Karnataka High Court
Inayathulla vs The State By Bagepalli Police Station on 22 February, 2023
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CRL.RP No. 103 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 103 OF 2021
BETWEEN:
INAYATHULLA
S/O MOHD. HUSSAIN,
MUSLIM,
AGED ABOUT 57 YEARS,
R/A WARD NO.23, BAGEPALLI TOWN,
CHIKKABALAPURA DIST.-561207.
...PETITIONER
(BY SRI. NARAYANA RAO H.R., ADVOCATE FOR
SRI. RAJESWARA P.N., ADVOCATE)
AND:
THE STATE BY:
BAGEPALLI POLICE STATION,
CHIKKABALLAPUR DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
PIN-561207.
Digitally ...RESPONDENT
signed by
SUMA (BY SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
Location: PLEADER)
HIGH THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
COURT OF
KARNATAKA SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE APPELLATE JUDGMENT DATED
11.01.2021 IN CRL.A.NO.28/2020 PASSED BY HONBLE PRL.
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA AND
CONSEQUENTLY SET ASIDE JUDGMENT OF CONVICTION AND
SENTENCE DATED 17.02.2020 PASSED IN C.C.NO.261/2013 BY THE
HON'BLE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
BAGEPALLI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 103 of 2021
ORDER
The petitioner has challenged the judgment of conviction dated 17.02.2020 passed by the Civil Judge and JMFC, Bagepalli, (henceforth referred to as 'Trial Court' for short) in C.C.No.261/2013 convicting him for the offences punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934 as well as Section 285 of IPC and sentencing him to undergo simple imprisonment for a period of six months along with fine of Rs.1,000/- for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order and Section 23 of the Petroleum Act and to undergo simple imprisonment for a period of one month along with fine of Rs.1,000/- for the offence punishable under Section 285 of IPC. The petitioner has also challenged the judgment dated 11.01.2021 passed by the Principal District and Sessions Judge, Chikkaballapura (henceforth referred to as -3- CRL.RP No. 103 of 2021 'Appellate Court' for short) in Crl.A.No.28/2020 by which, the judgment of conviction passed by the Trial Court was upheld.
2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioner herein was the accused.
3. The food inspector lodged a complaint dated 31.01.2012 stating that on receipt of credible information that some persons illegally and unauthorizedly were using domestic LPG cylinders belonging to the Government and private entities, to refill smaller cylinders at a shop of Zubeda Transport, near New Horizon School road, a raid was conducted along with the police inspector. On the way, they secured independent witnesses to conduct a mahazar. When they visited the spot, they found that premises was a shop measuring 20 ft x 10 ft and comprised of two rooms. In one of the rooms, the accused had stored domestic LPG cylinders belonging to the Government and private entities and was refilling gas lights and gas cylinders used in vehicles. On enquiry, he revealed that he was a gas stove and motor wiring mechanic. He was taken into custody and a mahazar was drawn. It was found that -4- CRL.RP No. 103 of 2021 there were four commercial cylinders weighing 19 kg each, of which, one of them was half full. One full sealed cylinder weighing 15.9 kg of H.P. Company, two empty gas cylinders of 16.2 kg and 16.3 kg belonging to H.P. Company were seized. In another room, they seized a electronic weighing machine and they found 14 kg empty LPG cylinder of Sree Gas Cylinder and gas refilling nozal pipe. They also found three empty 5.5. kg cylinders and seven empty cylinders of 2 kg capacity used for gas lights. The premises was seized and the key was handed over to the friend of the accused Mr. Syed Ibrahim.
4. Based on the complaint, the jurisdictional police registered Crime No.21/2012 for the offence punishable under Section 285 of IPC and Sections 3 and 7 of the Essential commodities Act, 1955 read with Section 23 of the Petroleum Act, 1934. After recording the statement of the witnesses and reporting the seizure of the property to the Court, a charge- sheet was filed for the offences punishable under Section 285 of IPC read with Sections 3 and 4 of the Essential Commodities Act, 1955 and Section 23 of the Petroleum Act, 1934. -5- CRL.RP No. 103 of 2021
5. The Trial Court took cognizance of the offences punishable under Section 285 of IPC, Section 7 read with Section 3 of the Essential Commodities Act, 1955 and Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934. The Trial Court secured the presence of the accused and released him on bail. A copy of the charge-sheet was furnished to the accused and the substance of accusation was read over to him. The accused pleaded not guilty and claimed to be tried.
6. The prosecution examined a witness to the spot mahazar as PW.1, who turned hostile. PW.2 was the Food Inspector, who raided the premises and he supported the prosecution. PW.3 was another witness to the spot mahazar, who also turned hostile. However, he identified the signature on the spot mahazar which was marked as Ex.P1. PW.4 was the Police Constable, who accompanied the team which raided the premises and he supported the prosecution. PW.5 was the Police Inspector, who accompanied the team which raided the premises and seized the property and drew a mahazar. He supported the prosecution. PW.6 was the Police Inspector, who -6- CRL.RP No. 103 of 2021 accompanied the team which raided the premises and arrested the accused and in whose presence, the spot panchanama was drawn. He deposed that he had taken photographs of the premises, which was raided. PW.7 was the investigating officer, who took over the investigation from PW.8 and recorded the statements of witnesses. He deposed that he communicated with the Deputy Commissioner to take over the seized articles. He deposed that the Tahsildar had passed an order dated 07.06.2012 to handover the seized the articles to S.L.V. Gas Agency, Bagepalli. He identified an acknowledgement by S.L.V. Gas Agency, Bagepalli acknowledging the receipt of the seized articles. He was the one, who submitted a charge-sheet against the accused. He supported the case of the prosecution. PW.8 was a Police Sub-Inspector, who accompanied the team which raided the premises, in whose presence, the articles were seized. He supported the prosecution. PW.9 was the Deputy Superintendent of Police, who deposed that he was the Circle Inspector at Bagepalli Circle between 25.07.2011 and 30.09.2013. He deposed that on the request of PW.1, he and PW.5, PW.6, PW8, PW.7 and CW.5 and CW.6 along with PW.3 went to the spot in a departmental vehicle bearing registration -7- CRL.RP No. 103 of 2021 No.KA-04-G-64. He deposed that photographs of the articles were taken and the same were seized.
7. The prosecution marked Exs.P1 to P17 of which, Ex.P1 was the complaint, Ex.P2 was the statement of PW.1. Exs.P3 to P12 were the photographs. Ex.P13 was the C.D. of the photographs, Ex.P14 was the statement of PW.3, Ex.P15 was the acknowledgment issued by S.L.V Gas Agency Bagepalli, Ex.P16 was a letter addressed by S.L.V. Gas Agency, Bagepalli and Ex.P17 was the F.I.R.
8. Based on the oral and documentary evidence, the Trial Court held that the search of the premises and seizure of the incriminating articles were proved by Ex.P1. It held that the official witnesses had deposed about the search of the premises and the incriminating articles seized from the premises. It held that under Section 14 of the Essential Commodities Act, the burden of proving that the accused had authority/permit/licence or other document to possess LPG Cylinders more than the prescribed quantity, is upon the accused. It held that the accused failed to lead any rebuttal evidence to establish that the accused was authorized to -8- CRL.RP No. 103 of 2021 possess the LPG cylinders. It further held that under Section 13 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, the power of search and seizure is provided to an official of the rank of inspector and that PW.2 deposed that he had the oral order of the Tahsildar to conduct search and seize. Therefore, it held that the prosecution had clearly established the chain of circumstances and proved the commission of offence by the accused beyond doubt. Therefore, it convicted him for the offences punishable under Section 7 read with Section 3 of the Essential Commodities Act read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order and Section 23 of the Petroleum Act and Section 285 of IPC and sentenced him accordingly.
9. Being aggrieved by the said judgment of conviction and order of sentence, the accused filed Crl.A.No.28/2020. The Appellate Court secured the records of the Trial Court, heard the counsel for the accused and the Public Prosecutor and framed points for consideration. It reconsidered the evidence and held that the prosecution had proved beyond doubt that the accused was refilling domestic cylinders by drawing LPG gas -9- CRL.RP No. 103 of 2021 from domestic cylinders belonging to the Government and private entities, without taking any precautions, without obtaining any licence and consequently, dismissed the appeal and upheld the judgment of conviction passed by the Trial Court.
10. Being aggrieved by the judgments of both the Courts, the accused has filed this revision petition.
11. The learned counsel for the petitioner/accused submitted that a search of a premises can be conducted by a person not below the rank of an inspector, who had to be duly authorized by a general or special order. He submitted that the prosecution failed to place on record any document to indicate that PW.2 was authorized to conduct a search. He further submitted that the seizure of the articles was not proved as PW.1 and PW.3 turned hostile and except the evidence of the official witness, there was no evidence of any independent witness to prove the search and seizure. Further, he submitted that except one cylinder, which was half full and another full/sealed cylinder, all the other cylinders were empty and therefore, the accused was not in possession of LPG and
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CRL.RP No. 103 of 2021therefore, was not guilty of any offence under Section 23 of the Petroleum Act and under Sections 3, 4 and 5 of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order and he was not guilty of any offence punishable under the Essential Commodities Act.
12. Per contra, learned High Court Government Pleader for the respondent/State submitted that the seizure of the LPG cylinders as well as the cylinders to be refilled and the refilling nozal pipe and the arrest of the accused was sufficiently proved by PW.2, PW.4, PW.5 and PW.6. He submitted that in these types of cases, the prosecution can only rely upon official witnesses and there is no reason why the statement of these official witnesses should be disbelieved. He submitted that the accused did not point out any circumstance to establish that the prosecution witnesses had framed him in the case or that they had any animosity against the accused in the past. He submitted that the premises was raided by PW.2 along with PW.9, who are authorized by the Government through general orders and therefore, the prosecution of the accused was proper and legal. He submitted that the accused did not possess a licence to store the LPG cylinders and in view of
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CRL.RP No. 103 of 2021Section 10C of the Essential Commodities Act, 1955, the accused is presumed to possess a culpable mental state.
13. I have considered the submissions made by the learned counsel for the petitioner/accused as well as the learned High Court Government Pleader for the respondent/State. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court.
14. The accused was charged for the offences punishable under Section 7 read with Section 3 of the Essential Commodities Act read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order and Section 23 of the Petroleum Act for stocking LPG Gas cylinders without appropriate licence and using them for gas refilling for commercial purposes. It was contended by the learned counsel for the accused that under Section 13 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, any officer of the State Government not below the rank of inspector duly authorized by a general or special order, may, with a view to securing the compliance of the Liquefied
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CRL.RP No. 103 of 2021Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, shall stop and search any vehicle or search any place. However, the learned counsel for the accused has lost sight of the fact that the search of the premises in question was conducted by PW.2, who is the Food Inspector, PW.5 and PW.9, who were officers of the State Government and under Section 5 of the Essential Commodities Act, 1955, the State Government is entitled to authorize any of its officers to exercise powers under the said Act. Even if PW.2 was not authorized, it is only an irregularity which did not vitiate the proceedings, as such authorization was not akin to a sanction under Section 197 of Cr.P.C.
15. In so far as the other contention that the prosecution had only relied upon official witnesses, there is no reason why the testimony of these official witnesses should not be believed more particularly, when there is enough material to corroborate the evidence of these official witnesses. There is no allegation made against the official witnesses that they were ill-disposed towards the accused. When the evidence of the official witnesses is trustworthy and credible, there is no reason why a conviction should not be handed down based on their
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CRL.RP No. 103 of 2021evidence. The investigating officer has seized the domestic LPG cylinders, an electronic weighing machine, cylinders used for refilling, nozal pipe. The accused has not explained the circumstances under which, he was found at the place where these cylinders were stocked. The accused did not possess a licence to store as many as two domestic empty LPG cylinders, four empty commercial LPG cylinders, one 15.9 kg domestic cylinder, one 14 kg empty commercial LPG cylinder, two empty cylinders of 2 kg each and three empty cylinders of 5.5 kg each, an electronic weighing machine and a refilling nasal pipe. The seizure of these incriminating objects was proved by PW.4, PW.5 and PW.6 as well as PW.2. The spot mahazar was also proved and the accused was apprehended from the scene of the crime. In that view of the matter, the Trial Court and the Appellate Court have rightly held that there was enough evidence to establish the complicity of the accused in the crime and therefore, were justified in convicting the accused for the offences mentioned above.
16. In so far as the quantum of sentence is concerned, except two LPG gas cylinders one of which was half full, all the other gas cylinders were empty. Therefore, the accused cannot
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CRL.RP No. 103 of 2021be dealt with harshly, as there is no proof that he had used up the LPG gas in the other cylinders for commercial purposes. Having regard to the age of the accused, this Court considers it appropriate to reduce the sentence of simple imprisonment of six months for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 read with Sections 3, 4, 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934, to a sentence of 45 days along with enhanced fine of Rs.10,000/-, in default, he shall undergo simple imprisonment for a period of one month. He shall also pay fine of Rs.1,000/- for the offence punishable under Section 285 of IPC. In default of payment of fine, he shall undergo simple imprisonment for ten days.
17. Hence, the following ORDER The revision petition is allowed in part. The judgment of conviction and order of sentence dated 17.02.2020 passed by the Civil Judge and JMFC, Bagepalli in C.C.No.261/2013 for the offences punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 read with Sections 3, 4 and 5
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CRL.RP No. 103 of 2021of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934 as well as Section 285 of IPC is upheld. However, the sentence of simple imprisonment of six months along with fine of Rs.1,000/- imposed by the Trial Court for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934 is modified and is reduced to simple imprisonment for 45 days along with fine of Rs.10,000/- payable within one month from today, failing which, the accused shall undergo further simple imprisonment for 15 days. The accused is sentenced to pay fine of Rs.1,000/- for the offence punishable under Section 285 of IPC within one month from today, failing which, he shall undergo simple imprisonment for ten days.
The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.
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JUDGE PMR List No.: 1 Sl No.: 43
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CRL.RP No. 103 of 2021IN THE HIGH COURT OF KARNATAKA AT BENGALURU [INAYATHULLA VS. THE STATE BY BAGEPALLI POLICE STATION] RNJ 23.03.2023 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON I.A. NO.1/2023 I.A. No.1/2023 is filed seeking suspension of sentence passed by this Court in terms of the Order dated 22.02.2023.
The learned counsel for the petitioner submits that this Court in terms of the Order dated 22.02.2023, had sentenced the petitioner to undergo simple imprisonment for 45 days along with fine of Rs.10,000/-, which was payable within one month, failing which the petitioner was directed to undergo simple imprisonment for 15 days for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 read with Sections 3, 4 and 5 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Section 23 of the Petroleum Act, 1934. He was also sentenced to pay fine of Rs.1,000/- for the offence punishable under Section 285 of the IPC within one month and in default, to undergo simple imprisonment for 10 days. He
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CRL.RP No. 103 of 2021submits that the fine imposed could not be paid as the certified copy of the order was received on 18.03.2023.
In view of the claim of the learned counsel for the petitioner that the certified copy of the order dated 22.02.2023 was received on 18.03.2023, the time to pay the fine of Rs.10,000/- and Rs.1,000/- respectively as per the Order dated 22.02.2023 is extended for a further period of 15 days from the date of receipt of a certified copy of this Order. This order shall be read in conjunction with the Order dated 22.02.2023. The Trial Court is requested to accept fine.
Accordingly, I.A. No.1/2023 is allowed.
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JUDGE SMA List No.: 3 Sl No.: 1