State of Karnataka vs Appaiah Laxminarayana

This revision is by the State. It is directed against the order dt. 21-7-1983 of the JMFC, Chintamani in C.C. 337 & 338/81 on his file. By that order he has discharged the respondent who was the accused in the case.

The Court below had initiated the said proceeding against the respondent on the report (charge-sheet) laid by the Chintamani Police against him with the allegation that in his dealings in edible oil seeds he violated the provisions of the Karnataka Edible Oil Seeds Dealers Licensing Order, 1977 (the order) and thereby had committed an offence punishable under S. 7 of the Essential Commodities Act, 1955 (E.C. Act).

The Court below has discharged the accused mainly on two grounds. The first ground is that the police had no powers to investigate into any alleged offence under the Act at all and that power is only vested in the officers authorised by the State Government under Clause 17 of the Order. The second ground is, that even otherwise, in the matter of the search and seizure of the essential commodity in question, the C.P.I. had not complied with S. 165 and the other relevant provisions of the Cr.P.C., and therefore the investigation was vitiated and consequently the very proceeding was vitiated.

The learned State Public Prosecutor challenging the impugned order argued that the Court below had wholly misconstrued the provisions of the Act and had committed a grave error in discharging the accused. He places strong reliance on a decision of the Supreme Court in Satya Narain Musadi and Others Vs. State of Bihar, in support of his contention that the police had powers to investigate into an offence of this nature and place their report in the Court. The learned counsel for the accused, on the other hand, supported the order of the Court below and places reliance on K.L. Subbayya Vs. State of Karnataka, and The State of Rajasthan Vs. Rehman, in support of the second ground relied upon by the Court below.

According to me the order of the Court below discharging the accused is wholly unsustainable and deserves to be quashed. In its view that the police had no powers to investigate into an offence of this nature, there is absolutely no merit. S. 10A of the E.C. Act makes every offence punishable under the Act a cognizable one and cognizable within the meaning assigned to that term in the Cr.P.C. 1973 (see also S. 2(ia) and (f) incorporated into the Act by S. 3 of the Essential Commodities (Special Provisions) Act, 1981. As observed by the Supreme Court in Satya Narain Musadi and Others Vs. State of Bihar, a report submitted by the police after investigating into an offence arising under the Act satisfies the requirements of S. 11 of the Act and the Court can take cognizance of the offences alleged in such report. There is also no merit in the contention of the counsel for the respondent-accused that in view of R. 17 of the Rules, the police were precluded from investigating into any offence for alleged violation of the provisions of the order. Clause 17 of the Order only enables the officials named therein also to investigate into alleged violations of the provisions of the order, but thereby it cannot be said that that provision has taken away the powers of the police in that behalf. Clause (17) reads thus :

Powers of entry, search, seizure, etc. :-

(1) The licensing authority or any other officer authorised by the State Government in this behalf may, with a view to securing compliance with this order or to satisfying himself that the provisions of this order have not been contravened -

(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 the conditions of any licence issued thereunder has been, or is about to be committed, to produce any book accounts or other documents showing transactions relating to such contraventions and take or cause to be taken extracts from or copies of such book accounts or other documents produced before him;

(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 licence issued thereunder has been, is been, or is about to be committed.

(c) search, seize and remove stocks of and the animals, vehicles, vessels or other conveyances used in carrying the said Edible Oilseeds in contravention of the provisions of this order, or of the conditions of the licence issued thereunder, and thereafter take or authorise the taking of all measures necessary;

"(i) for securing the production of stocks so seized before the Collector as required by S. 6-A or in a Court; and

(ii) for securing the production of the animals, vehicles, vessels or other conveyances so seized in a Court : and for their safe custody pending such production.

(2) The provisions of S. 100 of the Cr.P.C. 1973 (Act 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this Clause."

The above clause deals with powers of entry, search and seizure etc. This clause will have to be read along with the notification issued by the State Government dt. 15-12-1977 in its No. FFD 430 FCS 77 (III). As already stated, this clause only enables the officials named therein, in addition to the police who have suo motu powers to investigate into these offences, to investigate, and in the process, to search, seize etc., of the essential commodity in case of an apprehended breach of the provisions of the order. That this is so is also clear from S. 4 of the Act which says that the Central or State Government may empower, in any order issued under S. 3 of the Act, with such powers and duties as are necessary for proper enforcement of the order. There is another view of looking at the matter also. When the Act itself has made the violation of an order issued under S. 3 a cognizable offence enabling the police to suo motu investigate into any offence arising thereunder, the said power cannot be taken away by an order issued under the Act.

Now, to consider the second ground on which the impugned order is based. In K.L. Subbayya Vs. State of Karnataka, the search made was by an Excise Inspector acting under the Karnataka Excise Act. S. 53 and S. 54 of that Act place certain constrains on the powers of the authorities in the matter of making searches. The Court set aside the conviction and sentence imposed on the appellant in view of the fact that the alleged search in that case was in flagrant violation of those provisions. The Court observes that the valuable safeguards provided to the citizen in the matter of the search under Ss. 53 and 54 had been violated by the authority concerned and therefore search was illegal and void. In The State of Rajasthan Vs. Rehman, the search made was by an authorised officer under the Central Excises and Salt Act, 1944. S. 18 of that Act had made S. 165 of the Cr.P.C. applicable to searches to be conducted by the authorities. On facts the Court felt that S. 165 of the Cr.P.C. had not been complied with in that case and therefore the search was invalid.

The case on hand is clearly distinguishable on facts from those cases. The Essential Commodities Act, 1955 does not contain any provision making applicable all the provisions of the Cr.P.C. in investigations to be conducted by the concerned authorities. S. 12A which has been incorporated into that Act by S. 11 of the Essential Commodities Special Provisions Act, 1981 only makes the provisions of the Cr.P.C. applicable to the proceeding initiated before Special Court trying the offence arising under the E.C. Act. Besides this, Clause 17 of the Order and similar clauses appearing in other such Orders themselves do contain a provision as to how search and seizure effected by the authority concerned for alleged violation of those orders should be made. Sub-clause (2) of Clause 17 extracted above may be seen. It says that the provisions of S. 100 Cr.P.C., relating to search and seizure shall, as far as may be, apply to searches and seizures under this clause. S. 100 of the Code provides as to how search should be conducted in places which are closed. If the intention of the authority who had issued this order was that in addition to S. 100 of the Code, other relevant provisions of the Code dealing with the question of searches also should apply to searches conducted in investigations made to detect suspected violations of the Order, such would have been the clause. In the circumstances, it cannot be said that the search conducted or seizure made by the police in the instant case, not being in compliance with S. 165 of the Code, was bad or illegal. There is no merit in that contention.

Accordingly, for reasons stated above, this petition is allowed. The order of the Court below discharging the accused is set aside. The matter is remitted to the Court below to proceed in accordance with law and to dispose of the same expeditiously. Let a copy of this order be transmitted to the Court below in ten days time.

Petition allowed.