Karnataka High Court
Mohammad Masood And Another vs State By Sanjayanagar Police, ... on 10 July, 2001
Equivalent citations: 2002CRILJ1381, ILR2001KAR3881, 2001(5)KARLJ399
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER
The Court
1. Though the first petition (Cri. P. No. 1782 of 2001) is filed under Section 439 of the Criminal Procedure Code, the second petition (Cri. P. No. 1768 of 2001) is under Section 438 of the Cri. P.C., since both the petitions arise from Cri. No. 273 of 2001 of Sanjayanagar Police Station though against two different sets of accused for the same offence, as the consideration would be almost the same and the arguments are common, the same are taken up together for consideration and are being disposed of by this common order.
2. As per the investigation so far carried out leading to the allegations against the petitioners appears to be as follows:
3. On 26-5-2001 at about 9.30 p.m. on the information received that white petrol (an adulterant) is being unloaded at the petrol bunk of the petitioners in the first petition called as Foujdar Petrol Bunk in Sanjayanagar area, the Inspector of Police along with his staff rushed to the place and noticed unloading of petroleum product from a tanker/lorry to the underground storage tank. It is stated that on seeing the police staff some of the persons who were there ran away and on enquiry with the remaining persona including the petitioners in the first petition who are dealer/owner and Manager of the petrol bunk respectively had revealed that they were adding an adulterant (white petrol) to the fuel petrol. The driver of the tanker, Santhosh Singh, who has been apprehended is alleged to have revealed that he has brought in all 12,000 litres of white petrol from J.K. Petro-Chemical Industries in Maharashtra State on the instructions of one Shaffi and out of the 12,000 litres, a load of 8,000 litres has already been unloaded in another petrol bunk called Trinity Circle Petrol Bunk of which the petitioner in the second petition (Cri. P, No. 1768 of 2001) is the dealer/owner and while the remaining 4,000 litres were being unloaded in the Foujdar Petrol Bunk. They have been apprehended,
4. Since these cases are of adulteration of petrol coming under the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order (hereinafter called the "Order") as well as under Sections 3 and 7 of the Essential Commodities Act (hereinafter called the "EC Act") and Section 420 of the Indian Penal Code, the case in Cri. No. 273 of 2001 came to be registered suo motu and investigation has been taken up.
5. The arrested petitioners, i.e., the petitioners in Criminal Petition No. 1782 of 2001 have sought regular bail under Section 439 of the Cri. P.C. in Cri. No. 273 of 2001 and the petitioner in Criminal Petition No. 1768 of 2001 apprehending his arrest in the same crime number has sought anticipatory bail under Section 438 of the Cri. P.C.
6. I have heard the learned Counsel for the petitioners in both the petitions and the learned Additional State Public Prosecutor for the respondent/State and perused the papers of tbe investigation so far carried out.
7. Sri C.H. Hanumantharayappa, learned Counsel for the petitioners in Criminal Petition No. 1782 of 2001 contended that the registration of the case under the 1988 Order is illegal since the 1988 Order has been replaced by the 1990 Order and presently it is the 1998 Order that holds the field. It is contended that registration of case on a non-existent statute will vitiate the entire proceedings as the procedure adopted is void ab initio. It is further contended that even if the year of the Order may not assume much importance, it is to be seen that under the 1998 Order, especially Clause 4, a Gazetted Officer of the Central or State Government or a Police Officer not below the rank of Deputy Superintendent of Police (DSP) alone has the power of search and seizure and none else. It is submitted that undisputedly the present search and seizure earned out by Inspector of Police is in contravention of the mandatory requirement and even on that count alone, as the mandatory condition of search and seizure have not been undertaken by a Police Officer authorised under the Act and the Order, the entire procedure is illegal and hence, as there is no chance of getting the accused convicted even if the entire allegations are accepted, the petitioners at this stage are entitled for bail. It is further contended that even otherwise as the offence alleged against the petitioners is punishable under the provisions of the EC Act and the punishment is not of either death or iife imprisonment and, in fact, the maximum punishment is for 7 years, the petitioners are entitled for relessing on bail.
8. Advancing the same arguments and carrying forward. Sri Nanaiah, learned Counsel for the petitioner in Criminal Petition No. 1768 of 2001, contended that the registration of the case against the petitioner is only on the basis of the alleged confession of the co-accused and there is absolutely no independent material before the Investigating Authority to link the petitioner with the crime and since there is apprehension of his arrest, he be granted anticipatory bail on the terms and conditions that this Court deem fit to ensure his co-operation during investigation and his availability for interrogation.
9. These prayers have been seriously opposed by the learned Additional State Public Prosecutor Sri Marigowda inter alia contending that the crime which the petitioners are alleged to have committed being serious in nature not only of cheating the consumers but also adding pollution of atmosphere causing health hazards to the people and also causing damage to the vehicles, the petitioners should not be released on bail either regular or anticipatory, especially at the stage, when the investigation is yet incomplete and in view of the fact that some of the accused are still absconding and more material evidence is to be collected and the details of the role of these accused as well as the other accused have to be unearthed by the police, he prayed for dismissal of these petitions.
10. On considering the arguments advanced on both sides and perusal of the investigation so far carried out, it is to be noted that the petitioners in Criminal Petition No. 1782 of 2001 were apprehended while they were actually present in the petrol bunk at the time when the alleged white petrol was being unloaded from the tanker to the underground storage tank in the bunk. As stated earlier, petitioner 1 in the first petition is the dealer/owner of the petrol bunk and petitioner 2 is the Manager of the said petrol bunk.
11. Before considering the relevant arguments, it is to be noted that white petrol is a petroleum product, but is not used in the petrol driven vehicles as a fuel. It cannot be disputed that, as per the scientific data available, it is a solvent, compound of Hexane and Pentane, basically used in Paint Industries as well as Dry Cleaning Industries. This solvent is euphemirically called 'white petrol'. The price of this solvent (white petrol) in the market is around Rs. 10/- per litre, but the petrol used as a fuel in automobile is around Rs. 30/- per litre. As such, prima facie, mixing such solvent (white petrol) with the fuel petrol is definitely an adulteration as defined under the EC Act and the order. Of course, what was unloaded from the tanker was white petrol or not has to be established by the Investigating Agency and that would be possible only after securing the Chemical Analysis Report and in this regard one of the arguments of the learned Additional State Public Prosecutor is that, as the said report is yet to be received and since the investigation is incomplete, the petitioners should not be released on bail. Be that as it may, but as now prima facie material collected by the Investigating Agency reveals that it was the white petrol which was being unloaded to the underground storage tank of the petitioners' petrol bunks in the presence of the petitioners, who are the main persons concerned for limning the petrol bunks, that would be prima facie case to indicate their role in the adulteration of this material.
12. The basic question as mainly contended by the learned Counsel for the petitioners is whether the trial is vitiated due to the alleged illegal or unauthorised procedure of search and seizure carried out and whether on that ground the petitioners are entitled for bail. In an almost similar situation, though under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 the Constitution Bench of the Apex Court in the case of State of Punjab v Baldev Singh, has observed thus:
"The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial".
Further, in the same pronouncement it is laid down thus:
"Failure to comply with the provisions of Cri. P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se would not vitiate the prosecution case. If there is such a violation, what the Courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view (. . .). The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it may render his conviction and sentence unsustainable".
13. It is to be borne in mind that at the earliest stage this Court is considering only the aspect as to whether the petitioners are to be released on bail or not. For this, the consideration would be whether there is a prima facie case made out against the petitioners and not whether the accused would be convicted or not on the material available. This is a major difference for looking at the investigation material at the stage of consideration of grant of bail or at the final stage after the trial is over. The various pronouncements relied upon by the petitioners regarding vitiation of the trial due to the technical defect like non-compliance with the mandatory requirements are all relevant at the stage when the Courts are required to consider whether conviction is sustainabte or not and not at the initial stage itself. Incidentally, it may be observed that, even if such argument is available to the petitioners, it cannot be raised in a petition under Section 438 or 439 of the Cri. P.C., but it can be made even as a ground for quashing the proceedings and not otherwise. As such in my view the question whether there was vitiation of the entire proceedings for non-compliance of the mandatory requirement need not be gone into by the Court at this stage of considering bail petition, aa the same would be required to be considered at a much later stage.
14. In this regard, it is to be noted that the present petitions are under Sections 439 and 438 respectively, when still the investigation is not yet complete. Some of the accused are alleged to be still absconding and material report like the chemical analysis report, etc. has to be secured by the Investigating Agency.
15. It is well-settled that at the stage of consideration of bail what the Court is normally required to consider are: (1) the nature and seriousness of the accusation; (2) severity of the offences; (3) nature of the evidence collected and the character and behaviour of the accused; (4) chances of the accused absconding and not being available during the trial; (5) possibility of repetition of such crime; (6) chances of the accused of tampering with the evidence and witnesses and last but not the least larger interest of the people of the State.
16. Keeping in view the well-settled principle and the dicta/guidelines of the Hon'ble Supreme Court in various pronouncements, in my view, the Court need not go into the technical aspect. Suffice to say at this stage that the nature of the offence being adulteration of fuel petrol with fuel petrol the prices of which are at variance and such adulteration not only results in selling cheaper product to the consumer at higher price but also more serious fact is that by the use of such adulterated fuel exhaust smoke left out of the vehicle will pollute the entire atmosphere and environment resulting in health hazards. In the cities like the Metropolitan City of Bangalore where there are the largest number of petrol driven vehicles on the road, contribution of polluting the air by such adulterated fuel is more. In the recent survey on pollution in the City of Bangalore it is established statistically that pollution level has gone very high and practically new generation of diseases due to pollution have taken birth. Keeping, in view the large number of vehicles plying in the city and around and the problems if such adulteration goes on it would be a major contributory factor causing pollution as well as health hazards and requires proper and prompt action.
17. Taking into consideration all these aspects, at this stage, without adverting in detail to the investigation so far carried out, in my view, the petitioners in the first petition are not entitled for releasing them on bail.
18. Insofar as the petitioner in Criminal Petition No. 1768 of 2001 is concerned, though the petition is under Section 438 of the Cri. P.C. apprehending arrest, it is to be noted that the scope and jurisdiction under this provision is different from the one under Section 439 of the Cri. P.C. Considering the allegations against these petitioners in the light of the pronouncement of the Apex Court in the case of Gurbaksh Singh Sibbia v State of Punjab, regarding the consideration which should weigh with the Court for enlarging an accused on anticipatory bail as in my view, for the reasons stated earlier, this is not a fit case to enlarge the petitioner on anticipatory bail especially when investigation is not complete.
19. Taking into consideration all these aspects, viz., there is a prima facie case made out in both the petitions, the serious nature of crime affecting not only the consumer, but also the economy of the State and the offence being of the nature of causing pollution of atmosphere and health hazards to the citizen in my view these are not fit cases to enlarge the petitioners on bail.
20. It is also to be noted that even though the offence alleged to have been committed by the petitioners is punishable under the provisions of the EC Act and the maximum sentence under Sections 3 and 7 of the EC Act is of 7 years' imprisonment, taking into consideration the grievous-ness of the crime and the universal result of health hazards arising from the adulteration, the Legislature in its wisdom has created Special Court for trying the offence under the EC Act. Even while considering the delays in trial and while laying down the guidelines in the case of Kritikant Vadodaria v State and "Common Cause" a Registered Society through its Director v Union of India, judgments as well as in the Raj Deo Sharma v State of Bihar , the Apex Court has observed that the offences under the EC Act and the Narcotic Drugs and Psychotropic Substance Act and the Prevention of Corruption Act are to be kept out of the purview of consideration for bail even on the ground of long pendency of the case. As such it is clear that even though the quantum of punishment is less than in the case of other crimes like under Section 302 of the IPC, the punishment alone is not the criteria as to whether a person is to be released on bail or not.
21. Looking at the facts and circumstances of the case from any angle in my view the present petitions are devoid of merits and as such the same are liable to be rejected. However, it is made clear that observations made herein are only for the purpose of assessing material for the purpose of consideration of bail application and the same shall not be construed as final observations on merits of the case.
22. Accordingly, these petitions are dismissed.