Bangalore District Court
I. Rahim, Pi vs Mohamemd Mujash Alias Choudhari on 6 November, 2024
KABC030017842022
Presented on : 07-01-2022
Registered on : 07-01-2022
Decided on : 06-11-2024
Duration : 2 years, 9 months, 30 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 06th Day of November, 2024
C.C. No.654/2022
State by R.T. Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath Senior APP)
Versus
Mohammad Mujash (a) Choudhari,
Aged about 62 years,
S/o Sri Abdul Lathif,
R/at No.105/2, 4th Cross,
Seethappa Layout, Behind Shalini Bar,
Chamundinagara,
R.T.Nagara, Bengaluru. ... Accused
(Represented By Sri. Mahiboob Makshi Advocate)
KABC030017842022 CC 654/2022
1. Date of commission of : 23-09-021
offence
2. Name of the : Sri I. Raheem, PI, CCB.
Complainant
: Section 285, 420 of
3. Offences complained of IPC, Sec. 7, 3(1)(a), 3(B)
(C), 4(1)(A), 6 of Gas
Supply Act 2000 and
Sec.3, 7(1)(a)(i) of
Essential Commodities
Act
4. Charge : Pleaded not guilty
5. Final order : Accused is acquitted
6. Date of order : 06-11-2024
JUDGMENT
The Police Sub-Inspector of R.T.Nagara Police Station submitted charge sheet against accused for the offences punishable under Section 285, 420 of IPC, Sec. 7, 3(1)(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act 2000 and Sec.3, 7(1)(a)(i) of Essential Commodities Act.
2 KABC030017842022 CC 654/20222. Prosecution Case: On 23-09-2021 at about 7.00 p.m. the CW1 Sri I.Raheem, PSI, CCB, Special Enquiry Squad, received a credible information and conducted raid along with CW4 and CW6 in the presence of CW2 and CW3 panchas and found that the accused being the owner of sheet house situated adjacent to Star Engineering Works, 3rd Main Road, behind Shalini Bar, Seethappa Layout, R.T.Nagar, Bengaluru, within the limits of R.T.Nagara Police Station, without obtaining license possessed gas cylinders of various companies unauthorisedly and was refilling to small gas cylinders without adhering to safety measures with an intention to make wrongful gain and thereby cheated the Government as well as customers.
3. First Information Report: Upon the receipt of credible information, CW1 / PW3 raided the sheet house of accused and seized the properties in the presence of panchas by drawing the spot cum seizure mahazar as per Ex.P3 and prepared the complaint on the spot as per Ex.P1 produced the same before CW8/PW2.
4. Investigation: During the course of investigation, on receipt of complaint/report as per Ex.P1 from CW1/PW3, he proceeded with the investigation, recorded the statement of witnesses and handed over the seized gas cylinder to Food 3 KABC030017842022 CC 654/2022 Department and submitted the charge sheet against accused for the alleged offences.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
6. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused.
7. The accused was released on bail by the order dated 20-09-2022.
8. Charge: After hearing learned APP and counsel for accused, charge for the offences punishable under Section 285, 420 of Indian Penal Code, Sec. 7, 3(1)(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act 2000 and Sec.3, 7(1)(a)(i) of Essential Commodities Act has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 8 witnesses examined 3 witnesses and exhibited 3 documents and closed their side. The examination of CW4, CW5 and CW7 were given up by the order dated 04-10-2023 at the 4 KABC030017842022 CC 654/2022 request of Sr.APP. The examination of CW2 and CW3 being pancha witnesses were dispensed with as the CW1 did not have authority to raid the sheet house of the accused by the order dated 06/11/2024 however no particulars of pancha witnesses mentioned in the seizure mahazar and in the charge sheet.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 23-09-2021 at about 7.00 p.m., in the sheet house, situated adjacent Star Engineering Works, 3rd Main Road, behind Shalini Bar, Seethappa Layout within the limits of R.T.Nagara Police 5 KABC030017842022 CC 654/2022 Station, the accused without obtaining license possessed gas cylinders of various companies and was refilling to small gas cylinders without adhering to safety measures thereby resulted in commission of an offence punishable U/sec.285 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on above said date, time and place, the accused without obtaining license possessed gas cylinders of various companies unauthorisedly and was refilling to small gas cylinders with an intention to make wrongful gain thereby cheated government and customer thereby resulted in commission of the offence punishable U/sec.420 of IPC?
3. Whether the prosecution proved beyond all reasonable doubt that on above said date, time and place, the accused without obtaining license 6 KABC030017842022 CC 654/2022 possessed gas cylinders of various companies unauthorisedly and was refilling to small gas cylinders without adhering to safety measures with an intention to make wrongful gain thereby resulted in commission of the offences under Section 7, 3(1)
(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act 2000, Sec.3, 7(1)(a)
(i) of Essential Commodities Act?
4. What order?
13. The court's findings on the above points are as under:
Point No.1-3 : In the Negative Point No.4 : As per final order REASONS
14. Point No.1 to 3: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the 7 KABC030017842022 CC 654/2022 prosecution has examined the witnesses, which are as follows i. CW6 Sri Subhash Chanra S.Pattan, the PSI of R.T.Nagara PS, examined as PW1 deposed that he on the receipt of credible information that accused without obtaining a valid license possessed gas cylinders of various companies unauthorisedly at his sheet house, situated beside Star Engineering Works, 3rd Main Road, behind Shalini Bar, Seethappa Layout and was refilling to small commercial gas cylinders without adhering to safety measures with an intention to sell to public to make wrongful gain and cheating government as well as customers, he along with CW4 and CW6, panchas CW2 and CW3 went to the spot and conducted mahazar, seized the properties and prepared report and handed over to CW8/PW3 for further action as per law.
ii. CW8 Sri Veerabhdrappa.C., the then PSI of R.T.Nagara Police station examined as PW2 deposed about registration of FIR as per Ex.P2 on the basis of complaint as per Ex.P1, recorded statement of witnesses, were subjected to PF No. 100/2021 handed over the seized cylinders to Department of Food and Civil Supplies and submitted charge sheet against accused.
iii. CW1 Sri I.Raheem, the then PI, CCB, Special Enquiry Squad, examined as PW3 who 8 KABC030017842022 CC 654/2022 accompanied with PW1 has reiterated the version of CW6/PW1. Further he deposed that, in the said sheet house, it was found that Indian and Bharat Gas Company's household cylinders were being refilled to commercial cylinders and sold to the public at a high price and cheated the public. He seized 4 full cylinders and 2 empty cylinders of Bharat Gas Company, 8 full cylinders and 5 empty cylinders of Indian Company 1 full cylinder and 1 empty cylinder of HP Company, 2 full cylinders of Total Gas Company, 3 empty cylinders of Jyoti Company, 44 empty cylinders of 5 kg, 14 empty cylinders of 3 kg, one weighing machine, one gas filling motor pipes under the Ex.P3 panchanama and the produced the accused with seized properties before R.T.Nagara PS and lodged complaint as per Ex.P1. He identified his signatures as per Ex.P1(b) and (3)a.
15. A question arises whether the PW3, Police Inspector, CCB, has a power to enter the sheet house, situated beside Star Engineering Works, 3 rd Main Road, behind Shalini Bar, Seethappa Layout within the limits of R.T.Nagara Police Station. In this reference, it is relevant to mention Section 13 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution), 2000 which reads as under
13. Power of entry , search and seizure: (1) Any Officer of the Central or the State Government 9 KABC030017842022 CC 654/2022 not below the rank of Inspector duly authorized by a general or a special order, by the Central Government or the State Government , as the case may be or any officer of a Government Oil Company not below the rank of Sales Officer , authorized by the Central Government , may , with a view to securing due compliance of this order or any other order made thereunder;
(a) Stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product,
(b) enter and search any place,
(c) seize stocks of liquefied petroleum gas along with container and /or equipment , such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been , or is being, or is about to be made.
(2) The sales officer of a Government Oil Company shall be authorized to secure compliance of this order by the 10 KABC030017842022 CC 654/2022 distributors appointed under the public distribution system and or by the consumer registered by them.
Coupled with NOTIFICATION issued in G.O.Ms.No.295, C, F & CP Department dated 15.12.2000 under sub-clause (1) of clause 13 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 authorizing the following Officers for the purpose of the said clause are as under (1) All Officers of Civil Supplies and Consumer Protection Department not below the rank of Assistant Commissioner of Civil Supplies including the Assistant Commissioner (Inspection) of Civil Supplies.
(2) All Officer of Revenue Department not below the rank of Taluk Tahsildar within this respective jurisdiction.
(3) All Taluk Supply Officer in the rank of Tahsildar within their respective jurisdiction.
(4) All District Supply Officers within their respective jurisdiction (5) All Officer of the Police department including Civil 11 KABC030017842022 CC 654/2022 Supplies (CID) not below the rank of Inspector of Police (6) All Officers of the Labour Department not below the rank of Deputy Inspector of Labour.
Thus, it prescribes that a Police Inspector can take action. No doubt, the aforesaid Clause along with notification provides that in addition to the specified officers, the persons authorized by the Central or State Government may take action under the Order.
16. It is relevant to mention Section 10A of Essential Commodities Act 1955 which reads as under 10A. Offences to be cognizable.―Notwithstanding anything contained in 2 [the Code of Criminal Procedure, 1973 (2 of 1974)] every offence punishable under this Act shall be "cognizable 3 ***].
and further appears from Ex.P1 -spot cum seizure mahazar under which gas cylinders have been seized by the CW1/PW3 PI by stating that the accused was in the possession of gas cylinders without any license on 23-09-2021 at 7.00 pm 12 KABC030017842022 CC 654/2022 however FIR was registered on 23-09-2021 at 20.40 - 22.00 pm i.e., after the seizure (after investigation started).
17. In this regard, it is relevant to rely upon Sections 154 and 157 of Cr.P.C which reads as under
"154. Information in cognizable cases.--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: [Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, 13 KABC030017842022 CC 654/2022 section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that-- (a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of 14 KABC030017842022 CC 654/2022 such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such
information shall be video
graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an 15 KABC030017842022 CC 654/2022 investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
157. Procedure for investigation.
--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
16 KABC030017842022 CC 654/2022Provided that-- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. [Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police 17 KABC030017842022 CC 654/2022 station shall state in his report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
Thus, it is clear from above provisions that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be carried out. Thus, it is clear that PW3 proceeded with investigation without registration of FIR which is unsustainable in law and the said principle is appreciated in the case of SRI DAYANANDA @ R. BABU VS STATE OF KARNATAKA REPORTED IN LAWS(KAR) 2024 - 4- 16 particularly he has power to enter the premises of accused for search and seizure.
18 KABC030017842022 CC 654/202218. PW2 in his cross examination has deposed that:
ಆರೋಪಿತರು ಸಿಲಿಂಡರ್ ಅವ್ಯವಹಾರಗಳನ್ನು ಮಾಡುತ್ತಿದ್ದಾರೆ ಎಂದು ಸಾರ್ವಜನಿಕರಿಂದ ಯಾವುದೇ ಮಾಹಿತಿ ಬಂದಿರುವುದಿಲ್ಲ. ನಾನು ಮತ್ತು ನಮ್ಮ ಸಿಂಬದ್ದಿಯವರು ನಮ್ಮ ವ್ಯಾಪ್ತಿಯಲ್ಲಿ ಬರುವ ಸ್ಥಳದಲ್ಲಿ ಗಸ್ತು ಮಾಡುತ್ತಿದ್ದೆವು ಎಂದರೆ ಸರಿ. ನಾವು ಗಸ್ತು ಮಾಡುತ್ತಿರುವಾಗ ಆರೋಪಿತರು ಸಿಲೆಂಡರ್ ಅವ್ಯವಹಾರಗಳನ್ನು ಮಾಡುತ್ತಿರುವ ಬಗ್ಗೆ ಮಾಹಿತಿ ಬಂದಿರುವುದಿಲ್ಲ. ದೂರು ಪ್ರಕಾರ ಕೃತ್ಯ ನಡೆದ ಸ್ಥಳ ಶಾಲಿನಿ ಬಾರ್ ಹಿಂಭಾಗ ಇರುವ ಶೆಡ್ ಎಂದರೆ ಸರಿ. ಅಲ್ಲಿ ಸಾವರ್ಜನಿಕರು ಓಡಾಡುವ ಪ್ರದೇಶ ಮತ್ತು ಅಕ್ಕ ಪಕ್ಕದ ಜನರು ಅಲ್ಲಿ ವಾಸ ಮಾಡುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. ಈ ಕೇಸಿನ ಬಗ್ಗೆ ಅಕ್ಕಪಕ್ಕದ ಅಥವಾ ಸರ್ವಾಜನಿಕರ ಹೇಳಿಕೆಯನ್ನು ಪಡಿದಿರುವುದಿಲ್ಲ.
Thus, it is clear that there was no complaint from public and such being the case, how the PW3 could have suspected that the accused is indulged in selling of gas cylinders illegally to make wrongful gain.19 KABC030017842022 CC 654/2022
19. It is relevant to mention Section 100(4) of Criminal procedure Code mandates (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
As per Section 100 of Cr.P.C., the police authority has to make an attempt to call for independent and respectable inhabitants of locality in which the place to be searched is situated. The alleged spot surrounded with residential house and shops and the same is depicted from the Ex. P. 1 as under ಚೆಕ್ಕುಬಂದಿ:
ಪೂರ್ವಕ್ಕೆ : ವಾಸದ ಮನೆ ಪಕ್ಶಮೆಕ್ಕೆ : ೩ನೇ ಮುಖ್ಯ ರಸ್ತೆ ಉತ್ತರಕ್ಕೆ ಮುರುಳಿ ಎಂಬುವವರ ವಾಸದ ಮನೆ ದಕ್ಷಿಣಕ್ಕೆ ಸ್ಟಾರ್ ಇಂಜಿನಿಯರಿಂಗ್ ವರ್ಕ್ಸ್ 20 KABC030017842022 CC 654/2022 At the time of raid, there were residential house and shops around the alleged spot but the PW3 (IO) did not make any attempt to obtain their statement and PW1 did not take any attempt to secure full particulars of CW2 and CW3 excepting mentioning the name of two persons and then how this court secure their presence to prove authenticity. Such being the case, this court cannot give any credence to the Ex. P. 1 (seizure cum spot mahazar). Only if the witness around spot is not willing to be a witness, then, the police officer could have taken the witnesses as near as possible witnesses but they have taken the CW2 and CW3 without any full particulars. In this context, it is relevant to mention the decision in the case of Pradeep Narayana Vs State of Maharastra reported in AIR 1995 Supreme Court 1930 wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
20. PW3 has not taken any photographs or video graphed at the time of seizure as per Ex.P1.
21. PW1 has not investigated about the source of cylinders for having illegally supplied cylinders and for refilling of gas.
21 KABC030017842022 CC 654/202222. The learned counsel for the accused has cross examined the PW2 wherein he deposed that ಆರೋಪಿತರು ಇದ್ದ ಶೆಡ್ಡಿನ ಮಾಲೀಕರು ಹೇಳಿಕೆ ಅಥವಾ ಆರೋಪಿತರು ಬಾಡಿಗೆಗೆ ಇದ್ದ ಕರಾರುಪತ್ರವನ್ನು ನಾವು ತನಿಖೆ ಸಮಯದಲ್ಲಿ ಸ್ವೀಕರಿಸಿರುವುದಿಲ್ಲ.
Thus, it is clear that prosecution through PW1 has not produced any document to prove that the accused is connected with the said sheet house situated adjacent to Star Engineering Works, 3rd Main Road, behind Shalini Bar, Seethappa Layout, R.T.Nagar, Bengaluru either as an owner or tenant.
23. Thus, as discussed above by taking into account factual deficiencies in the case made out by the prosecution, the accused is entitled for benefit of doubt by an order of acquittal thereby the point No. 1 to 3 is answered in negative.
24. Point No.4:- For the foregoing discussion and the findings to the above point No.1 to 3, this court proceeds to pass the following:
22 KABC030017842022 CC 654/2022ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 285, 420 of IPC, Sec.7, 3(1)(a), 3(B)(C), 6, 4(1)(A) of Gas Supply Act 2000 and Sec.3, 7(1)
(a)(i) of Essential Commodities Act, 1955.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 06th day of November, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
23 KABC030017842022 CC 654/2022ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Subashchanra S Pattan PW2 : Sri Veerabhadrappa PW3 : Sri I.Raheem Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : FIR Ex.P3 : Seizure mahazar
Material Objects marked on behalf of the prosecution: Nil Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.24 KABC030017842022 CC 654/2022
06-11-2024 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 285, 420 of IPC, Sec.7, 3(1)(a), 3(B)(C), 6, 4(1)(A) of Gas Supply Act 2000 and Sec.3, 7(1)(a)(i) of Essential Commodities Act, 1955.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
VIII ACJM, B'luru City.
25