Karnataka High Court
Nehru S/O Kandi Mallaih Seshaiah vs The State Of Karnataka By on 15 September, 2023
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CRL.R.P No.100047 OF 2015
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO.100047 OF 2015
BETWEEN:
NEHRU
S/O.KANDI MALLAIH SESHAIAH
AGE: 50 YEARS
OCC: MILK BUSINESS
R/O: II CROSS, RAJYOTSAVA NAGAR
RUPANAGUDI ROAD
BALLARI
...PETITIONER
CHANDRASHEKAR (BY SRI.S.S.YADRAMI, SR. COUNSEL FOR
LAXMAN
KATTIMANI SRI.GIRISH V.BHAT, ADVOCATE)
Digitally signed by
CHANDRASHEKAR AND:
LAXMAN
KATTIMANI
THE STATE OF KARNATAKA BY
SUB-INSPECTOR OF POLICE
BRUCEPET POLICE STATION
BALLARI
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
...RESPONDENT
(BY SRI.PRAVEEN UPPAR, HCGP)
***
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CRL.R.P No.100047 OF 2015
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT OF DISMISSAL OF THE APPEAL BY THE
PRL. SESSIONS JUDGE, BALLARI, IN CRL.A. NO.70/2012
DATED:05.01.2015 AND THE JUDGMENT AND ORDER OF
CONVICTION PASSED BY THE I-ADDL. CIVIL JUDGE AND JMFC,
BALLARI IN C.C.NO.381/2012 DATED 12.06.2012 CONVICTING
THE PETITIONER FOR THE OFFENCE U/S 3 R/W SEC.7 OF
ESSENTIAL COMMODITIES ACT AND TO UNDERGO SENTENCE
OF SI OF 6 MONTHS AND PAY A FINE OF RS.1,000/- ID TO
UNDERGO FOR SI FOR 15 DAYS AND ALSO CONVICTING THE
PETITIONER FOR THE OFFENCES UNDER RULE 3(5) OF
LIQUEFIED PETROLEUM GAS SUPPLY AND DISTRIBUTION
ORDER 2000, SENTENCING TO UNDERGO SI FOR 3 MONTHS
AND TO PAY A FINE OF RS.500/- ID TO UNDERGO SI FOR 8
DAYS AND BE TO ACQUIT THE PETITIONER OF ALL THE
CHARGES LEVELED AGAINST HIM.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FURTHER HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 12.07.2023, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
Revision petitioner feeling aggrieved by judgment of the First Appellate Court on the file of the Principal Sessions Judge at Ballari in Criminal Appeal No.70/2012 dated 05.01.2015 preferred this appeal. -3-
CRL.R.P No.100047 OF 2015
2. Parties to the revision petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that, on 20.11.2011 at 1.40 p.m., CWs 1, 5 and 6 were on inspection duty for inspecting illegal storing and selling of Domestic LPG Gas Cylinders in black market and also used to supply the same to autorickshaws. When they came near the house of accused found that accused stored 22 Domestic LPG Gas Cylinders and out of it, 13 cylinders were empty cylinders and the remaining Domestic LPG Gas Cylinders were filled with gas. Accused has stored Domestic LPG Gas Cylinders without valid license or permit from the concerned authorities to store the same in his house. CW1 has seized 22 Domestic LPG Gas Cylinders from the house of accused under the panchanama and thereafter filed the complaint. On the basis of these allegations made in the complaint, the Investigating Officer after completing investigation filed charge sheet. -4-
CRL.R.P No.100047 OF 2015
4. The Trial Court on being prima facie satisfied of the charge sheet materials, framed the charge against the accused for the offences alleged against him. Accused pleaded not guilty and claimed to be tried. Prosecution to prove the allegations made against the accused relied on the evidence of PWs 1 to 6 and documents Exs.P1 to P4.
5. On closure of prosecution evidence, the statement of accused under Section 313 Cr.P.C. came to be recorded. Accused denied all incriminating material evidence against him and claimed that false case is filed. The Trial Court after appreciation of the evidence on record convicted the accused and imposed sentence as per the order of sentence.
6. Accused challenged the said judgment of conviction and order of sentence before the First Appellate Court on the file Principal Sessions Judge at Ballari in Criminal Appeal No.70/2012. The First Appellate Court after re- appreciation of the material on record by judgment dated -5- CRL.R.P No.100047 OF 2015 05.01.2015 dismissed the appeal and confirmed judgment of the Trial Court.
7. Revision petitioner/accused challenging concurrent findings of both the courts below contended that both the Courts below have not property appreciated the evidence on record to meet the legal requirement for the offences alleged against accused. The search and seizure of the petroleum products i.e., 22 Domestic LPG Gas Cylinders from the house of the accused is not in accordance with law and the panch witnesses have not supported the case of prosecution. The Food Inspector, CW1 has no any legal authority to conduct search and seizure of 22 Domestic LPG Gas Cylinders said to have been found in the house of the accused. There is a delay of four days in reporting the seizure of 22 Domestic LPG Gas Cylinders and the same has not been explained by the prosecution from any evidence on record. The offence under Section 3(5) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 (hereinafter referred to as 'Order 2000') is not a penal clause and the conviction for the said -6- CRL.R.P No.100047 OF 2015 offence cannot be legally sustained. Therefore, the approach and appreciation of oral and documentary evidence by both the Courts below are contrary to law and evidence on record. Therefore, prayed for allowing the revision petition and to set aside the judgments of both the courts below, consequently to acquit the accused from the charges leveled against him.
8. In response to the notice, learned HCGP has appeared for the respondent.
9. Heard the arguments of both sides.
10. On careful perusal of the oral and documentary evidence on record and after hearing both the counsels, the following point arise for determination of this court :
'Whether the impugned judgment under revision is perverse, capricious and illegal, not sustainable and calls for any interference by this Court?'
11. The prosecution alleges that on 20.11.2011 at 1.40 p.m. CWs 1, 5 and 6 were on inspection duty to check the -7- CRL.R.P No.100047 OF 2015 illegal storage of petroleum products and sale of the same to public. When they reached the house of accused, they found there were 22 Domestic LPG Gas Cylinders in the house of accused and out of them, 13 cylinders were empty cylinders and remaining Domestic LPG Gas Cylinders were filled with gas. The said gas filled cylinders were being used by the accused for sale of the same to autorickshaw. Thereafter, CW1 secured the panch witnesses and 22 Domestic LPG Gas Cylinders said to have been found in the house of accused were seized under panchanama. The independent panch witnesses PWs 1 to 3 to the seizure panchanama Ex.P1 for having seized 22 Domestic LPG Gas Cylinders from the house of accused have not supported the case of the prosecution. The evidence of PW4-PSI Brucepet Police Station, Bellary only speaks about the investigation carried out by him on receipt of the complaint Ex.P2 and registered the case by drawing FIR Ex.P3. Thereafter, recorded the statement of CWs 2 to 6 and given transfer of the said cylinders to the Food and Civil Supplies -8- CRL.R.P No.100047 OF 2015 Department and obtained acknowledgement Ex.P4. On completion of investigation filed the charge sheet.
12. The material witnesses that are relied upon by the prosecution to prove the allegations made against accused are, PW5-Food Inspector who has filed the complaint Ex.P2 and PW6-RTO Inspector who accompanied PW5 for search and seizure of Domestic LPG Gas Cylinders from the house of accused as claimed by the complainant PW5. The evidence of these two material witnesses will have to be appreciated in the light of the case made out by the prosecution.
13. PW5 has deposed to the effect that since last six years he is working as Food Inspector in the Food and Civil Supply office, Bellary. On the oral direction of Deputy Commissioner and Joint Director of Food and Civil Supply on the information about Domestic LPG Gas Cylinders are being illegally stored and used for supply of the same to the Autorickshaw, proceeded along with CWs 5 and 6 on 20.1.2011. When they were in second cross Rajyotsava -9- CRL.R.P No.100047 OF 2015 Nagar near the house of Nehru S/o Sandhi Mallayya, they asked him for Domestic LPG Gas Cylinders and he replied that the same are available. At that time, one 60 years aged lady by name Saroja who was enquired by the accused stated that Domestic LPG Gas Cylinders are available. PW5, CWs 6 and 7 went inside the house and found 22 Domestic LPG Gas Cylinders stored in the house. Out of them, 9 cylinders were filled with gas and remaining cylinders were empty. On demand for producing necessary documents for storage of Domestic LPG Gas Cylinders in the house, the accused has not produced any license or permission for storing the Domestic LPG Gas Cylinders. PW5 further states that he has seized the Domestic LPG Gas Cylinders from the house of accused in the presence of panch witnesses under the panchanama Ex.P1 and thereafter, he has filed complaint Ex.P2.
14. PW6, RTO Inspector who was with PW5 has also deposed about the seizure of 22 Domestic LPG Gas Cylinders from the house of accused under the
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CRL.R.P No.100047 OF 2015 panchanama Ex.P1 and he identified his signature as per Ex.P1(d).
15. If the above referred evidence of PWs 5 and 6 is appreciated with reference to the seizure panchanama Ex.P1 and the complaint allegations Ex.P2, it would go to show that 22 Domestic LPG Gas Cylinders were alleged to have been found in the house of accused. The same were seized under the panchanama Ex.P1. The evidence of PWs 5 and 6 never speak anything about PC No. 317 of Brucepet police station, Bellary having accompanied them at the time of seizure of 22 Domestic LPG Gas Cylinders from the house of accused. The recitals of panchanama at Ex.P1 also does not speak about PC No. 317 of Brucepet Police Station, Bellary was deputed along with them for the purpose of inspection. However, the signature of PC No. 317 of Brucepet Police station has been obtained on the panchanama Ex.P1. It is true that there is reference of Wajeed, police constable, PC No.317 was with complainant and PW6 at the time of inspection. However, the said Wajeed, PC No. 317 of Brucepet police station,
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CRL.R.P No.100047 OF 2015 Bellary has not been examined by the prosecution. The examination-in-chief of Investigating Officer PW.4 is also silent for having deputed PC.No.317 of Brucepet Police Station along with PW.5 and 6 for the purpose of inspection and the prosecution has not produced any documents in this regard.
16. The prosecution also claims that as per the panchanama Ex.P1, one Saroja was in the house. PW5 has deposed to the effect that they went to the house of Nehru s/o.Sandhi Mallayya and enquired about the availability of Domestic LPG Gas Cylinders, who in turn enquired said Saroja and she alleged to have said that the Domestic LPG Gas Cylinders are available. The prosecution first of all has not produced any document to show that the house wherein 22 Domestic LPG Gas Cylinders were found belongs to the accused and in what way the said Saroja is connected with the accused. PW6 does not refer anything about the presence of Saroja with whom accused alleged to have enquired about the availability of Domestic LPG Gas Cylinders. Therefore, the
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CRL.R.P No.100047 OF 2015 evidence of PWs 5 and 6 regarding the seizure of 22 Domestic LPG Gas Cylinders from the house of accused is very much doubtful.
17. In terms of Section 2A of The Essential Commodities Act, 1955 (hereinafter referred to as 'EC Act'), 'Essential Commodity' means a commodity specified in the Schedule. In terms of Section 2A (2)(a) (b), the Central Government may, if it is satisfied that it is necessary so to do in the public interest for reasons to be specified in the notification published in the Official Gazette, amend the schedule so as to add a commodity to the schedule and remove any commodity from the said Schedule in consultation with the State Governments. In terms of the Schedule at Sl.No.5 appended to the Act petroleum and petroleum products are declared as Essential Commodities. The search and seizure of essential commodities i.e. in the present case, the petroleum products has to be in accordance with the procedure contemplated under Order 2000. In terms of Section 13 of the Order 2000, the procedure for search and seizure
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CRL.R.P No.100047 OF 2015 has been enumerated and the same is reproduced for ready reference :
13. Power of entry, search and seizure:
(1) Any Officer of the Central or the State Government not below the rank of Inspector 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 of 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.
(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
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CRL.R.P No.100047 OF 2015 distribution system and or by the consumer registered by them.
On plain reading of the said proviso, it is evident that in terms of Section 13(1) of the Order 2000, any officer of the Central or State Government not below the rank of the Inspector duly authorized by a general or 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 the Sales Officer, authorized by the Central Government are the only Authorised persons to conduct search and seizure of the petroleum products. The Food Inspector PW5 is not the authorized officer under Order 2000 to conduct search and seizure in terms of Section 13(1) of the Order 2000. The prosecution has also not produced any documents evidencing authorization of PW1 conferring the authority of PW1 to exercise the power of search and seizure in terms of Section 13(1) of Order 2000. Therefore, the search and seizure effected by PW5 for having seized 22 Domestic LPG Gas Cylinders from the house of accused is without any authority of law.
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CRL.R.P No.100047 OF 2015
18. Learned counsel for the revision petitioner has contended that according to the evidence of PWs 5 and 6, 22 Domestic LPG Gas Cylinders were seized from the house of accused on 20.11.2011. However, the evidence of PW4 would go to the show that he has subjected the seized property under PF to the Court on 23.11.2011 and thereafter, he entrusted the same to Food and Civil Supplies on 24.11.2011. There is a delay of three days in reporting the seizure of 22 Domestic LPG Gas Cylinders alleged to have seized from the house of accused to the jurisdictional Magistrate. The prosecution has offered no any explanation for the said delay. In support of such contention, reliance is placed on the judgment of the Hon'ble Kerala High Court in Kadungoth Alavi vs. State of Kerala reported in 1982 Crl.L.J. 94. In the said case, the seizure of MO.1 shirt was on 15.12.1979 and reached the Magistrate Court only on 21.12.1979. The prosecution has given no explanation for the delay. Such delay is contrary to the directions contained in Section 102(3) of
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CRL.R.P No.100047 OF 2015 Cr.P.C. Further, the panch witnesses have not supported the case of the prosecution. Therefore, on the face of such irregularities, the recovery MO.1 shirt cannot be made use against the accused.
19. In the present case also, there is a delay of 3 days in reporting the seizure to the Magistrate Court, since the permission of Magistrate is obtained only on 23.11.2011 though the seizure was conducted on 20.11.2011. The prosecution has offered no explanation for the said delay.
20. The Trial Court has convicted the accused for the offence under Section 3 r/w. Section 7 of the EC Act and also for the offence under Section 3(5) of the Order 2000 and accordingly, imposed separate sentence.
21. In terms of Section 3(5) of the Order 2000, as extracted by the Trial Court would go to show that no person shall fill any cylinder with liquefied petroleum gas or transfer liquefied petroleum gas from one cylinder to another cylinder or from one container to another container unless authorized to do so by the Chief
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CRL.R.P No.100047 OF 2015 Controller of Explosives to the Government of India. The said proviso is not a penal provision which can attract imposition of sentence. The imposition of sentence is only governed under Section 3 r/w. Section 7 of the EC Act. Therefore, conviction of the accused under Section 3(5) of the Order 2000 and imposition of sentence cannot be legally sustained.
22. In view of the reasons recorded as above, the prosecution has failed to prove the search and seizure of 22 Domestic LPG Gas Cylinders from the house of the accused under the panchanama Ex.P1. The prosecution has also not produced any document evidencing the authority of PW5 to conduct search and seizure in terms of Section 13(1) of Order 2000. The courts below without taking into consideration the legal requirement and strict proof of search and seizure in terms of Section 13(1) of the Order 2000 proceeded to record finding holding the accused is guilty of the offences alleged against him cannot be legally sustained for the reasons recorded as
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CRL.R.P No.100047 OF 2015 above. Therefore, interference of this Court is required. Consequently, proceed to pass the following :
ORDER Revision Petition filed by revision petitioner/accused is hereby allowed.
The judgment of the First Appellate Court on the file of the Principal Sessions Judge at Bellary in Criminal Appeal No.70/2012 dated 05.01.2015 which confirmed judgment of Trial Court on the file of First Additional Civil judge and JMFC, Bellary in C.C.No.381/2012 dated 12.6.2012 are hereby set aside.
Accused is acquitted for the offence under Section 3 r/w. Section 7 of the EC Act.
The bail bonds of accused and that of his surety shall stands discharged.
The fine amount, if any, paid by the accused is ordered to be refunded.
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CRL.R.P No.100047 OF 2015 Registry is directed to transmit the copy of this judgment along with the records to the Trial Court.
SD/-
JUDGE rs