Bangalore District Court
R T Nagar Police Station vs Abdul Wajid on 2 September, 2024
KABC030127222020
Presented on : 18-02-2020
Registered on : 18-02-2020
Decided on : 02-09-2024
Duration : 4 years, 6 months, 13 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 02nd Day of September, 2024
C.C. No.29941/2022
State by R.T. Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath Senior APP)
Versus
1. Sri Abdul Wajid
Aged about 42 years,
S/o Sri Abdul Majid,
R/at No.24, Dinnur
Main Road, R.T.Nagara,
Bengaluru.
2. Sri Ayub Azar
Aged about 30 years,
KABC030127222020 CC 29941/2022
S/o Sri Akram Pasha,
R/at No.220, 6th Cross,
Balavatha Village,
Rajendra Nag, Kesare,
Mysuru City ... Accused
(A1 Represented By Sri A.Akram Pahsha, Advocate)
(A2 Represented By Sri K.Srinivas, Advocate)
1. Date of commission of 10-05-2022
offence :
2. Name of Sri Subash Chandara Pattana,
Complainant : PSI
3. Offences complained of : Section 7, 3(1)(a), 3(B)(C), 4(1)(A
6 of Gas Supply Act (LPC A
Regulation and Supp
Distribution Order 2000), 193
Sec.7(1)(a)(i), 3 of Essenti
Commodities Act and Sec.285
IPC.
4. Charge Pleaded not guilty
5. Final Order Accused No.1 and 2 are not
found guilty
6. Date of order 02-09-2024
JUDGMENT
2
KABC030127222020 CC 29941/2022
The Police Inspector of R.T.Nagara Police Station submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 7, 3(1)(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act (LPC Act Regulation and Supply Distribution Order 2000), 1939, Sec.7(1)(a)(i), 3 of Essential Commodities Act and Sec.285 of IPC.
2. Prosecution Case: On 10-05-2022 at about 6.30 p.m. the CW1 Sri Subash Chandara Pattan, PSI of R.T.Nagara PS received credible information and conducted raid along with CW4 to CW7 in the presence of CW2 and CW3 panchas and found that the accused No.1 being the owner of the shop No.24, M/s Judge A.M. Enterprises situated at Dinnuar Main Road within the limits of R.T.Nagara Police Station, along with accused No.2 with common intention 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.
3. First Information Report: Upon the receipt of credible information, CW1 / PW1, PSI of R.T.Nagara Police Station, Bangalore, raided the shop of accused persons and seized the properties in the presence of panchas by drawing the spot cum seizure mahazar as per Ex.P1 and prepared the complaint on 3 KABC030127222020 CC 29941/2022 the spot as per Ex.P1 produced the same before CW9/PW6.
4. Investigation: During the course of investigation, as per direction of CW9, CW1 proceeded with the investigation, recorded the statement of witnesses and collected the documents as per Ex.P5 and submitted the charge sheet against accused persons for the alleged offences.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused No. 1 and 2.
6. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused No. 1 and 2.
7. The accused No. 1 and 2 were released on bail by the order dated 12/06/2023 and 13/05/2022 respectively.
8. Charge: After hearing learned APP and counsel for accused No. 1 and 2, charge for the offences punishable under Section 7, 3(1)(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act (LPC Act Regulation and 4 KABC030127222020 CC 29941/2022 Supply Distribution Order 2000), 1939, Sec.7(1)(a)(i), 3 of Essential Commodities Act and Sec.285 read with 34 of Indian Penal Code has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 9 witnesses, examined 6 witnesses and exhibited 7 documents and closed their side. The examination of CW5 to CW7 were given up by the order dated 13/10/2023 at the request of APP as the CW4 was examined.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No. 1 and 2 was examined as per section 313 statement of Cr.P.C, wherein they 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;
5 KABC030127222020 CC 29941/20221. Whether the prosecution proved beyond all reasonable doubt that on 10-05-2022 at about 6.30 p.m. at shop No.24, M/s Judge A.M. Enterprises situated at Dinnuar Main Road within the limits of R.T.Nagara Police Station, the accused No.1 and 2 with common intention 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 read with 34 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on above said date, time and place, the accused No.1 and 2 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 thereby 6 KABC030127222020 CC 29941/2022 resulted in commission of the offences under Section 7, 3(1)
(a), 3(B)(C), 4(1)(A), 6 of Gas Supply Act (LPC Act Regulation and Supply Distribution Order 2000), 1939, Sec.7(1)(a)(i), 3 of Essential Commodities Act?
3. What order?
13. The court's findings on the above points are as under:
Point No.1-2 : In the Negative Point No.3 : As per final order REASONS
14. Point No.1 & 2: 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 prosecution has examined the witnesses, which are as follows i. CW2 Sri Mohammad Imran and CW3 Sri Mohammed Athik Ulla, pancha witnesses examined as PW1 and PW2 who have identified their signatures 7 KABC030127222020 CC 29941/2022 on Ex.P1 as Ex.P1(a), 1(b) respectively and deposed that police obtained their signatures on Ex.P1 in police station however pleaded ignorance about the contents of the Ex. P. 1-spot cum seizure mahazar. The police have not conducted any mahazar and seized any property in their presence. They denied the statements given before the police. Therefore, the learned Sr. APP by treating PW1 and PW2 as hostile witnesses and cross-examined them however no favourable answers has been elicited from their mouth to support the prosecution case. The denial of statement given by PW1 and PW2 before police is marked as Ex.P2 and 3 respectively.
ii. CW1 Sri Subhash Chanra S.Pattan, the PSI of R.T.Nagara PS, examined as PW3 deposed that he on the receipt of credible information that accused persons without obtaining a valid license possessed gas cylinders of various companies unauthorisedly at their shop NO.24, ZAM enterprises and was refilling to small gas cylinders without adhering to safety measures with an intention to sell to public to make wrongful gain, he along with CW4 to CW7, panchas CW2 and CW3 went to the spot and conducted mahazar, seized the properties and lodged the complaint to CW9/PW6 as Ex.P1. Further, he recorded the statement of witnesses and collected the documents and submitted charge sheet to court. He identified the complaint as per Ex.P3, bill as per Ex.P4 and letter dated 31-05-2022 as per Ex.P5 and his signatures thereon as per Ex.P1(c), 3(a), 4(a).
8 KABC030127222020 CC 29941/2022iii. CW4 Sri Kemparaju, the then HC of R.T.Nagara Police station examined as PW4 who accompanied with CW1 has reiterated the version of CW1/PW3. He identified his signature on Ex.P1 as per Ex.P1(d).
iv. CW8 Sri R.Manjuanth examined as PW5 deposed that he know the accused persons however pleaded ignorance about the case and he denied the statement given before the police. Therefore the learned Sr.APP by treating PW5 as hostile witness and cross-examined him however no favorable answers has been elicited from him to support the prosecution case. He denied the statement given before police as per Ex.P6.
vi. CW9 Sri Chandrashekar M. Mete, the then HC of R.T.Nagara Police station examined as PW5 deposed about registration of FIR as per Ex.P7 on the basis of complaint as per Ex.P3 and handed over the case papers to CW1.
15. A question arises whether the PW3, Police Sub-Inspector has a power to enter the shop No.24, M/s Judge A.M. Enterprises situated at Dinnuar Main Road 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 9 KABC030127222020 CC 29941/2022
13. Power of entry , search and seizure: (1) Any Officer of the Central or the State Government not below the rank of Inpector duly authorised 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 , authorised 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 equipments , 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.
10 KABC030127222020 CC 29941/2022(2) The sales officer of a Government Oil Company shall be authorised to secure compliance of this order by the distributors appointed under the public distribution system and or by the consumer registered by them.
Thus, it nowhere prescribes that a Sub-Inspector of the Police can take action. No doubt, the aforesaid Clause provides that in addition to the specified officers, the persons authorised by the Central or State Government may take action under the Order. However, nothing has been placed on record to support the prosecution argument that the Sub Inspector of the Police was authorised to take action under the aforesaid Order. It is a settled law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden and the said principle is appreciated in the case of DHARANI SUGARS AND CHEMICALS LTD. VS. UNION OF INDIA AND ORS. REPORTED IN (2019) 5 SCC 480. In the absence of the authority and power with the Sub-Inspector of police to take action as per the order, the proceedings initiated by PW3 is unauthorised and unsustainable in law and the said principle is appreciated in the case of AVTAR SINGH & ANR. VS. STATE OF PUNJAB REPORTED IN 2023 LATEST CASE LAW 247 SC.
11 KABC030127222020 CC 29941/202216. 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 ***].
In this reference, it is relevant to mention cross examination of PW3 and Ex. P. 1 and Ex. P 7 wherein he deposed in the cross examination that "ದಾಳಿ ಪಂಚನಾಮೆ ಮಾಡಿದ ನಂತರ ನಾನು ದೂರು ದಾಖಲಿಸಿರುತ್ತೇನೆ"
and further appears from Ex.P1 -spot cum seizure mahazar under which gas cylinders have been seized by the CW1/PW3 PSI by stating that the accused were in the possession of gas cylinders without any license on 10-05-2022 at 19-20 to 20-40 pm however FIR was registered on 10-05-2022 at 20.50 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 12 KABC030127222020 CC 29941/2022 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, 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 13 KABC030127222020 CC 29941/2022 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 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;
14
KABC030127222020 CC 29941/2022
(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 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.
15 KABC030127222020 CC 29941/2022--(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:
Provided 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 16 KABC030127222020 CC 29941/2022 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 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 17 KABC030127222020 CC 29941/2022 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 have 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 no power to enter the premises of accused No. 1 for search and seizure.
18. PW3 and PW4 in his cross examination has deposed that:
ಚಾಸಾ.2- ಮತ್ತು 3 ಪಂಚರನ್ನು ನಮ್ಮ ಠಾಣಾ ಸಿಬ್ಬಂದಿಯಾದ ಚಾಸಾ.4 ರವರು ಕರೆದುಕೊಂಡು ಬಂದಿುರತ್ತಾ ರೆ. Xxxx ಅಕ್ಕಪಕ್ಕದ ವ್ಯಕ್ತಿಗಳನ್ನು ನನ್ನ ದಾಳಿ ಸಮಯದಲ್ಲಿ ಅವರನ್ನು ಸಾಕ್ಷಿ ದಾರರನ್ನಾ ಗಿ ಮಾಡಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. and ದಾಳಿ ಮಾಡಿದ ಅಂಗಡಿಯ ಅಕ್ಕಪಕ್ಕದ ವ್ಯಕ್ತಿಗಳನ್ನು ನಾನು ವಿಚಾರಿಸಿರುವುದಿಲ್ಲ.18 KABC030127222020 CC 29941/2022
and boundaries of spot cum seizure mahazar as per Ex. P. 1 is as follows; ಪೂರ್ವಕ್ಕೆ : ಶೊಟೀಬಲ್ ಟೈಲೊರ್ ಶಾಪ್ ಪಕ್ಶಮೆ ಕ್ಕೆ : ಕ್ಲಾ ಸಿಕ್ ಬೆಡ್ಡಿಂಗ್ ಸೆಂಟರ್, ಉತ್ತರಕ್ಕೆ ಬಿಲ್ಡಿಂಗ್ ಇರುತ್ತದೆ ದಕ್ಷಿಣಕ್ಕೆ ದಿಣ್ಣೂ ರ್ ಮುಖ್ಯ ರಸ್ತೆ ಇರುತ್ತದೆ 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 is situated on the main road wherein there are shops at the alleged spot. At the time of raid, there were shops around the alleged spot but the PW3 (IO) has not made any attempt to obtain 19 KABC030127222020 CC 29941/2022 their statement. Such being the case, this court cannot give any credence to the Ex. P. 1 (seizure cum spot mahazar). More so, they were public as per evidence of PW3 and PW4, he could have made attempts to secure the witnesses but no such attempts were made out. 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 PW1 and PW2 along with him however even they did not support the seizure mahazar as per Ex. P. 1 as no mahazar were not drawn and no seizure of gas cylinders in their presence. 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.
19. PW3 has not taken any photographs or video recorded at the time of seizure as per Ex. P.1.
20. In addition to which, there was no complaint against the accused No. 1 and 2 from public about the illegal sale of gas cylinders. It is relevant to mention here in the cross examination of PW3 and PW4 that 20 KABC030127222020 CC 29941/2022 "ಬಾತ್ಮಿದಾರರ ಹೊರತಾಗಿ ಬೇರೆ ಯಾವುದೇ ಸಾರ್ವಜನಿಕರಿಂದ ಆರೋಪಿತರ ಬಗ್ಗೆ ಕಾನೂನು ಬಾಹಿರವಾಗಿ ಅಕ್ರಮ ಹಣ ಸಂಪಾದನೆ ಮಾಡುವ ಉದ್ದೇಶದಿಂದ ಗೃಹ ಬಳಕೆ ಗ್ಯಾ ಸ್ ಸಿಲಿಂಡರ್ ಗಳನ್ನು ಯಾವುದೇ ಮುಂಜಾಗ್ರತೆ ಕ್ರಮ ಕೈಗೊಳ್ಳದೇ ಚಿಕ್ಕ ಚಿಕ್ಕ ಸಿಲಿಂಡರ್ ಗಳಿಗೆ ರಿಫಿಲ್ಲಿಂಗ್ ಮಾಡಿ ಸಾರ್ವಜನಿಕರಿಗೆ ಮಾರಾಟ ಮಾಡುತ್ತಿದ್ದಾ ರೆಂದು ಯಾವುದೇ ದೂರು ದಾಖಲಾಗಿರುವುದಿಲ್ಲ. and ಚಾಸಾ.1 ರವರಿಗೆ ಮಾಹಿತಿ ಬಂದ ಪೂರ್ವದಲ್ಲಿ ಆರೋಪಿತರು ಅಕ್ರಮವಾಗಿ ಹಣ ಸಂಪಾದನೆ ಮಾಡಲು ರಿಫಿಲ್ಲಿಂಗ್ ಮಾಡುತ್ತಿದ್ದಾ ರೆ ಎಂದುನಮಗೆ ಯಾವುದೇ ದೂರು ಅಥವಾ ಮಾಹಿತಿ ಸಾರ್ವಜನಿಕರಿಂದ ಬಂದಿರುವುದಿಲ್ಲ.
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 No. 1 and 2 are indulged in selling of gas cylinders illegally to make wrongful gain.
21. PW3 has not investigated about the source of cylinders for having illegal supply of cylinders and for refilling of gas.
22. Thus, as discussed above by taking into account factual deficiencies in the case made out by the prosecution, the accused No.1 and 2 is entitled for an order of acquittal thereby the point 21 KABC030127222020 CC 29941/2022 No. 1 and 2 is answered in negative.
23. Point No.3:- For the foregoing discussion and the findings to the above point No.1 & 2, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offenses punishable under Section 7, 3(1)(a), 3(B)(C), 4(1)(A), 6 of Liquified Petroleum Gas Supply (Regulation and Supply Distribution Order 2000), 1939, Section 7(1)(a)(i), 3 of Essential Commodities Act and Section 285 read with 34 of IPC.
(ii) Accused No.1 and 2 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) Ordered accordingly.22 KABC030127222020 CC 29941/2022
(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 02nd day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Mohammed Imran PW2 : Sri Mohammed Athik Ulla PW3 : Sri Subashchanra S Pattan PW4 : Sri Kemparaju PW5 : Sri. R.Manjunath PW6 : Sri Chandrashekar M.Meti
Documents marked on behalf of the prosecution:
Ex.P1 : Seizure mahazar Ex.P2 : Statement of PW1 Ex.P3 : Statement of PW2/Complaint Ex.P4 : Subscription voucher (copy) Ex.P6 : Statement of PW5 Ex.P5 : Letter dtd: 11-6-2022 Ex.P7 : First Information Report
Material Objects marked on behalf of the prosecution:
Nil 23 KABC030127222020 CC 29941/2022 Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.24