Gujarat High Court
Tejasbhai Rajeshbhai Chaudhari & vs State Of ... on 26 April, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/459/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 459 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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TEJASBHAI RAJESHBHAI CHAUDHARI & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR HR PRAJAPATI, ADVOCATE for the Appellant(s) No. 1 - 2
MR NJ SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 26/04/2017
ORAL JUDGMENT
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1. The present Appeal has been filed by the appellants - original convict under Section 374 Cr. P.C., against the Judgment and order dated 24.4.2002, rendered in Essential Commodity Case No.3 of 1996 by the learned Special Judge, Mehsana. The appellants are sentenced to under go R.I. for two years and fine of Rs.5,000/, in default, R.I. for four months for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act.
2. The brief facts of the case are the appellant No.1 is the proprietor of M/s.Tejas Petroleum. The I.B.P. Co. Ltd., had appointed the appellant No.1 as dealer for sale of Motor Spirit and HSD Oil and other products of the Company at the site i.e. SH55, Dhinoj, Dist.Mehsana with effect from 9.12.1994. The dealership agreements were executed between the appellant No.1 and the oil company on 9.12.1994. The oil company had installed on 20 Kl. Capacity underground tank on HSD (Diesel) and 1 x 15 Kl. Capacity underground tank on MS (Petrol) in earthen pit, while commissioning the retail outlet in December, 1994. As the job of installation of the said tanks were not done on masonry chair Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT to hold the tank in the pit as being done at most of all the petrol diesel pumps, the said underground tanks lost its balance and left its original position. Due to heavy rain and gushing water from Mehsana side, water entered inside the HSD tank area breaking the kerb wall and the subject tank left its further original position damaging pipelines, sumps etc. In the meantime, inspection was said to have been conducted on 12.5.1995 by the complainant and other two officers. During the course of inspection they found certain irregularities and on the basis of same, seizure order said to have been issued and statement of appellant No.2 said to have been taken by the Inspecting Officers. In his statement, the appellant No.2 said to have stated before the inspecting staff that because of the dislocation of the underground tanks, excess stock of diesel and petrol has been found out. For the difference of density, it was said to have been pointed out that because of high temperature, there is a variation in density of diesel. The Collector of Mehsana said to have been given authority to file the criminal complaint vide order dated 16.9.1995 to the complainant, he has filed the criminal complaint on 1.2.1996 before the learned Special Judge, Mehsana Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT which was registered as Essential Commodity Case No.3 of 1996.
3. Heard Mr.H.R.Prajapati, learned advocate for the appellant and Mr.N.J.Shah, learned APP for the respondent - State.
4. Mr.Prajapati, learned advocate for the appellants has submitted that appellant No.2 has expired during the pendency of appeal. He has produced copy of deathcertificate of the appellant No.2 on the record of this case.
5. Mr.Prajapati, learned advocate for the appellants has contended that evidence of prosecution is full of material omissions and contradiction and it does not inspire confidence.
6. He has contended that the learned Special Court has no jurisdiction to record the conviction and pass order of sentence because the Essential Commodities Act was amended in the year 1982 which came into force from 1.9.1982 i.e. the Act which provides for Special Court under Section 12A. In view of constitution of Special Court under Section 12A to the best information of appellant all the prosecution in respect of any offence under the Principal Act pending before the Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT Court of Magistrate came to be transferred to the Special Court. The said Act was enforced initially for a period of 05 years i.e. 1987 to 1992 and thereafter from 1992 to 1997. The Act was in force till 31.8.1997. Thereafter the Essential Commodities (Special Provisions) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated on 3.10.1997 making certain special provisions by way of amendments to the Essential Commodities Act for a temporary period. By the said Ordinance, Section 15AA was inserted which states that any prosecution in respect of any offence under the Principal Act, committed during the period commencing on the 1st day of September, 1997, and ending with the date of commencing of the said Ordinance i.e. 3.10.1997 shall be instituted only in Special Court and any prosecution in respect of such offence pending in any Court shall stand transferred to the Special Court. Thereafter, the President of India promulgated the second Ordinance No.1 of 1998 dated 2.1.1998 and it was titled as the Essential Commodities (Special Provisions) Second Ordinance, 1998. As there was no enactment the Essential Commodities Amendment Ordinance, 1998 (Central Ordinance 13 of 1998) was promulgated by the President on Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT 25.4.1998. The above two ordinances lapsed since they were not replaced by enactment, as a result of which the special court established for trial of Essential Commodities Act cases ceased to function after 31.8.1998. The consequential position that followed was that the cases registered under the Act were to be tried before the Magistrate having jurisdiction as it was being done prior to enactment of Essential Commodities (Special Provisions) Act, 1981. Therefore, the special court had no jurisdiction to convict the appellant and the case was required to be transferred to the concerned Magistrate having jurisdiction to try the case.
7. In support of his submissions he has relied on the decision in the case of State of Gujarat vs. Mahesh Trading Company, reported in 2000 (0) GLHELHC 212164. He has contended that the authorised officer of the State Government has not filed the complaint. Lastly he has contended that the order of conviction and sentence passed by the Special Court is required to be quashed and set aside as being without jurisdiction and competence.
8. I have gone through the impugned judgment Page 6 of 8 HC-NIC Page 6 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT and order passed by the learned Special Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesscomplainant and also perused the charge framed against the accused persons. I have also considered the submissions advanced by the learned APP for the respondent State.
9. The cognizance of offence under the Act can be taken by the Special Court either upon a police report or upon a complaint made by the officer so authorised by the Government concerned. Thus, no public servant can lodge complaint in respect of the offence committed under the Act unless he is authorised in this behalf by the State Government. It is well settled proposition of law that power conferred by the Statute cannot be delegated except where Act permits such delegation either by express words or by necessary implication. In the present case the complainant is not authorised by the Government concerned.
10. In view of above, the appeal qua appellant No.2 is abated. The Criminal Appeal qua appellant No.1 is allowed. The judgment and order dated 24.4.2002, rendered in Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Aug 16 05:58:34 IST 2017 R/CR.A/459/2002 JUDGMENT Essential Commodity Case No.3 of 1996 by the learned Special Judge, Mehsana, is hereby quashed and set aside. Conviction and sentence of the accused is set aside. Fine amount, if any, paid be refunded to the appellant. The bail bond, if any, shall stand cancelled. R & P to be transmitted to the trial Court.
(Z.K.SAIYED, J.) KKS Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Aug 16 05:58:34 IST 2017