Karnataka High Court
Shek Abdul Khaleek @ Shaik Abdul Khaliq vs State By Magadi Police Station on 17 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 12602 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 12602 OF 2022 (GM-RES)
BETWEEN:
SHEK ABDUL KHALEEK @ SHAIK ABDUL KHALIQ
S/O SHAIK ASGHAR PASHA
AGED ABOUT 46 YEARS
OCCUPATION-CONTRACT TRANSPORTER
R/AT NO.-27,
COLES ROAD, "F" STREET
CLEVELAND TOWN
BENGALURU - 560 005
PRESENTLY R/AT NO.7
2nd FLOOR, RAYAPPA ROAD,
FREZER TOWN,
BENGALURU - 560 005.
...PETITIONER
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
Digitally signed by AND:
PADMAVATHI B K
Location: HIGH
COURT OF
KARNATAKA
1. STATE BY MAGADI POLICE STATION
REP. BY SPL. PUBLIC PROSECUTOR
OFFICE AT ADVOCATE GENERAL OFFICE,
HIGH COURT COMPLEX,
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
2. PUSHPALATHA T.N.,
FOOD INSPECTOR
MAGADI TALUK
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WP No. 12602 of 2022
RAMANAGARA - 562 120.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR DATED
04.06.2022 AGAINST THE PETITIONER WHICH IS REGISTERED
AS CRIME NO.158/2022 BY THE RESPONDENT POLICE AT
ANNEXUR-A SAME IS PENDING IN THE FILE OF 1ST
ADDL.CIVIL JUDGE (JR. DN) AND JMFC, AT MAGADI
RAMANAGARA FOR THE OFFENCES PUNISHBLE UNDER
SECTION 420, 120B, 464, 468, 477 OF IPC AND UNDER
SECTION 3, 6(A), 7 OF KARNATAKA ESSENTIAL COMMODITIES
ACT AND UNDER SECTION 3, 4, 12, 18, 19 OF KARNATAKA
ESSENTIAL COMMODITIES ACT (PUBLIC DISTRIBUTION
SYSTEM) PUBLIC CONTROL ORDER 2016 AND UNDER SECTION
3(2)(i), 4, 6, 8 OF KARNATAKA ESSENTIAL COMMODITIES
(STORAGE ACCOUNTS MAINTAINING VALUE NOTIFICATION)
ORDER 1981. WHEREIN THIS PETITIONER IS ARRAIGNED AS
ACCUSED NO.1.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'FRESH MATTERS LIST' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner in this writ petition calls in question registration of crime in Crime No.158 of 2022 for offences punishable under Sections 420, 120B, 464, 468 and 477 of the IPC, Sections 3, 6(A) and 7 of the Essential Commodities Act, 1955, Sections 3, 4, 12, 18 and 19 of the Karnataka Essential Commodities (Public Distribution System) Public Control Order -3- WP No. 12602 of 2022 2016 and Sections 3(2)(i), 4, 6 and 8 of the Karnataka Essential Commodities (Storage Accounts Maintaining Value Notification) Order 1981.
2. Heard Sri. Mohammed Tahir, learned counsel appearing for the petitioner and Sri K.S.Abhijith, learned High Court Government Pleader for the respondents.
3. Brief facts that lead the petitioner to this Court in the subject petition are as follows:-
The 2nd respondent/Food Inspector registers a complaint against the petitioner and his employee alleging that while going to her office she saw on 4-06-2022 one luggage vehicle bearing No. KA 01/AD-7535 parked in front of a tyre shop at Jyothipalya Village on Bangalore-Magadi State Highway. On inspection of the lorry it was found that the goods in the vehicle was loaded with 526 bags of Ragi. Immediately thereupon the first informant/2nd respondent informed this fact to the Deputy Director of Food and Civil Supplies and on further inspection found that the food grains in the vehicle were meant for public distribution under the Public Distribution System and also found -4- WP No. 12602 of 2022 that the lorry had received food grains on 2.06.2022 from the State owned Ragi godown and was billed to one KFCSC Godown, K.G. Halli, Bangalore. This lifting of Ragi was granted to the petitioner pursuant to a tender process. The lorry was inspected completely and the vehicle contained 526 bags of 263 quintals. The Ragi and the vehicle were seized.
4. During investigation, it appears that accused No.2/driver was arrested and on questioning, he accepted his wrong doing and also accepted that it was done without the knowledge of accused No.1. Relying on the statement of accused No.2, accused No.1 was also hauled into these proceedings for offences punishable under Section 408 of the IPC. Petitioner No.1 is the owner of the lorry and successful bidder in the tender.
5. The learned counsel appearing for the petitioner Sri.Mohammed Tahir would contend with vehemence that there is no fault on the part of the petitioner and it is the lorry driver who takes the vehicle, deviates the route and also seeks to steal certain things from the vehicle. Accused No.2 has clearly -5- WP No. 12602 of 2022 admitted his guilt at the time of investigation. He would submit that due to this incident the petitioner is barred from participation in future tenders solely on the act of accused No.2, which the petitioner was not aware.
6. The learned High Court Government Pleader would however, refute the submissions to contend that the successful tenderer had to regulate the work of its employees, as the contract signed between the parties empowers registration of crime against the owner as well. Therefore, it is a matter of trial for the petitioner to come out clean.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute. Tender notification is issued by the State Government on 22-12-2021 pursuant to which, the petitioner became the successful bidder.
The responsibilities of the bidder read as follows:
-6- WP No. 12602 of 2022"13. Responsibilities of the Bidder:
a. Act with Reasonable Diligence: The Bidder shall always be bound to act with reasonable diligence and prudence while executing the obligations under the contract.
b. Charting the Movement Plan: The route plan should be finalized between the contractor and the Deputy Commissioner/Additional Director (IRA). Any unreasonable deviation from the route plan should be done only after prior permission of the Deputy Commissioner/Additional Director (IRA), unless it is emergent. Even in emergent situation, the Deputy Commissioner/Additional Director (IRA) shall be informed in advance orally about the deviation if not possible to take prior written permission within 7 days. The same should be ratified in writing at the earliest. Any unauthorized deviation in finalized route shall be considered as violation of the agreement.
Accordingly the contractor shall be penalized not only for the violation of contract agreement, but would also be liable for prosecution under E.C. Act, 1955 by treating deviation from approved route as attempt for diversion of food grains to black market.
c. Programme of Loading and Transportation: The Bidder shall obtain daily programme from the Commissioner, FCS & CA Dept., or any officer acting on h is behalf of the programme of loading/ transportation of food grains for the next date/day and the particulars of the number of bags of food grains, etc. required to be transported, the place where the trucks should report for loading etc., and shall provide adequate number of lorries/trucks in good and hygienic condition in accordance with the programme and shall ensure that the lorries/trucks etc. -7- WP No. 12602 of 2022 are positioned at the defined loading points as indicated by the Commissioner, FCS & CA Dept. or any officer acting on his behalf, daily at the time specified.
d. Arranging Transportation within Short Notice: In special cases the Bidder may also be required at short notice to arrange to transport bags of food grain, and shall bound to comply with such requests.
e. Nominating Representative: The Bidder shall intimate the Commissioner, FCS & CA Dept. and/or Officers authorized to act on his behalf, the name of one or more responsible representative(s) authorized to act on his behalf in day to day working of the contract and produce power of attorney to the said effect. It shall be the duty of those representative(s) to call at the office of the Commissioner, FC S & CA Dept. or an officer acting on his behalf, every day and generally to remain in touch, with them, to obtain information about the programme of arrivals and dispatches and to report the progress of loading/ unloading/transportation and to take instructions in the matter.
f. (i) The successful bidder should also transport the subsidized PDS commodities such as Iodised salt, palm oil, Turdal and other PDS food grains at the same rates.
(ii) He shall also transport any other commodities meant for PDS at same rate as and when directed by Deputy Commissioner/Additional Director. For this purpose he shall provide additional vehicle (norms of vehicle as per this tender) as required with due permission of Deputy Commissioner/Additional Director.
-8- WP No. 12602 of 2022g. Quantity to be transported subject to Revision: The quantity mentioned in any programme of loading given by the Commissioner, FCS & CA Dept. or any other officer acting on his behalf is liable to be varied at any time by FCS & CA Dept. and in that event the Bidder shall accordingly revise the number of trucks required for transportation. The Bidder will not be entitled to any damages/compensation whatsoever for not entrusting him with the quantity of work specified in any programme of loading issued to him.
h. All the successful bidders should produce the certificate of registration/license from the designated officers of the Department of Food Safety and Standards in the districts within 30 days before signing the contract (Toll free No.1800-425-13825).
i. While submitting the Transportation charge bills to concerned authorities for payment, necessary documents along with muster roll, wages sheet, ESI and PF credited at applicable rates and related challan, should be enclosed.
... ... .... ..
20. Vehicle Risk on Bidder: The bidders will operate their own and hired vehicles entirely at their risk and FCS & CA Dept. will not be held responsible for any damage to the vehicle/Men/third party while transporting the food grains of FCS & CA Dept. or when parked in or around the FCS & CA Dept. premises. The bidders will make their own arrangements at their cost for proper parking and safety of their vehicles and food grains."
-9- WP No. 12602 of 2022In terms of the afore-quoted clauses of the tender document, it would indicate that the contractor would be penalized not only for violation of contract agreement but would also be liable for prosecution under the Essential Commodities Act by treating the deviation from approved route for diversion of food grains to black market. The vehicle risk is also on the successful bidder. No doubt penal action of one of these measures can be initiated against a tenderer who deviates his route and that deviation will be construed to be an attempt of diversion of food grains to the black market.
9. If there was evidence in the case at hand to demonstrate even to an iota of incident that the petitioner herein was also involved in the deviation of the route, it would be an altogether different circumstance. The petitioner on coming to know of the lorry not reaching the destination informed KG Halli Police Station on 03-06-2022 at about 11 a.m. registering a complaint that the lorry was missing and taken measures to trace the lorry with the help Karnataka Lorry Association by circulating messages on Whatsapp that his lorry has gone missing. The lorry was later traced on Magadi Road
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WP No. 12602 of 2022on 06-06-2022. The entire narration was made to the Department by the petitioner himself. In the meantime, the Police registered a non-cognizable report on the complaint made by the petitioner that the lorry had gone missing. But, by then, the crime had been registered by the 2nd respondent registering a complaint before the jurisdictional police on 04-06-2022. Therefore, no fault can be laid against the petitioner in the peculiar facts of this case.
10. It is no doubt true that deviation of the route either by the petitioner or his employee would entail penal action against those persons only if there is evidence to demonstrate that the owner or the tenderer was in fact involved in such incident. In cases where there is prima facie evidence to demonstrate that the owner or the tenderer had infact indulged in such an act, proceedings could be initiated. But there is none against the petitioner in terms of the material available on record and also in the complaint so registered. Finding no merit to continue the proceedings qua the petitioner, I deem it appropriate to terminate the proceedings, owing to the fact that there is no evidence against the petitioner.
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WP No. 12602 of 202211. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) The Crime No.158/2022 dated 04-06-2022 is quashed qua the petitioner.
(iii) It is made clear that the observations made in the course of the order will not come in the way of further proceedings against accused No.2.
Sd/-
JUDGE BKP