Madras High Court
G.Jagannathan vs State Rep. By on 24 June, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.06.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.R.C(MD)No.107 of 2007
AND
Crl.R.C(MD)No.111 of 2007
AND
Crl.R.C(MD)No.124 of 2007
and
Crl.R.C(MD)No.134 of 2007
G.Jagannathan : Petitioner in
Crl.R.C(MD)No.107 of 2007
Gopal : Petitioner in
Crl.R.C(MD)No.111 of 2007
Devarajan : Petitioner in
Crl.R.C(MD)No.124 of 2007
Rajamani : Petitioner in
Crl.R.C(MD)No.134 of 2007
Vs.
State rep. By
The Inspector of Police,
Central Investigation Unit
(Prohibition Offences),
Tirunelveli Zone.
Now pending with
Inspector of Police,
East Police Station,
Virudhunagar.
(Crime No.129 of 1997). : Respondent in all Crl.R.Cs.
PRAYER
Revisions filed under Section 397 read with Section 401 of the Code
of Criminal Procedure, to set aside the Judgments passed by the learned
Additional District and Sessions Judge, Fast Track Court, Virudhunagar, in
C.A.Nos.52, 49, 51 and 53 of 2006, dated 22.02.2007, confirming the
conviction and sentence passed by the learned Judicial Magistrate No.II,
Virudhunagar, in C.C.No.118 of 1998, dated 25.08.2006.
!For Petitioner in : Mr.D.Saravanan
Crl.R.C(MD)No.107 of 2007
For Petitioner in : Mr.G.Mariappan
Crl.R.C(MD)No.111 of 2007
For Petitioner in : Mr.V.Ilanchezian
Crl.R.C(MD)No.124 of 2007
For Petitioner in : Mr.M.R.Sreenivasan
Crl.R.C(MD)No.134 of 2007 (Legal Aid Counsel)
^For Respondent in all : Mr.C.Mayil Vahana Rajendran,
Crl.R.Cs. Additional Public Prosecutor.
:COMMON ORDER
The petitioners are the accused 1,2,5 and 6 in C.C.No.118 of 1998 on the file of the learned Judicial Magistrate No.II, Virudhunagar. One Pandurengan was the third accused and Venkatesan @ Ravi was the fourth accused in the case. All these six accused stood charged for offences under Sections 420, 109 read with 34 I.P.C. and Rules 3 and 9 of the Tamil Nadu Mollasses Control and Regulation Rules, 1958. By Judgment, dated 25.08.2006, the Trial Court convicted all the six accused under Section 11 of the Tamil Nadu Prohibition Act and under Sections 420, 109 read with 34 I.P.C. and sentenced them to undergo simple imprisonment for three months for the offence under Section 11 of the Tamil Nadu Prohibition Act and to pay a fine of Rs.250/- each, in default, to undergo simple imprisonment for one month and to undergo simple imprisonment for two years and to pay a fine of Rs.750/- each, in default, to undergo simple imprisonment for three months for the offence under Sections 420, 109 read with 34 I.P.C.
2. Challenging the said conviction and sentence, the accused 2 and 4 filed Criminal Appeal No.49 of 2006, the third accused filed Criminal Appeal No.50 of 2006, the fifth accused filed Criminal Appeal No.51 of 2006, the six accused filed Criminal Appeal No.52 of 2006 and the first accused filed Criminal Appeal No.52 of 2006. All these appeals were heard by the learned Additional District and Sessions Judge, Fast Track Court, Virudhunagar and by Judgment, dated 22.02.2007, the Lower Appellate Court dismissed all the appeals, thereby confirming the conviction and sentence imposed by the Trial Court. Challenging the same, the first accused has come up with Crl.R.C(MD)No.134 of 2007, the second accused has come up with Crl.R.C(MD)No.111 of 2007, the fifth accused has come up with Crl.R.C(MD)No.124 of 2007 and the sixth accused has come up with Crl.R.C(MD)No.107 of 2007. The accused 3 and 4 have not preferred any revision, as they have passed away. That is how, all these revisions are before this Court, for disposal.
3. The case of the prosecution, in brief, is as follows:
The sixth accused in this case, is the owner of an industry known as Sree Ganesh Industries. The said industry had license under the Tamil Nadu Molasses Control and Regulation Rules, 1958 under Form ML-4 and Form ML-6 for possession and use of molasses and for transport of molasses within the State. According to the further case of the prosecution, the sixth accused used to purchase molasses from Aruna Sugar Mill at Pennagaram, transport the same to Virudhunagar, to use the molasses for the purpose of manufacture of cattle feed. It is alleged that between 30.01.1997 to 31.03.1997, the sixth accused had purchased a total quantity of 159.940 tonnes of molasses from Aruna Sugars at Pennagaram, transported the same to Virudhunagar, possessed the same and used the same for the purpose of manufacture of cattle feeds. The said quantity of molasses was transported in 14 tanker lorry loads. So far as, six loads are concerned, they were purchased, possessed and transported during the license period. The license was suspended by the competent authority w.e.f. 07.03.1997. Therefore, on and after 07.03.1997, the sixth accused, as per the Tamil Nadu Molasses Control and Regulationis Rules, 1958, should not have transported and used the molasses. But, out of 159.940 tonnes of molasses purchased, transported and used by the sixth accused between 30.01.1997 to 07.03.1997, eight loads were purchased, transported and possessed after 07.03.1997, i.e., during non-license period.
4. It is alleged that the sixth accused gave a complaint to the District Revenue Officer on 08.04.1997 that he had suspicion that using duplicate of the licenses issued to him, which were later on suspended, some unscrupulous elements were transporting molasses. On the said petition, the District Revenue Officer directed P.W.2, a Revenue Officer to hold an enquiry. He held enquiry, during which, he inspected Aruna Sugars, collected documents and submitted a report on 21.04.1997, reporting thereby that there was violation of the above Rules during non-license period in as much as 8 loads of molasses had been purchased by the sixth accused, transported and used by him. Based on the report, P.W.1 made a complaint to the police, upon which, the present case was registered on 07.08.1997.
5. During the course of investigation, more impartantly, Ex.P.2 to P.19 were recovered, which are all either letters/ communications or ledgers maintained by Bhagavathy Traders Company, Aruna Sugars, etc. Based on the same, the respondent filed final report before the learned Judicial Magistrate No.II, Virudhunagar, upon which, the learned Judicial Magistrate No.II, Virudhunagar framed charges. The accused denied the charges. In order to prove the case, on the side of the prosecution, as many as, 11 witnesses were examined and 20 documents were exhibited.
6. Out of the said witnesses, P.W.1 is the Divisional Excise Officer at Virudhunagar. He has spoken about the report submitted by P.W.2 and the complaint made by him. P.W.2 has spoken about the details of the enquiry held by him, during which he found that there were violations of Rule 3 and 9 of the Rules. P.W.3 is a manufacturer of cattle feed and he has, in general terms, spoken about the mode of purchase of molasses, transport of the same and user of the same by similar industries. He has not spoken anything specifically with reference to the accused. P.Ws.4 to 7 have turned hostile and have not supported the case of the prosecution, in any manner. P.W.8, Dr.Balakrishnan has stated that molasses is used for manufacture of cattle feeds. P.Ws.9 and 10 have spoken about the issuance of license and the suspension of license w.e.f. 07.03.1997 against the sixth accused. P.W.11 has spoken about the investigation.
7. Out of the 20 documents exhibited, Ex.P.14, is the letter said to have been written by the accused Rajamani (A.1) to the third accused on 10.01.1997. Ex.P.15, is the letter written by the first accused to the General Manager of Aruna Sugars on 10.01.1997, requesting him to deliver molasses. Ex.P.16, is the letter written by the first accused to the third accused on 01.04.1997, in respect of delivery of molasses. Ex.P.17, is the letter written by the third accused to Aruna Sugars on 10.01.1997, in respect of delivery of molasses. Ex.P.18, is the letter of the third accused showing the delivery of molasses between 01.07.1997 to 31.03.1997. Ex.P.19, are the invoices numbering 14, issued by Aruna Sugars to Ganesh Industries, showing the sale of molasses.
8. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. According to them, they did not purchase, transport and use molasses during the non-license period i.e., after 07.03.1997 and thus they have not violated any of the provisions of the Rules.
9. Having considered all the above, the Trial Court convicted the accused under Section 11 of the Tamil Nadu Prohibitioin Act and Sections 420, 109 read with 34 I.P.C., which was confirmed by the Lower Appellate Court. That is how, they are before this Court, with these appelas.
10. Though the revision filed by the first accused in Crl.R.C(MD)No.134 of 2007 has been pending for about eight years and though the matter was listed on several hearings, there was no representation for him. Therefore, on 18.06.2015, this Court appointed Mr.M.R.Sreenivasan, the learned counsel, as a Legal Aid Counsel, to argue the case of the first accused.
11. I have heard Mr.D.Saravanan, learned counsel appearing for the petitioner in Crl.R.C(MD)No.107 of 2007, Mr.G.Mariappan, learned counsel appearing for the petitioner in Crl.R.C(MD)No.111 of 2007, Mr.V.Ilanchezian, learned counsel appearing for the petitioner in Crl.R.C(MD)No.124 of 2007 and Mr.M.R.Sreenivasan, learned counsel appearing for the petitioner in Crl.R.C(MD)No.134 of 2007 and I have also heard Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor appearing for the State and I have also perused the records carefully.
12. The learned counsel appearing for the petitioners would submit that there was no charge framed under Section 11 of the Tamil Nadu Prohibition Act, but the Trial Court has convicted these petitioners under Section 11 of the Tamil Nadu Prohibition Act, which is not legal. The learned counsel would submit that the evidences available do not disclose any violation of Rules 3 or 9 of the Rules and thus they have not followed the rules and the prosecution has failed to prove the contrary. The learned counsel would submit that absolutely there is no evidence that molasses were purchased by the sixth accused from Aruna Sugars during the non-license period and the same was transported to Virudhunagar. The learned counsel would further submit that in order to attract offence under Section 420 I.P.C., absolutely there is no evidence. They would further submit that the charge framed as such namely Sections 420, 109 read with 34 I.P.C. is highly misleading and the same has resulted in miscarriage of justice to them. In conclusion, the learned counsel would submit that there is absolutely no evidence to sustain the conviction imposed by the Trial Court.
13. The learned Additional Public Prosecutor would, however, oppose these revisions. According to him, from the documentary evidences, namely Ex.P.13 to 19, it has been clearly established that 8 loads of molasses was taken from Aruna Sugars, Pennagaram during the non-license period by the sixth accused, the same was transported to Virudhunagar and used. Thus, the learned Additional Public Prosecutor submitted that the above transport was made in order to cheat the Government by escaping from payment of excise duty under the Central Excise Act. Thus, according to the learned Additioinal Public Prosecutor, the accused have committed offence punishable under Section 420 I.P.C. also. Therefore, according to the learned Additional Public Prosecutor, the conviction and sentence imposed the Trial Court, does not require any interference at the hands of this Court.
14. I have considered the above submissions.
15. As I have already extracted, the first charge framed in this case, does not refer to any penal provision. The charge states that the petitioners have committed offence punishable under Rule 3 and 9 of the Rules. Rules 3 and 9 are not penal provisions. However, the Trial Court convicted the accused under Section 11 of the Tamil Nadu Prohibition Act and the same was also confirmed by the Lower Appellate Court. In my considered view, in the absence of a charge under Section 11 of the Tamil Nadu Prohibition Act, the convicition and sentence imposed on them, is illegal and on that score alone, the conviction and sentence imposed under Section 11 of the Tamil Nadu Prohibition Act, could be set aside.
16. But, if it is so done, the matter may have to be remanded to the Trial Court for framing appropriate charges and then to decide the case after affording sufficient opportunity to both parties. At this length of time, going by nature of the offence, in my considered openion, that course is not possible now.
17. Assuming that the petitioners have got no grievance regarding the absence of charge under Section 11 of the Tamil Nadu Prohibition Act and assuming that they were put on notice that violation of Rules 3 and 9 of the Rules would be punishable under Section 11 of the Tamil Nadu Prohibition Act and thus there has been no miscarriage of justice to them, I find that there is no evidence at all even to prove the violation of Rules 3 and 6 of the Rules. For better understanding, let me extract the Rules 3 and 6, which read as follows:
?3. Restrictions on the use of molasses:- Molasses shall not be used except for any of the following purposes, namely:-
(i) distillation of spirit in a distillery established or licensed under the Act.
(ii) manufacture of power alcohol in a distillery established or licensed under the Act or any othe rAct for the time being in force;
(iii) any Government purpose including that of a local-body; and
(iv) any bonafide scientific, industrial, medicinal, agricultural (including use as cattle-feed), educational or such like purposes.
[Provieded that molasses shall not be used in the manufacture of non edible oils.] ... ... ...
6. Licensing authority:- (a) The Collector of the district shall be the authority competent to issue licenses in Form ML-2 and ML-5.
[(b) In the districts where there are no Additional Collectors or Revenue Officers, the Collector, of the district shall be the authority competent to issue licenses in Form ML-4. In the district where there is an Additional Collector or a District Revenue Officer, the Additional Collector or the District Revenue Officer, as the case may be, shall be authority competent to issue licences in Form ML-4.] [Provided that no licence in Form ML-4 shall be granted by the District Revenue Officer, Additional Collector or Collector, as the case may be, except with the prior approval of the Molasses Controller.]
(c) The authorities mentioned above shall be competent to issue transport permits in Form ML-6 in respect of the licences issued by them.
18. The crux of the case of the prosecution is that after the license issued in favour of the sixth accused was suspended on 07.03.1997, 8 tanker lorry loads of molasses was purchased from Aruna Sugars at Pennagaram, transported in the lorries belonging to the accused 3 and 4 with the assistantce of the clerk of accused 3 and 4, namely, the second accused and they were used. The fifth accused is the Godown Superintendent of Aruna Sugars at Pennagaram. In order to prove that on or after 07.03.1997, molasses was sold to the sixth accused and the same was transported in the tanker lorry belonging to accused 3 and 4 and they were brought to Virudhunagar, absolutely there is no evidence. It is not explained to the Court as to why the officials of Aruna Sugars were not examined and the records of Aruna Sugars were not produced. It is also not explained as to why the documents maintained during the routine business of Aruna Sugars were not seized and proved in evidence. In the absence of these evidences, I have no hesitation to hold that the prosecution has failed to prove that on or after 07.03.1997, the sixth accused purchased molasses from Aruna Sugars and transported the same in the tanker lorries, owned by the accused 3 and 4 to Virudhunagar.
19. The learned Additional Public Prosecutor would submit that from Exs.P.13 to P.19, it has been established that such transport was made. First of all, these documents have not been proved in the manner known to law. They have been marked through the Investigating Officer, who cannot speak about the contents of these documents and prove the same. These documents are either letters or some communications between these accused. These documents would not go to prove that molasses was purchased on or after 07.03.1997 by the third accused and transported to Virudhunagar. Thus, I hold that the prosecutioin has failed to prove that the accused have violated Rules 3 and 9 of the Rules. Therefore, the punishment imposed on the accused under Section 11 of the Tamil Nadu Prohibitioni Act, is liable to be set aside.
20. Now, turning to the conviction of the accused under Sections 420, 109 read with 34 I.P.C., again, the charge framed is highly misleading. I do not understand as to how the Trial Court could frame a charge under Sections 109 and 34 I.P.C. simultaneously. Assuming that the defect in the charge has not caused prejudice to the accused, even then, there is no evidence at all to prove the charge of cheating. The learned Additional Public Prosecutor would submit that the victim of cheating is the Central Government, to whom, central exicse would have been paid. In this regard, I may say that in order to attract an offence under Section 420 I.P.C., fundamendally, the prosecution has to prove all the ingredients of Section 415 I.P.C., which requires, representation, knowing the same to be false, making someone to believe the same to be true and the person so deceived, should have acted upon the same. No such materials are available on record, in this case, to satisfy the requirements of Section 415 I.P.C. Thus, the conviction of the petitioners under Sections 420, 109 read with 34 I.P.C. is also liable to be set aside.
21. In the result, all the Criminal Revision Cases are allowed and the conviction and sentence imposed by the Trial Court, confirmed by the Lower Appellate Court, against these petitioners are set aside and they are acquitted. Fine amount, if any, paid, shall be refunded to the respective accused.
22. Before parting with this case, I would like to record my deep appreciation for the valuable assistance rendered by Mr.M.R.Sreenivasan, learned counsel, appoined as a Legal Aid Counsel, by this Court, and the Legal Services Authority is directed to pay his remuneration.
To
1.The Additional District and Sessions Judge, Fast Track Court, Virudhunagar.
2.The Judicial Magistrate No.II, Virudhunagar.
3.The Inspector of Police, Central Investigation Unit (Prohitbition Offences), Tirunelveli Zone.
4.The Inspector of Police, East Police Station, Virudhunagar.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.