of violation of Sub-clause (a) of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 by the petitioner in the mahazar. Annexure-B1 is the copy of the mahazar drawn on 21-5-2004. From the perusal of this mahazar it cannot be said that there is a violation of Sub-clause (a) of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. According to the mahazar, the petitioner had possessed the wheat in excess of the quantity mentioned in the stock register. If there is an excess stock in the premises contrary to the stock register maintained by the petitioner, it cannot be stated that there is a violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. There is no prohibition for the petitioner to procure wheat of any quantity from private sources. But the petitioner is not expected to purchase or procure wheat from authorised dealer under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. If the petitioner has failed to maintain the stock register properly, it cannot be held that there is violation of Clause 18 of the Control Order. It is unfortunate that either the F.I.R. or the mahazar attached to that, does not disclose any violation of Clause 18 of the Order. Without there being any iota of material alleged against the petitioner by the Police either in the mahazar or in the F.I.R., Deputy Commissioner has proceeded to pass an order under Section 6-A of the Essential Commodities Act. Therefore, the whole procedure followed by the Police as well as by the Deputy Commissioner has to be held to be bad in law. In the circumstances, this Court cannot accept the arguments put forth by the Government Advocate.
13. Therefore, Annexure-L has to be set aside only on the ground that there is no violation of Clause 18 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and that the proceedings initiated by the Police before the 2nd respondent as not maintainable.
14. In view of the findings on this point, this Court is of the opinion that there is no necessity for the Court to give its findings on the question of the initiation of proceedings under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 in view of the Public Distribution System (Control) Order, 2001.
15. Accordingly, the writ petition is allowed. The order passed by the 2nd respondent on 2nd July, 2004 as per Annexure-L is hereby quashed.