Madras High Court
T.Ganeshrajan vs State Rep. By on 28 November, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/11/2006 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL CRL.O.P.(MD).No.3807 of 2006 and CRL.M.P.(MD).Nos.2792 and 2793 of 2006 T.Ganeshrajan ... Petitioner Vs. State rep. by The Inspector of Police, Civil Supplies CID, Tirunelveli. ... Respondent Prayer Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to call for the records in C.C.No.44 of 2005 on the file of the Judicial Magistrate No.II, Tuticorin and quash the proceedings in C.C.No.44 of 2005. !For Petitioner ... Mr.K.P.S.Palanivelrajan For Mr.N.Sudharsan ^For Respondent ... Mr.M.Ravishankar, Government Advocate (Crl.side) :ORDER
The petition is filed by the second accused seeking quashment of the criminal proceedings in C.C.No.44 of 2005 on the file of the learned Judicial Magistrate No.II, Tuticorin.
2. The charge against 22 accused including the petitioner herein is as follows:
A-1,A-8,A-9 and the petitioner herein conspired together to collect rice meant for public distribution system for the purpose of smuggling the same to Delhi in black-market, and thereby, A-1 to A-3 and A-8 to A-19 committed an offence of conspiracy punishable under Section 120(B) of the Indian Penal Code. A-1 and the petitioner herein with the active assistance of A-10 to A-19 secured huge quantities of PDS rice by illegal means and stored the same in Tamil Nadu Warehousing Corporation Godown Unit No.III and loaded 44,214 bags of PDS rice each weighing 50 Kgs in 40 Railway Wagons in the Thoothukudi Port Railway Yard and kept the remaining portion of PDS rice in the godown itself, and thereby, A-1, A-2 and A-8 to A-18 contravened the provision of Section 6(4) of the Public Distribution System (Control) Order, 2001 punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. A-1, A-10 to A-18 and the petitioner herein purchased PDS rice for the purpose of smuggling to Delhi, and thereby, they contravened the provision of Section 6(4) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. A-4 to A-6 created false purchase bills, as if the rice was sold by them to Sri Vinayaka Exports at Kovilpatti, and thereby, they committed an offence punishable under Section 467 of the Indian Penal Code. A-1 and the petitioner herein persuaded the seventh accused, who was working as the Market Supervisor at Agricultural Produce Market Committee, Bangarapet, Karnataka, to create false entries to make it appear that the rice was purchased from A-4 to A-6 and transported the same from Bangarapet, Karnataka in lorries to Kovilpatti in Tamil Nadu, and thereby, they committed offences punishable under Section 467 IPC r/w 120(B) of the Indian Penal Code. A-1 and the petitioner herein also persuaded A-19 and A-22, who were staff of Dharmapuri District Regulated Market Committee, Thoppur Check Post to create false documents, as if the lorries passed through the said Check Post with rice bags and thereby, they committed offences punishable under Section 467 IPC r/w 120(B) of the Indian Penal Code. The petitioner herein used the forged bills issued by A-4 to A-6 as genuine knowing full well that the same were forged ones and used the same to cheat the officers, who seized the PDS rice, and thereby, the second accused committed the offences punishable under Sections 468 and 471 of the Indian Penal Code.
3. After investigation of the case booked in Crime No.176 of 2004 on the file of the respondent-police, charge sheet was laid and the learned Judicial Magistrate No.II, Tuticorin having been satisfied prima facie that there are sufficient grounds for proceeding against the accused, took the case on file in C.C.No.44 of 2005.
4. The petitioner in the quashment petition has contended that the respectable inhabitants of the locality, where the Railway Yard and Tamil Nadu Warehousing Corporation Godown are located, were not associated to attest the mahazar prepared by the respondent-police. In spite of the circular issued by the Commissioner of Civil Supplies, Chennai in Rc.No.B1/43427/87 dated 21.01.1988, no sample packet of the rice seized was served on the owner of the commodity and the petitioner was also not served with the copy of the analyst report, and thereby, the petitioner was deprived of his right to file an appeal against the analyst report. No material has been furnished to show that the PDS rice was purchased from the card holders. There was no short fall of rice in the PDS shops or in the godowns owned by the Government in Kanyakumari, Tuticorin and Tirunelveli District. No direct evidence is available to show that the petitioner played a role in falsification of the bills as alleged by the prosecution. The Government of India has promulgated the Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order, 2002 and that, therefore, there was no restriction for export or import of food grains through out India and no licence or permit is required under the Essential Commodities Act, 1955 for carrying on trade in food grains, it has been lastly contended by the petitioner in the petition seeking quashment.
5. The learned counsel for the petitioner would vehemently contend that as the sample packets collected from the rice alleged to have been transported by the petitioner and the analyst report were not served on the petitioner, the petitioner was deprived of his right to file an appeal against such analyst report. As the Central Government has already promulgated an order removing the restriction on export and import of food grains through out India, the offences alleged to have been committed under the Essential Commodities Act, 1955 does not survive for legal scrutiny.
6. The learned Government Advocate (Criminal side) would submit that the violation of the instructions found in the circular issued by the Commissioner of Civil Supplies, Chennai in Rc.No.B1/43427/87 dated 21.01.1988 will apply only to the confiscation proceedings and not for the criminal action initiated by the respondent under the Essential Commodities Act, 1955. He would bring to the notice of this Court that the restriction imposed on the transport of PDS rice as per the orders promulgated by the States has been exempted under the Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order, 2002. The respondent-police lifted the samples and sent for analysis and the analyst report would disclose that the sample tallies with the PDS rice.
7. The points that arise for determination are,
(i) Whether the circular issued by the Commissioner of Civil Supplies, Chennai in Rc.No.B1/43427/87 dated 21.01.1988 would apply to the facts and circumstances of the case and whether the violation of such circular by the respondent-police would prove fatal to the very launching of prosecution?
(ii) Whether the criminal proceedings initiated under the Essential Commodities Act, 1955 in the face of promulgation of Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order, 2002 by the Government of India is sustainable?
8. Point No.I:
The circular issued by the Commissioner of Civil Supplies and Consumer Protection, Chepauk, Madras-6 reads as follows:
" I invite attention to this office letter cited in which certain instructions were issued regarding the issue of Movement authorisation in respect of imported paddy and rice stocks into Tamil Nadu from other States. One of the conditions mentioned is the before issue of Movement Authorisation, two samples of the consignment should be taken, signed both by the dealer and Movement issuing authority and both samples sealed one sample should accompany the lorry.
2. It has been brought to the notice of the Government that in some districts the District Revenue Officers have confiscated imported stocks of paddy/rice on the mere ground that no sealed samples accompanied the consignment in the lorry even though there were bills, Movement Authorisations, and duty as in the lorry G.V.R. It has also been brought to the notice of the Government that the above instructions were not made known to the dealers by the authorities. I therefore request you to bring this fact again to the notice of the concerned and to instruct the District Supply Officers and Assistant Commissioners to issue necessary directions to the paddy/rice wholesalers dealers, got their acknowledgements and file them in the office records.
3. To obviate the above difficulties, I also request you to issue necessary instructions to the Movement Authorisation issuing Authorities to follow the instructions issued in the letter cited and also to make an indication in the movement authorisation about the sample to accompany the consignment, as one of the main condition.
4. In this connection, I am to state that, in general even if the sample accompanies the lorry, it is essential to draw samples from the consignment seized in 3 packets, seal them, hand over one to the person from whom the seizure is made, retain one with the officer who seizes the stock and send the 3rd to the quality analysis and got it analysed by him and obtain a certificate from his as to whether both sample agree. A copy of the analysis certificate should be issued to the claimant of the consignment and he should be given an opportunity to appeal against the analysis certificate. Only thereafter final orders under Section 6-A of the Essential Commodities Act, 1955 should be passed after conducting enquiry.
5. The receipt of the letter may be acknowledged by next post."
9. A careful reading of the said circular would unambiguously disclose that the said circular has been issued in order to curtail unwarranted action initiated by the District Revenue Officers while the stocks of paddy/rice are imported from other States into Tamil Nadu. It adumbrates that two samples of the consignment should be taken before issuing Movement Authorisation by the Movement Issuing Authority. One such sample sealed should accompany the lorry which carries paddy or rice into Tamil Nadu. In spite of the fact that one sample accompanies the lorry, in case where the District Revenue Officer suspects foul play and seizes the stock, he has been directed to draw samples from the consignment seized in three packets, one shall be handed over to the person from whom the seizure was made, another one shall be retained by the officer, who seized the stock and yet another sample packed shall be sent to the quality analyst for the purpose of examination. The said circular also mandates the officer to serve a copy of the analysis certificate to the claimant of the consignment for giving an opportunity to appeal against the said analysis certificate. The final order under Section 6(A) of the Essential Commodities Act, 1955 shall be passed only after such opportunity is given to the claimant of the consignment.
10. Section 6(A)(1) of the Essential Commodities Act, 1955 would categorically declare that an order of confiscation may be passed by the Collector, irrespective of the fact as to whether or not prosecution was instituted for the contravention of the order issued under Section 3 of the said Act.
11. The aforesaid circular contains an instruction to the District Revenue Officers for the purpose of properly screening the movement of the lorries exporting food grains from other State into the State of Tamil Nadu. The said circular which does not graduate to the level of statute would apply only to the confiscation proceedings initiated by the Collector under Section 6(A) of the Essential Commodities Act, 1955. It will not apply to the prosecution initiated for the violation of the orders promulgated under Section 3 of the Essential Commodities Act, 1955. Initiating confiscation proceedings is totally different from prosecuting the violators of the orders issued under Section 3 of the Act.
12. Further in this case, the food grains were not seized during the time when it was imported from Andhra Pradesh to Tamil Nadu. The stocks were seized when the same were found loaded in the Railway Wagons and the remaining food grains were found in the Tamil Nadu Warehousing Corporation Godown. As the seizure was not made when it was transported from another State into the State of Tamil Nadu, the said circular also will not apply to the facts and circumstances of this case.
13. The learned counsel for the petitioner referred to the Judgment pronounced by this Court in M.Krishnamoorthy Vs. Ex.officio Secretary to Government Co-operation, Food and Consumer Protection Department, Fort St.George, Madras - 9 and two others (W.P.No.1892 of 1994), wherein this Court exercising its writ jurisdiction conferred under Article 226 of the Constitution of India was pleased to set aside the order of confiscation passed by the first respondent under the Essential Commodities Act, 1955, as it was found that the aforesaid circular issued by the Commissioner of Civil Supplies, Chennai in Rc.No.B1/43427/87 dated 21.01.1988 was not scrupulously adhered to by the first respondent, while passing the order of confiscation.
14. The said ratio was followed by this Court in Tamilarasan Vs. State of Tamil Nadu by Special Secretary to Government, Co-operation, Food and Consumer Protection Department, Fort St.George, Madras-9 and two others (W.P.No.13476 of 1996) and in A.Sivasamy Vs. The Ex-officio Secretary to Government, Co- operation, Food and Consumer Protection Department, Fort St.George, Madras - 9 and two others (W.P.No.2817 of 1995).
15. As laid down supra by this Court, the aforesaid circular sent by the Commissioner of Civil Supplies will apply to the confiscation proceedings contemplated under Section 6(A) of the Essential Commodities Act, 1955. Further, the non-compliance of such a direction found in the said circular which has no statutory force cannot be applied to the criminal prosecutions launched as against the accused based on the seizure of PDS rice consignment. Therefore, the ratio in the aforesaid cases referred to by the learned counsel for the petitioner will not apply to the facts and circumstances of this case.
16. Therefore, it is held that the non-observance of the instructions found in the circular issued by the Commissioner of Civil Supplies, Chennai in Rc.No.B1/43427/87 dated 21.01.1988 does not affect the prosecution launched by the respondent-police as against the petitioner.
17. Point No.2:
Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order 2002, permits the dealers to freely buy stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarse grains, sugar, edible oil seeds and edible oils. Such an activity will not require a permit or licence under any order issued as per Section 3 of the Essential Commodities Act, 1955.
18. It is pertinent to refer to Section 6 of the aforesaid Order. It has been categorically stipulated therein that nothing contained in that order shall affect the operation of the Public Distribution System (Control) Order, 2001 issued by the Central Government and Orders of the State Governments issued in pursuance thereof.
19. The phrase "in pursuance thereof" here in this context does not mean the orders issued by the State Governments following the Public Distribution System (Control) Order, 2001 issued by the Central Government. In the considered opinion of this Court, the aforesaid phrase means the steps or the efforts taken to attain the object of effective controlled public distribution system in the State. The Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 has been promulgated just to advance the object of effective public distribution system in the State of Tamil Nadu. The orders promulgated by the State Governments in connection with the public distribution system has been specifically exempted from the purview of the Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order, 2002 issued by the Central Government. Therefore, the aforesaid order promulgated by the Central Government does not prohibit the operation of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982.
20. The learned counsel for the petitioner submitted an authority reported in M/s.Sri Sai Traders v. Assistant Supply Officer, Circle I (AIR 2006 Andhra Pradesh 343), wherein the High Court of Andhra Pradesh has held that inasmuch as the Government of Andhra Pradesh has issued a Government Order rescinding the Andhra Pradesh Paddy and rice (Requisitioning of stocks) Order, 1966, following the Removal of (Licensing Requirements Stock Limits and Movement) Restrictions on Specified Foodstuffs Order, 2002, promulgated by the Central Government, no proceedings can be initiated by the Assistant Supply Officer, Vijayawada invoking the provision under Section 6(A) of the Essential Commodities Act, 1955. On a careful perusal of the above authority, it is found that the question that arose for consideration before the High Court of Andhra Pradesh was whether the confiscation proceedings initiated under Section 6(A) of the Essential Commodities Act, 1955 was in order, in view of the Government Order passed by the Government of Andhra Pradesh rescinding the Andhra Pradesh paddy and rice (Requisitioning of Stocks) Order, 1966. In the case on hand, the question as to whether the Authority concerned has the power to initiate confiscation proceedings under Section 6(A) of the Essential Commodities Act, 1955 has not arisen for discussion. The question that has arisen in this matter is whether the criminal prosecution launched as against the petitioner under Section 6(4) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 and Section 6(4) of the Public Distribution System (Control) Order, 2001 r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 is sustainable. Therefore, the aforesaid authority also will not apply to the criminal prosecution launched as against the petitioner by the respondent- police.
21. Procuring scheduled commodities except on a family card is prohibited under Section 6(4) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982. Such a violation of the aforesaid provision found in the said order is punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.
22. The respondent-police having thoroughly investigated the matter, has collected sufficient materials to show that the PDS rice has been procured for the purpose of smuggling to Delhi creating false documents to show that it was transported from Andhra Pradesh to the State of Tamil Nadu punishable under the Essential Commodities Act, 1955 and Sections 467,468 and 471 of the Indian Penal Code r/w Section 120(B) of the Indian Penal Code.
23. There might have been some lapses on the part of the respondent in seizing the consignment. But that cannot be a valid ground for quashing the criminal proceedings initiated against the petitioner and others. Even the non- adherence of the mandatory provision under the law cannot be sustainable ground for quashing the criminal proceedings.
24. Under the above facts and circumstances, the Court finds that the petitioner has come out with an application seeking quashment with totally untenable pleas. Therefore, the petition seeking quashment of the criminal proceedings in C.C.No.44 of 2005 on the file of the learned Judicial Magistrate No.II, Tuticorin stands dismissed. Consequently, the connected miscellaneous petitions are also dismissed.
SML To
1.The Judicial Magistrate No.II, Tuticorin.
2.The Inspector of Police, Civil Supplies CID, Tirunelveli.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.