Judgment:
(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to direct the R1 the Deputy Commissioner, Food and Civil Supplies, Chitradurga District, Chitradurga to immediately release the seized 350 bags of rice and the seized two transport goods vehicles bearing Registration Nos.KA-12-A-0479 and KL-13-R-994, which were produced before him as per the property form bearing No.43/2009 in Cr.No.435/2009.)
1. By virtue of an order dated 12.3.2010, the matter is referred to Division Bench for decision. In the present case, whether the action of the authorities of the respondent-State following the provisions of Karnataka Essential Commodities (Public Distribution Control) Order, 1992 (hereinafter referred to as ‘1992 order’ for short) is repugnant and therefore contravenes the provisions of Public Distribution System (Control) Order, 2001 (hereinafter referred to as ‘2001 Order’ for short) of the Central Government has to be seen.
2. The brief facts that lead to referring the matters to the Division Bench by the learned Single Judge are as under:
On 15.10.2009 at about 10 a.m. near Metikurke forest on N.H-4 within the jurisdiction of Chitradurga district, the Police of Hiriyur seized 350 bags of rice alongwith two lorries bearing Registration Nos.KA-12-A-0479 and KL-13-R-994. FIR came to be lodged by the concerned Circle Inspector of Police, Hiriyur and accordingly Crime No.435/2009 came to be registered for the offences punishable under sections 3 and 7 of the Essential Commodities Act (‘Act’ for short) and so also Section-420 of IPC. Subsequent to the seizure, the authorities concerned followed up the matter by appropriate procedure contemplated under the Act. The petitioners-owners filed an application for release of the lorries before the Deputy Commissioner on 11.11.2009. In application, the petitioners had also sought for release of 350 bags of rice. After investigation, a charge sheet came to be filed and the matter is pending in C.C. No.756/2009 for trial of offences punishable under sections 3 and 7 of the Act and also section-420 of IPC. After filing of the charge sheet, the validity of the charge sheet also came to be questioned in Criminal Petition No.6311/2009 under section-482 of Code of Criminal Procedure and the matter came to be admitted on 9.12.2009.
3. When the matter was pending before the Deputy Commissioner, the petitioners herein have approached this Court for issuance of a writ of mandamus directing the first respondent-Deputy Commissioner, Food and Civil Supplies, Chitradurga district, Chitradurga to immediately release 350 bags of rice and also the seized two transport vehicles mentioned above as this is the alternate, efficacious and speedy legal remedy.
4. Before the learned Single Judge after referring to the procedure adopted by the concerned Police under 1992 Order, the petitioners contended that it contravenes the provisions of 2001 Order as the same was not at all followed by the authorities for the search and seizure and therefore their actions illegal ab initio. In that context, several reported and unreported Judgments came to be relied upon by the learned counsel for the petitioners to contend that Police have no jurisdiction to search and seize the lorries which were transporting rice as stated above.
5. The learned Judge after referring to several decisions of the Apex Court, this High Court and various other High Courts was of the opinion that the action taken by the officials concerned under 1992 Order was not at all repugnant to the procedure contemplated under 2001 Order and moreover the offence punishable under section-420 of IPC being a cognizable offence, it was open for the Police to search, seize and investigate into the said crime. The learned Judge opining that 1992 Order not being in contravention of 2001 Order and the fact that offence under Section-420 of IPC was involved in the case, differed from the opinion of another learned Judge in Crl.P.No.4481/2003 c/w Crl.P.1191/2004 disposed of on 22.7.2004 and proceeded to say that he would disagree and differ with the reasons assigned by the learned Single Judge in the above criminal petitions and referred the matter to Division Bench for consideration.
6. In Crl.P.No.4481/2003 c/w Crl.P.1191/2004 disposed of on 22nd July 2004, the learned Single Judge by placing reliance on previous judgments in the similar situation, had observed at paragraphs 5 and 6 as under:
“Para-5: The orders passed under Section 3 of the Essential Commodities Act under which it is alleged that the petitioners have committed offences show as rightly pointed out by the petitioners that those offences could be investigated only by the authority defined under the order and the police is excluded. This fact is not disputed.
“Para-6: In view of the fact that the contentions of the petitioner are covered by a Division Bench decision of this Court reported in 1987 (1) KLJ 236 (State of Karnataka .Vs. P.M. Nageshwara Rao) and in similar circumstances it was held that the offences committed under the Act are cognizable but the supervisory power regarding enforcement of the Orders are specifically given to other officers other than the police and therefore the police officers should not have taken the responsibility of supervising enforcement of the Order. In another case, the learned single Judge in 2003(4) KCCR 2522 (Mr. BALAKRISHNA and OTHERS Vs. STATE BY THE P.S.I. OF UPPINANGADY POLICE STATION) under similar circumstances has held that in respect of an order passed under Section 3 of the Essential Commodities Act the Search and seizure of the petroleum products by the Inspector of Police is illegal and the FIR registered on the basis of such search and seizure is liable to be quashed and in view of the similar facts and circumstances of these cases and following the above judgments, these two criminal petitions have to be allowed. Accordingly, both the Criminal petitions are allowed and the impugned FIRs are quashed.”
7. Learned counsel for the petitioners relies upon Clause-10 of 2001 Order which pertains to power of search and seizure. Clause-2(c) of the 2001 Order refers to the ‘authority’ and therefore the authority who seized the goods along with the vehicles in question was not an officer envisaged under clause-2(c) of the 2001 Order, therefore the very search and seizure is illegal is the contention.
8. Learned counsel for the petitioners relies on Clause-6 of the Order issued by Notification bearing No. GSR 104(E) dated 15.2.2002 styled as “(The) removal of (Licensing requirements, Stock limits and Movement Restriction) on specified foodstuffs Order, 2002” (‘2002 Order’ for short) and according to Clause-6 nothing contained in 2002 Order shall affect the operation of 2001 Order issued by the Central Government and orders of the State Government issued in pursuance thereof.
9. The following clauses are relevant for the purpose of understanding the controversy raised in these writ petitions:
Clauses 10 and 14 of the 2001 Order read as under:
“Clause-10: Power of search and seizure:
(1) An authority authorised by State Government, shall be competent to inspect or summon such records or documents as may be considered by him necessary for examination and take extracts or copies of any record or documents produced before him.
(2) If the said authority has reasons to believe on receipt of a complaint or otherwise that there has been any contravention of the provisions of this Order or with a view to securing compliance with this Order, he may enter, inspect or search the fair price shop or any premises relevant to transactions of business of the fair price shop.
(3) The said authority may also search, seize or remove such books of accounts or stocks of essential commodities where such authority has reason to believe that these have been used or will be used in contravention of the provisions of this order.
(3A) The authority conducting search and seizure under sub-clause (3) shall inform the State Government or an officer authorised by it in this behalf, the details of the search conducted and the stocks of essential commodities so seized by them under that clause.
(4) The provisions of Section 100 of the Code of Criminal Procedure, 1973, relating to search and seizure shall so far as may be, apply to search and seizure under this order.
Clause-14: Provisions of the Order to prevail over previous Orders of State Government.
The provisions of this Order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement.”
Clause-19 of the 1992 Order reads as under:
Clause-19: Powers of entry, search, seizure, etc., (1) The director of Food and Civil Supplies, the Joint Directors of Food and Civil Supplies, or the Tahsildar of a Taluk, the Authorised Authority or any other officer of the Department of Food and Civil Supplies not below the rank of a Food Inspector within their jurisdiction may with such assistance, if any, as he thinks fit and if he has reason to believe that there is or has been any contravention of the provisions of this order or with a view to securing compliance with this order or to satisfying himself that there is or has been any contravention of the order:
(a) require the owner, occupier or any other person in-charge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any authorization, issued thereunder has been, is being or is about to be committed, to produce any books, accounts or other documents showing transactions relating to such contraventions;
(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order or of the conditions of any authorisation issued thereunder has been, is being or is about to be committed.
(c) take or cause to be taken extracts from or copies of any documents showing transactions relating to such contraventions which are produced before him;
(d) search, seize and remove books, accounts and other documents and stocks of essential commodity and the animals, vehicles, vessels or other conveyance used in carrying the said essential commodities in contravention of the provisions of this order, or of the conditions of the authorisation issued thereunder and thereafter take or authorise the taking of all measures necessary for securing the production of stocks, of essential commodity and the animals, vehicles, vessels or other conveyance so seized, in a Court for their safe custody pending such production.
(2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating search and seizure shall so far may be, apply to searches and seizures under this clause.”
Clause-3 and 6 of the 2002 Order read as under:
Clause-3: With the coming into effect of this Order any dealer may freely by, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarse grains, sugar, edible oilseeds edible oils, pulses, gur, wheat products (namely maida, rava, suji, atta, resultant atta and bran) and hydrogenated vegetable oil or vanaspati and shall not require a permit or license therefore under any order issued the Essential Commodities Act, 1955.
Clause-6: Nothing contained in this Order shall affect the operation of the Public Distribution System (Control) Order, 2001 issued by the Central Government and orders of the State Government issued in pursuance thereof.
10. We have gone through the 1992 Order of the State Government, 2001 Order and 2002 Order issued by the Central Government. Reading of the Clause-6 of the 2002 Order reveals that nothing contained in the 2002 Order shall effect the operation of the 2001 Order issued by the Central Government and orders of the State Governments issued in pursuance thereof. Therefore though there is no restriction or requirement of a permit or licence under any Order issued under the Act for transportation, distribution, disposal etc. of rice and other items mentioned in Clause-3 of 2002 Order, such concession would not affect the operation of 2001 Order. Therefore we have to examine whether there is conflict between 1992 Order of the State Government and 2001 Order of the Central Government. Reading of Clause-10 of the 2001 Order makes it clear that an officer who is authorised by the State Government alone will be competent to inspect, search and seize the property under the said Order. Clause-14 of 2001 Order says that provisions of 2001 Order would prevail over the previous orders of the State Government, in case such Order of the State Government runs contrary to any of the terms of 2001 Order. Clause-19 of 1992 Order of the State Government refers to powers of entry, search, seizure etc., as stated above. It indicates the authorities who are authorised and has got jurisdiction to follow the procedure contemplated under 1992 Order of the State Government. The entire Clause-19 of 1992 Order refers to the procedure for the purpose of entry, search and seizure. Under Clause-19 of 1992 Order, the Director of Food and Civil Supplies, the Joint Directors of Food and Civil Supplies or the Tahsildar of a taluk, the Authorised Authority or any other officer of the Department of Food and Civil Supplies not below the rank of Food Inspector have got jurisdiction to enter, search and seize if any contravention of 1992 Order comes to their notice. Whereas Clause-10 of 2001 Order does not indicate any particular authority, who is entitled to exercise the power, but only says an authority authorised by State Government shall be competent to inspect, search and seize. Therefore if the authority notified under Clause-19 of 1992 Order acts within its jurisdiction for the implementation of 1992 Order, it cannot be said that such authority is acting contrary to Clause-10 of 2001 Order. Therefore there is no repugnancy or contravention in between Clause-10 of 2001 Order and Clause-19 of 1992 Order. In other words, Clause-10 of 2001 Orders refers to an authority authorised by the State Government and Clause-19 of 1992 Order indicates who can be such Authorised Authority. In the absence of any repugnancy or contradiction between the two clauses as stated above, question of Clause-14 of 2001 Order would not come into play. Therefore both Clause-10 of 2001 Order and Clause-19 of 1992 Order are coordinating with each other and there is no conflict. Hence question of Caluse-14 of 2001 Order being applied to the facts of this case does not arise.
11. Item No.33(b) of the List III of 7th Schedule of Constitution of India deals with foodstuffs including edible oil seeds and oils. Article-254 of the Constitution refers to the position if inconsistency between laws made by Parliament and laws made by the Legislatures of States exists. Reading of Article-254 makes it clear that if any of the provision of law i.e. legislation made by the Legislature of a State is contrary or repugnant to any legislation made by Parliament, which Parliament is competent to enact, or to any existing legislation with respect to one of the matters enumerated under the Concurrent List of the 7th Schedule, in such situation the law made by the Parliament alone would prevail irrespective of the law passed by the Parliament was before or after the law made by the State. In certain situation, the existing law of the State would prevail to the extent it is not repugnant to the law of Parliament and the law made by the State to the extent it is repugnant is void. In the present case, we are not faced with a situation where the State legislation is either repugnant or contravening the law of the Parliament. Therefore question of holding 2001 Order made by the Central Government as prevailing over the 1992 Order of the State Government would not arise. The law within which the Authorised Authority had to act and proceed was the procedure contemplated in the 1992 Order. In the present case, as already stated above apart from the contravention of the Essential Commodities Act, Sectoin-420 of IPC is also invoked.
12. Learned counsel for petitioners relies upon the following reported/unreported judgments:
1. Unreported decision of this Court in the case of PURUSHOTTAM AND OTHERS .vs. STATE OF KARNATAKA in Crl.P.No.6311/2009 disposed of on 19.4.2010.
2. ILR 2003 KAR 4548 (BALAKRISHNA and OTHERS .VS. STATE BY THE P.S.I. OF UPPINANGADY POLICE STATION)
3. AIR 2001 SC 137 (ROY V.D. .vs. STATE OF KERALA)
4. 1987 (1) KAR.LJ 236 (STATE OF KARNATAKA .VS. P.M. NAGASHWARA RAO and ANOTHER)
5. Unreported decision of this Court in the case of RAHIM AND ANOTHER .vs. STATE OF KARNATAKA in Crl.P.No.4481/2003 c/w Crl.P.1191/2004 disposed of on 22.7.2004.
6. Unreported decision of this Court in the case of FAROOQULLA KHAN .VS. STATE OF KARNATAKA in Crl.P.No.2693/2004 disposed of on 17th November 2004.
7. Unreported decision of this Court in Crl.P.No.3043/2004 disposed of on 17.11.2004.
8. Unreported decision of this Court in the case of MOHAMED MUJEEBULLA .vs. STATE OF KARNATAKA in Crl.P.No.3044/2004 disposed of on 17.3.2005.
9. Unreported decision of this Court in the case of NAZEER AHAMED .vs. STATE OF KARNATAKA in Crl.P.No.3374/2005 disposed of on 17.3.2005.
10. Unreported decision of this Court in the case of SRI RAVI AND ANOTHER .VS. STATE OF KARNATAKA in Crl.P.No.3375/2006 disposed of on 21.8.2009.
11. (2007)5 SCC 769 (KAILASH PRASAD YADAV AND ANOTHER .vs. STATE OF JHARKHAND AND ANOTHER)
13. Learned counsel for the petitioners relies upon the above decisions to contend that in all these matters either under Essential Commodities Act or similar provisions, the Courts had quashed the registration of cases on the ground that the Police had no authority to search or seize the lorries which were transporting rice and investigate the matter. It is pertinent to mention that in all the above cited cases, the facts are different from the facts of the present case. In other words, no crime was registered against the accused in any of the above cited cases for any of the cognizable offences under IPC. Even otherwise, material seized during the search in all the above said matters was not meant for distribution under Public Distribution System in pursuance of the 1992 Order of the State Govt. That is to say in none of the above matters, interpretation of provisions of 1992 Order arose for consideration as in the present case. In none of those matters neither contravention nor repugnancy between the 1992 Order and 2001 Order fell for consideration. Therefore none of the above judgments would come to the assistance of the petitioners.
14. On the other hand in the case of V.A. ABDUL KHADER and OTHERS .vs. STATE OF KARNATAKA reported in ILR 2005 KAR. 6069 and also in the case of PRAVIN CHANDRA MODY .vs. STATE OF ANDHRA PRADESH reported in AIR 1965 SC 1885, it was opined that it was open for the Police to search, seize and investigate into the matter as FIR was not only lodged for violation of certain provisions of the Act, but also cognizable offence falling under IPC. As a matter of fact the Bombay High Court has also concluded on the same lines in the case of CHANDRAKANT PINAYAMAL MOTWANI .vs. STATE OF MAHARASHTRA reported in 2000 Crl.LJ 1935, wherein the similar clause as that of Clause-19 of 1992 Order was in question.
15. In view of the above discussion and reasoning, we are of the opinion in the case on hand the authority which exercised jurisdiction under Clause-19 of 1992 Order was one of the authorities enumerated under 1992 Order and further the authority was competent officer to deal with an offender for an offence punishable under section-420 of IPC. Therefore there is no contravention or repugnancy between 1992 Order and 2001 Order. Hence the question of considering the relief sought by the petitioners in the present case on the ground of repugnancy or contradiction between the Order of the Central Government and the Order of the State Government does not arise and so also considering the prayer for a direction to the Deputy Commissioner, Food and Civil Supplies, Chitradurga for release of 350 bags of rice and two transport vehicles seized by him does not arise.
16. During the pendency of consideration of the above reference, the learned counsel appearing for the petitioners brought to our notice that C.C.No.756/2009 on the file of the Civil Judge (Jr.Dn.) and JMFC, Hiriyur, Chitradurga district came to be quashed in Criminal Petition No.6311/2009 by order of this Court dated 19.4.2010 wherein the concerned Police were directed to release the vehicles and the seized rice by them in favour of petitioners 3 and 4 therein. He further contends that only two lorries were returned, but batteries of the lorries and tarpaulins were not handed over and so far as rice is concerned, petitioners were directed to approach the Deputy Commissioner, Chitradurga district.
17. We are not concerned with the quashing of Criminal Case before the JMFC or the action of the Deputy Commissioner in detaining the lorries resulting in loss to the petitioners. If petitioners are entitled to claim damages on account of other litigation ending in their favour, they are entitled to approach the proper forum for the said remedy. The reference is only to consider if there is any repugnancy between 1992 Order and 2001 Order which would lead to illegal exercise of power by the so called Authorised Officer at the initial stage.
With these observations, the reference is answered and the writ petitions are dismissed.