Madhya Pradesh High Court
Banti Gupta vs The State Of Madhya Pradesh on 30 September, 2015
M.Cr.C No. 6729/2015 (1)
Banti Gupta
Vs.
State of Madhya Pradesh
30/09/2015
Shri Sanjay Bahirani, Advocate for the petitioner.
Shri Rajendra Singh Yadav, PP for respondent /
State.
Heard.
This petition has been filed under Section 482 of Cr.P.C for quashing the FIR registered at Crime No. 817/2012 at Police Station City Kotwali, Morena for the offences punishable under Section 3 / 7 of Essential Commodities Act, 1955 (hereinafter referred to as "the Act").
2. Factual matrix of the case remain as under;
Assistant Sub Inspector P.S. Yadav lodged an FIR at City Kotwali Morena on 12.10.2012 that at about 7:15 PM that during the patrolling at Gopalpura alongwith Head Constable Suresh and other constable Mahesh received information that one white colour Tata vehicle bearing registration No. M.P. 07 L0683 was carrying kerosene of the government fair price shop from Ampura Road to village Jarerua for storing. After informing the Panch witness Keshav Singh, the patrolling party were waiting for the said vehicle. The said vehicle M.Cr.C No. 6729/2015 (2) arrived, police party stopped the same, besides the driver two other persons were seated in the vehicle. They tried to run away. They were apprehended. On asking their names, the driver informed his name as Kalicharan. He further informed that 7 drums of kerosene was being transported to village Jarerua by Sabharam Gurjar and Banti Gupta (the present petitioner) who tried to run away. The petitioner Banti Gupta and Sabharam were asked about the 7 drums of kerosene oil kept in the vehicle. They informed the police that it is the kerosene oil of the fair price shop, was being taken to Ganeshpura. They did not give satisfactory reply. Therefore, police after arrested them seized the blue kerosene belonged to the State Government and which was being taken for storing and selling in open market. In this regard no document has been produced by the accused persons nor they had any license to transport and storage the same.
3. Petitioner has filed this petition under Section 482 of Cr.P.C for quashing the FIR on the ground that the petitioner did not run any control shop under the Public Distribution System. The Assistant Sub Inspector of Police Shri P.S. Yadav has no jurisdiction to seize the article and registered the offence under "the Act".
4. The FIR can only be registered with the prior permission of Collector. It is prayed that the FIR lodged M.Cr.C No. 6729/2015 (3) by Assistant Sub Inspector A.S. Yadav is therefore, liable to be quashed.
5. Learned Public Prosecutor Shri Rajendra Singh Yadav, opposed the application and submitted that the blue coloured kerosene belongs to the fair price shop for supply under the Public Distribution System.
6. On perusal of the police diary, it is found that the Assistant Sub Inspector of Police, City Kotwali, Morena has lodged the FIR, saying that the seven drums of kerosene oil was seized by the police seems to be of fair price /control shop. Therefore, report has been lodged against all the three accused persons for the offence punishable under Section 3 / 7 of E.C Act.
7. Section 7 of "the Act" which provides the penalties that " the person contravenes any order made under Section 3" denotes that penalties can be imposed only when Section 3 of "the Act" is violated. But the FIR does not show which order has been violated or contravened. For better understanding, Section of "the Act" is reproduced here:-
8. Section 7 of "the Act" provides Penalties (1) if any person contravenes any order made under Section 3-
(a) he shall be punishable
(i) in the case of any order made with reference to clause (h) or clause (i) of M.Cr.C No. 6729/2015 (4) 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 kwhich 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, impose a sentence of imprisonment for a term of 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.
9. How and which condition of the Control Order has M.Cr.C No. 6729/2015 (5) been violated in the present case, has not been made clear. As noticed above, it is not prima facie found that the petitioner has not violated any "order" under Section 3 of "the Act". Therefore, counsel for the petitioner has argued that the petitioner cannot be punished under Section 7 of "the Act". In Hema Bhadoriya Vs. State of Madhya Pradesh, reported in 2008 (1) EFR 198 and in Mahesh Chourasiya Vs. State of M.P. & others decided on 11.10.2013 in M.Cr.C No. 2967/2008, the prosecution was quashed and it was held that investigation was illegal and unauthorized, and this Court has observed:
"Prevention of Corruption Act (49 of 1988), S. 17, 2nd Proviso - Offence under Section 13 (1) (e) - Investigation conducted by Deputy Superintendent of Police without order of authorization by Superintendent of Police - is without jurisdiction - The defect cannot be curd by application of S.P. Before JMFC for issuing warrant of search to be conducted by said DSP - Consequent challan under Section 173, Criminal P.C would also be unauthorised -
Investigation and Police report liable to be quashed under S. 482 of Criminal M.Cr.C No. 6729/2015 (6) P.C."
10. In the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 (Suppl.) (1) SCC 335, the Apex Court has laid down the principle of law, which enunciate in a series of decisions relating to the exercise the inherent powers under Section 482 of Cr.P.C and formulated the following guidelines:-
"The Court in the backdrop of
interpretation of various relevant
provisions of the Cr.P.C under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482, Cr.P.C gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible M.Cr.C No. 6729/2015 (7) guidelines or rigid formula and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or made out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the un-controverted
allegations made in the FIR or
complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
M.Cr.C No. 6729/2015 (8)
(4) Where the allegations in the
FIR do not constitute a cognizable offence but constitute only a non-
cognizable, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the Fir or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a special provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
M.Cr.C No. 6729/2015 (9)
(7) Where a criminal proceeding is
manifestly attended with malafide
and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. As per Clause 10 of M.P. Public Distribution System (Control) Order 2009:
The power of entry, search and seizure- (1) any officer not below the rank of junior supply officer of the Food Department or Officer not below the rank of Naib Tehsildar or Sub Inspector of the Cooperative Department no other person authorized to carry out search action against the Fair Price Shop being run under PDS Control Order.
12. Clause 11 (5) of the M.P. Public Distribution System (Control) 2009, also provided that the Collector only authorized to initiate action under Section 7 of "the Act", if there is any violation of the PDS Order or the Central Order.
13. The Police Party headed by Assistant Sub Inspector Shri P.S. Yadav has not obtained any prior permission from the Collector before registering the FIR or for seizing the articles. The FIR lodged by the A.S.I Shri M.Cr.C No. 6729/2015 (10) P.S. Yadav on his own instance or on his own motion is clearly abuse of process of law. Violation of any Control Order has not been expressly shown by the police in the FIR. Therefore, it is not clear which Control Order has actually been violated.
14. In these circumstances, the petitioner cannot be punished under Section 7 of " the Act". The prosecution at the instance of police authority against the petitioner is bad in the eyes of law and deserves to be quashed.
15. Having said so, and the following the earlier orders of this Court passed in M.Cr.C No. 2967/2008 dated 11.10.2013 and in M.Cr.C No. 2967/2008 dated 11.10.2013, this petition is allowed. The FIR registered at Crime No 817/2012 for the offence punishable under Section 3/7 of Essential Commodities Act against the petitioner is hereby quashed.
(S.K. Palo) JUDGE dcs/-