Karnataka High Court
C Ramalingaiah vs State Of Karnataka on 9 April, 2021
Equivalent citations: AIRONLINE 2021 KAR 341
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.661 OF 2020
BETWEEN:
C. RAMALINGAIAH
S/O CHIKKALINGEGOWDA
AGED ABOUT 60 YEARS
R/AT HOLULU VILLAGE
DUDDA HOBLI, MANDYA TALUK
MANDYA DISTRICT-571402.
... PETITIONER
(BY SMT.B.V.VIDYULATHA., ADVOCATE)
AND:
STATE OF KARNATAKA
BY MANDYA RURAL POLICE STATION, MANDYA
REPRESENTED BY SPP
HIGH COURT BUILDING
Dr. AMBEDKAR VEEDHI
BENGALURU-560 001.
... RESPONDENT
(BY SMT.NAMITHA MAHESH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO (1) QUASH THE FIR REGISTERED IN
CR.NO.48/2018 IN MANDYA RURAL P.S, AND CHARGE SHEET IN
C.C.NO.1018/2019 BEFORE THE JMFC, MANDYA AND ETC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.03.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
This petition is filed under Section 482 of Cr.P.C, praying this Court to quash the FIR in Crime No.48/2018 and the charge sheet in C.C.No.1018/2019 on the file of JMFC., at Mandya and pass such other relief/s as this Court deemed fit in the facts and circumstances of the case.
2. The factual matrix of the case is that in the charge sheet an allegation is made that on 30.01.2018, when CW.1 was in the Police Station at 7:15 a.m, CW.19 gave an information that in the rented premises of Holalu Grama Panchayath, the accused person was illegally refilling the gas. Based on the credible information, CW.1 by obtaining the search warrant from CW.25 went in a Police Jeep along with CWs.19 to 24 and also took CWs.2 and 3 with them, at around 9:00 a.m, conducted the raid. At that time, accused from the cylinders of domestic LPG, illegally refilling the same to the commercial cylinders and auto cylinders. On inspection, they found one filled gas cylinder and 9 empty gas cylinders belongs to Bharat Gas, in total 10 cylinders. They also found one empty and 5 filled gas cylinders belongs to H.P.Company and one empty cylinder belongs to Shakthi 3 Company and two auto cylinders, one re-filling stick and one weighing scale with weighing stones of 10 Kg, 5 Kg, 2 Kg, ½ Kg, 100 grams of one each, weighing stones of 1 Kg and 200 grams, 2 each, 08 customers books of H.P.Gas Company, 04 customers books of Bharat Gas Company and a cash of Rs.3,900/-. He was converting domestic LPG to commercial cylinder and selling the same for higher price. The police have also registered the case and investigated the matter and filed the charge sheet for the offence under Sections 3 and 7 of the Essential Commodities Act, 1955 ('the EC Act' for short) and Order 3(1)(a)(b)(c) of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 ('the LPG Order, 2000' for short). Hence, the present petition is fled before this Court.
3. The learned counsel appearing for the petitioner in her arguments, she vehemently contends that a false case has been registered against the petitioner herein for non-compliance of Section 154 of Cr.P.C. The learned counsel would vehemently contend that when the cognizable offence is came to the knowledge of the Investigating Officer, he ought to have registered the case and the same has not been done. The 4 learned counsel would contend that there is an inordinate delay in submitting the report to the jurisdictional Magistrate as required under Sections 157 and 158 of Cr.P.C. The criminal proceeding initiated against the petitioner is only to harass the petitioner and an FIR discloses that the same was sent to the Court at 10:45 a.m. on 30.01.2018 through one Sri Honnaiah, HC 363. However, the endorsement upon the said document shows that the learned Magistrate received it only at 8 p.m. on 30.01.2018. Thus, it is evident that the FIR dated 30.01.2018 was prepared at the instance of some person and the statements therein are not true. The respondent-Police have conducted preliminary investigation on 30.01.2018 by conducting search and seizure of the shop belonging to the petitioner and only thereafter they have prepared a 'First Information Report' in due violation of Section 154 of Cr.P.C. The Mahazar is also a fabricated document, which is prepared in the office of the PSI, if the PSI had drawn the Mahazar in the spot as per Section 100 of Cr.P.C., the copy of the Mahazar should have been delivered to the petitioner, which is not done in the instant case, which clearly evidences the fact that no Mahazar was drawn in the spot. The Mahazar discloses that the raid was commenced at 5 9:00 a.m., but in the end of the Mahazar, it is clearly mentioned that the Mahazar was prepared between 11:15 a.m. and 1:15 p.m. However, the report of Sri Azaruddin was prepared at the spot at 9:45 a.m. and sent through PC-32 Raghuraje Urs to the Rural Police Station for the purpose of registering the 'First Information Report'.
4. The petitioner is no way concerned with illegal refilling of the gas and his age indicates that he would be incompetent to do the said job. The photographs, which have been produced before the Court, which clearly discloses the theory of illegal gas filling by the petitioner. His shop is located in a busy circle opposite to a temple in the Grama Panchayath Building, on Mandya-Melkote road.
5. The learned counsel also would vehemently contend that before confiscation of the same ought to have sent report and issued the show-cause notice under Section 6A and 6B of the EC Act. The other contention is that when the cognizable offence has been taken place, the report has not been filed immediately and the Mahazar was also not done in accordance with law. The learned counsel also vehemently contends that 6 Order 13 of the LPG Order, 2000, has not been complied. Order 14 says Overriding effect. The investigation has been conducted before registration of the FIR. The cognizance is also not taken under the EC Act. Hence, it requires an interference of this Court.
6. Per contra, learned High Court Government Pleader appearing for the respondent/State would vehemently contend that the search warrant was obtained under Order 13 of the LPG Order, 2000 from the Dy.S.P. The search warrant is clear that permission was given to conduct the search and thereafter an FIR was registered. The search was conducted at 9:00 a.m, and the Mahazar was drawn subsequent to registration of the FIR. The statement of witnesses is very clear that the cylinders are seized in the presence of CWs.2 and 3, who are the panch witnesses, who accompanied the raiding party and the other witnesses, were also present along with CW.1 at the time of conducting the raid. The witnesses-CWs.19 to 24 also the eyewitnesses to the incident and seizure of the articles at the spot and they were also present at the time of conducting the 7 raid. Hence, there cannot be any quashing of proceeding when the materials available before the Court.
7. The learned counsel would vehemently contend that it is a matter of trial and the contention is that there is an error in not drawing the Mahazar in accordance with law, is also a disputed question and the same has to be considered at the time of trial.
8. Having heard the arguments of the respective counsel, the Mahazar reveals that the same was conducted from 11:15 a.m. to 1:15 p.m. at the spot and also photos were taken at the spot. The Mahazar discloses the seizure of the articles. It is also important to note that the complaint was given on 30.01.2018 at 10:15 a.m. and an FIR was registered in Crime No.48/2018 for the above offences. In the complaint, a specific allegation was made that the complainant has received the credible information at 7:15 a.m. and the raid was conducted in the early morning at 9'o clock. The complaint discloses that the search warrant on 30.01.2018 was obtained from the office of Dy.S.P, which bears Office No.SDPO/MDY/searchwarrant/01/2018. After having received 8 the search warrant only they went to the spot and conducted the raid. Having taken note of the contents of the complaint only on conducting the raid, they found the accused was refilling the cylinder by using the domestic LPG for commercial purpose and seized empty cylinders and also the filled cylinders were seized. The FIR also discloses that the information was received at 10:15 a.m. and the raid was conducted at 9:00 a.m. and an FIR was dispatched at 10:45 a.m. through HC 363. No doubt, the learned counsel also brought to the notice of this Court, the same was received by the Magistrate on 30.01.2018 at 8 p.m.
9. The main contention of the learned counsel for the petitioner is that before seizure of the articles ought to have given the show cause notice and the Mahazar was also not conducted in accordance with law, the same cannot be decided in a proceeding under Section 482 of Cr.P.C. and the same is requires to be tried before the Trial Court. The disputed questions cannot be decided in a proceeding under Section 482 of Cr.P.C. It is also important to note that the charge sheet materials are very clear that CW.1 went to the spot along with independent witnesses-CWs.2 and 3, who are the eyewitnesses 9 to the incident of conducting the raid and seizure of the articles and also the official witnesses-CWs.19 to 24, who accompanied with CW.1 in conducting the raid. The statement of these witnesses to be considered during the course of the trial. The truthfulness of statement of these witnesses cannot be ascertained in a proceeding under Section 482 of Cr.P.C.
10. The very contention of the learned counsel for the petitioner is that Order 13 of the LPG Order, 2000 has not been complied and also cannot be decided in this proceeding. The material discloses the search warrant is received from the Dy.S.P, and the same is evident in the complaint itself and only on the basis of search warrant, the raid was conducted. The other contention is that the investigation is conducted before registration of the case cannot be accepted for the reason that only on credible information with the search warrant they went and inspected the premises in which the illegal refilling work was noticed. No doubt, the photographs are produced before the Court to show that the shop is situated in the public place. Merely because of photographs are produced in this proceeding, whether the illegal act of refilling work was taken place or not 10 cannot be decided in this proceeding. Though it is contended that the cognizance is taken for the offences punishable under Order 3(1)(a)(b)(c) of the LPG Order, 2000 and on perusal of the order sheet of the Trial Court, the learned Judge while taking the cognizance perused the prosecution papers and formed an opinion that prima facie shows that accused has committed the offences punishable under Sections 3 and 7 of the EC Act and Order 3(1)(a)(b)(c) of the LPG Order, 2000. The learned Magistrate also while taking the cognizance applied his judicious mind and taken the cognizance. Hence, I do not find any merit in the petition to invoke Section 482 of Cr.P.C. to quash the proceedings and the disputed questions cannot be considered in the proceedings under Section 482 of Cr.P.C. and it is a matter of trial. The defenses of the petitioner cannot be decided in this proceeding. The delay in sending the report and non compliance of Section 6A and 6B of the EC Act also can be raised before the Trial Court since the same amounts to mixed question of fact and law.
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11. In view of the discussions made above, I pass the following:
ORDER The petition is dismissed. In view of dismissal of the main petition, I.A.No.1/2020 for stay does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE cp*