Madras High Court
Anand vs / on 12 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.7528 of 2019
and
Crl.M.P.No.4150 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :07.09.2022
Pronounced on :12.09.2022
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.7528 of 2019
and
Crl.M.P.No.4150 of 2019
1.Anand
2.Narasappa .. Petitioners
/versus/
State Rep by its
1.The Deputy Superintendent of Police,
Civil Supplies CID,
Coimbatore Sub Division.
2.The Inspector of Police,
Civil Supplies CID,
Krishnagiri.
3.P.K.Govindan,
Special Tasildhar,
Krishnagiri. .. Respondents
1/12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.7528 of 2019
and
Crl.M.P.No.4150 of 2019
Prayer: Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to call for the records relating in C.C.No.242 of 2017 on the file of
Judicial Magistrate No.1, Krishnagiri and quash the same.
For Petitioners :Mr.G.Mohammed Aseef
For Respondents :Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
for R1 and R2
R3-Service awaited
------
ORDER
This Criminal Original Petition to quash the complaint in C.C. No.242 of 2017 filed against the petitioners for offences under Section 17 of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973 r/w Section 7(1) a
(ii) of the Essential Commodities Act, 1955.
2. On 10/09/2016, the petitioners were found in possession of 600 litres of kerosene worth Rs.9,000/- transporting in 3 barrels each 200 litres in the Bolero Pickup Van bearing registration number KA 08 4491. According to the Respondent Police, the said kerosene is meant for public distribution and these petitioners had purchased it from the cardholders for less price and 2/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 transporting it with an intention to sell it in the black market for higher price.
3. The petitioners admit the guilt. However the prosecution is challenged on the ground that the respondent police cannot prosecute for the said offence since for the very same offence, the DRO had conducted enquiry and levied fine of Rs.8520/- for the first petitioner and in lieu of confiscation of the vehicle, fine of Rs.80,000/- levied on the second petitioner. Both the petitioners have paid the fine levied. Therefore, for the very same offence, they cannot be again prosecuted.
4. It is contended by the learned counsel for the petitioners that, the complaint is filed without application of mind. There cannot be two prosecution for the same offence. As per the Kerosene Control Order, the Competent Authority can launch prosecution only on prior sanction. No Court can take cognizance without sanction. However, in this case the complaint is not supported by a valid sanction for prosecution. 3/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019
5. The learned Government Advocate(Crl.Side) submitted that under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, any person, who is in possession of 20 litres or more of kerosene at any time shall unless otherwise established, be presumed to be a dealer. The onus to establishing that he is not a dealer shall be on the person concerned. Therefore, the petitioners, who were in possession of 600 litres of kerosene were presumed to be a dealer and take action under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 and under Section 7(1)(a)(ii) of the Essential Commodities Act.
6. The DRO, Krishnagiri passed the order dated 22/12/2016 imposing penalty in the confiscation proceedings initiated by him in exercise of the power under Section 6 A of the Essential Commodities Act, 1955. Whereas Section 6-D of the Essential Commodities Act, 1955 clearly state that the award of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby, liable under this Act. The prosecution impugned in this petition is 4/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 independent of the confiscation proceedings and the same is legally permissible and valid.
7. Section 2 A of the Essential Commodities Act, 1955, defines “Essential Commodity” means a commodity specified in the Schedule to the Act. Petroleum and Petroleum products is mentioned in the Schedule at serial Number 5. Thus, kerosene being an essential commodity, in exercise of delegated power to make Orders under Section 3 of the Eessential Commodities Act, the Government of Tamil Nadu has notified the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 in Government Gazattee dated 14/11/1973 and the same has come into force at once. As per this Order, no person shall, on and after the commencement of this Order, carry on business as a retailer, unless he had been registered as such under this order by the Licensing Authority. In the instant case, the petitioners having been in possession of more than 20 litres of kerosene were deemed to be a dealer as per the Explanation II of the Clause 2. The DRO in exercise of the power under Clause 23 of the Order, has imposed fine for contravention of 5/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 the Regulatory Order vide, proceedings dated 22/12/2016.
8. To prosecute any person for contravention, attempt to contravene, or abet the contravention on any of the provisions of the Order, Clause 25 mandates previous sanction by the Commissioner/or the Deputy Commissioner (Civil Supplies) (Madras City) or the Collector concerned or such other officer as may be authorised by the Collector under Clause (ii-a) of Section 2 of the Essential Commodities Act, 1955.
9. Clause 25 of the Tamil Nadu Kerosene (Rgulation of Trade) Order, 1973 reads as below:-
“25. Previous Sanction for Prosecution:
No person shall be prosecuted for contravention, attempt to contravene, or abet the contravention of any of the provisions of this order, or of the terms and conditions of the licence or registration certificate, issued to him under this order or the terms and conditions applicable to authorisation issued by the Government or the Licensing authority or the authorised officer except with the previous sanction of the Commissioner/or the Deputy Commr.(CS) (City)(Madras)/ or the Collector concerned 6/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 or such other officer as may be authorised by the Collector under clause (i-a) of Sanction of the Essential Commodities Act, 1955 (Central Act 10 of 1955) to perform the functions and exercise the powers of the Collector under the said Act.
(G.O.Ms.No.100, Food Dept. Dated 06.03.74)”
10. Going back to the definition of “Collector” under the Essential Commodities Act, 1955 says, the Collector includes Additional Collector and such other Officer, not below the rank of Sub-Divisional Officer, as may be authorised by the Collector to perform the functions and exercise the powers of the Collector under the Act.
11. The complaint against these petitioners is under Clause 17 of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 r/w Section 7(1) a
(ii) of the Eessential Commodities Act, 1955.
12. Clause 17 of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 reads as below:-
“No person, other than an importing oil company or a dealer licenced or registered under this 7/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 order, shall have in his possession or under his control a stock exceeding twenty litres of kerosene at a time;
Provided institutions or special classes of consumers to whom permits are issued by the licensing authority to buy kerosene in bulk may stock at any time quantities not exceeding the quantity permitted for one month.”
13. Section 7 (1) a (ii) of the Eessential Commodities Act, 1955 reads as below:-
“7. Penalties :(1) If any person contrevenes any order made under Section 3-
(a)he shall be punishable-
(i)in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine;
[Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, 8/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 impose a sentence of imprisonment for a term not less than three months;]
(b)any property in respect of which the order has been contravened shall be forfeited to the Government;
(c)any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the Court so orders, be forfeited to the Government.”
14. Thus, from the analysis of the provisions of the Eessential Commodities Act, 1955 and the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, the two irresistible conclusions arrived are :-
The confiscation proceedings by the Competent Authority and prosecution through Court can be initiated simultaneously. One will not exclude the other. Double jeopardy principle or Autrefois conviction not applicable to the facts of the case. Particularly, when Section 6-D of the Eessential Commodities Act, 1955, specifically clarifies, this legal position of law categorically by saying, award of confiscation shall not prevent the infliction of any punishment. Therefore, the award in confiscation 9/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 proceedings dated 22/12/2016 passed by the DRO shall not prevent the prosecution proceedings.
15. While, the law defining “offence” is found in the Kerosene (Regulation of Trade) Order in Clause 17, the penalty for contravention of the Order is prescribed in Section 7(1) a (ii) of the Eessential Commodities Act, 1955. For taking “cognizance of the offence” defined under the Regulation Order, “sanction” under Clause 25 of the said order is mandatory. In the instant case, the final report, which is taken cognizance by the Judicial Magistrate No.I, Krishnagiri is without the sanction to prosecute accorded by the Collector or his authorised Officer not below the rank of Sub-Divisional Officer. For the said reason, the criminal prosecution is liable to be quashed.
16. For the reasons stated above, the criminal prosecution in C.C.No.242/2017 on the file of the Judicial Magistrate No.1, Krishnagiri is 10/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 quashed. Accordingly, this Criminal Original Petition is allowed. Consequently, connected Miscellaneous Petition is closed.
12.09.2022 Index:yes Speaking order/non speaking order ari To:
1.The Judicial Magistrate No.1, Krishnagiri.
2.The Deputy Superintendent of Police, Civil Supplies CID,Coimbatore Sub Division.
3.The Inspector of Police,Civil Supplies CID, Krishnagiri.
4.P.K.Govindan,Special Tasildhar, Krishnagiri.
5.The Public Prosecutor,High Court, Madras.
DR.G.JAYACHANDRAN,J.
ari 11/12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 Delivery Order made in Crl.O.P.No.7528 of 2019 and Crl.M.P.No.4150 of 2019 12.09.2022 12/12 https://www.mhc.tn.gov.in/judis