Madhya Pradesh High Court
Balchand Gupta vs The State Of Madhya Pradesh on 2 March, 2016
1
M.Cr.C.No.54/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
MISCELLANEOUS CRIMINAL CASE NO. 54 OF 2016
Balchand Gupta
-Vs-
State of Madhya Pradesh
For the applicant: Shri Sanjay Bahirani, Advocate
For the State: Shri B.K. Sharma, Public Prosecutor.
PRESENT: HON'BLE MR. JUSTICE N.K. GUPTA, J.
ORDER
(02/03/2016) Applicant has preferred the present petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR registered at crime No.347/2015 at Police Station Madhoganj District Gwalior for the offence under Section 3/7 of the Essential Commodities Act (in short ' the EC Act').
2- Facts of the case in short are that the applicant is a proprietor of Bapu Indane Gas and prosecuting a gas agency of Indane gas. On 14-05-2015, the officer of Weights and Measurements empowered under the Legal Metrology Act, 2009 (hereinafter it would be referred as 'the LM Act') inspected the shop of the applicant and found that 24 gas cylinders were kept by the applicant in a vehicle MKW 2826 and on weighing 7 cylinders were found to be underweight 2 M.Cr.C.No.54/2016 and therefore, the case was registered under the LM Act. Thereafter, the applicant moved an application to compound the offence and the offence was compounded. After that, intimation was given to the District Supply Controller, Gwalior who sent a letter to take action against the applicant under the EC Act but the Deputy Controller of Weights and Measurements had informed that after compromise no prosecution can be initiated under the LM Act due to the provisions of Section 48 (5) of the LM Act. Ultimately, the FIR was lodged by the Junior Food Supply Officer, Gwalior (Smt. Pooja Sikarwar) at Police Station Madhoganj District Gwalior for the offence under Section 3/7 of the EC Act. 3- I have heard learned counsel for the parties at motion stage on 25-02-2016.
4- It was mainly contended by learned counsel for the applicant that according to the provisions of Sections 48(5) and 51 of the LM Act, no further prosecution could be initiated against the applicant. Secondly, clause 13 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 (in short 'the Control Order') gives a right of inspection to the officer of Food Department and without such inspection, the Officer of the Food Department cannot initiate the proceedings against the applicant. Thirdly, such proceedings are against the provisions of Section 300 of Cr.P.C. In this connection, learned counsel for the applicant has relied upon the judgment passed by the Apex Court in the case of "Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao & Anr." {(2011) 2 SCC 703}. Reliance is also placed on the 3 M.Cr.C.No.54/2016 order dated 12-03-2015 passed by the Single Bench of this Court in the case of "Rakesh Gupta Vs. State of M.P." (M.Cr.C.No.4086/2008) in which it is held that no second prosecution can be initiated in the light of the provisions of Section 300 of Cr.P.C. Fourthly, it was also submitted that since the applicant did not flout clause 5 of the Control Order, therefore, no offence under Section 7 of the EC Act is made out. It was not established that the applicant sold some gas cylinders containing lesser quantity of the gas to any consumer, therefore, it was prayed that the registration of second crime should be quashed.
5- After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that the LM Act is a special enactment which governs the penal provisions of that Act itself and the food controller did not direct the officer of the LM Act to prosecute the applicant for any penal provision of the LM Act, therefore, for registration of a crime under the EC Act there is no bar of Sections 48 (5) or Section 51 of the LM Act because the bar created under that provision is that after acceptance of compromise, no further prosecution under that Act will be initiated but it was not mentioned that if simultaneously any other crime was constituted then other crime which was not of the LM Act cannot be registered or the accused cannot be prosecuted for other crime. The provisions of Sections 48(5) and 51 of the LM Act are only binding on the officers of the LM Act not to prosecute the accused for any offence under the LM Act when the compromise takes place. In 4 M.Cr.C.No.54/2016 the present case, the officer of the LM Act are not prosecuting the applicant again for any offence under the LM Act and therefore, such prohibition does not give any help to the the applicant. Hence, the officers of the LM Act have informed the food controller that after compounding of the offence, no action will be taken by them and therefore, the Junior Food Supply Officer had lodged an FIR at Police Station Madhoganj District Gwalior.
6- Similarly, clause 13 of the Control Order empowers an inspector or equivalent or superior officer of the Food Supply Department to inspect the shop of the applicant and such distributor but it is not mentioned in that clause that if the inspection was not done by the officer of the Food Department and otherwise intimation is received by the officer of Food Department then no action can be taken against the applicant. Hence, the power of food inspector or the officer vested in clause 13 of the Control Order does not debar the the food inspector or the officer to lodge the case against any dealer on the evidence received from the other source. In the present case, when the officer of Weights and Measurements Department had already inspected and found that the cylinders kept in the vehicle for supply, were underweight and lesser quantity of gas was supplied to the consumer and also the applicant applied for the compromise and offence was compounded then in view of the provisions of clause 13 of the Control Order, it cannot be said that without inspection done by food inspector or the officer, they can not proceed to file a complaint before the SHO of concerned police 5 M.Cr.C.No.54/2016 station, hence the contention of learned counsel for the applicant cannot be accepted that without inspection food controller cannot proceed against the applicant under the EC Act.
7- So far as the objection relating to Section 300 of Cr.P.C. is concerned, this provision and Article 20 of the Constitution of India prohibits the prosecution of a person for two times. Learned counsel for the applicant has referred an order of Single Bench of this Court in the case of Rakesh Gupta (supra), however in that case the complaint under the LM Act was filed and thereafter, matter of the EC Act was filed against the concerned accused. In the present case, the applicant compounded the offence with the officer of the LM Act, therefore, no charge-sheet or the complaint was filed on that account and therefore, in the case registered under the EC Act if the charge-sheet is filed against the applicant then it would not be the second charge-sheet in the eyes of law. It would be first charge-sheet because due to compromise, no charge-sheet or the complaint could be filed against the applicant by the officer of the LM Act whereas in the case of Rakesh Gupta (supra), the charge-sheet was also filed against the accused under the LM Act therefore, when it is not proved that the charge-sheet which is to be filed under the EC Act would be the second charge-sheet, the provisions of Section 300 of Cr.P.C. are not attracted in the present case. 8- Also, in this connection it should be mentioned that the law laid down in Kolla Veera Raghav Rao (supra) cannot be applied in the present case because in that case the accused 6 M.Cr.C.No.54/2016 was convicted for the offence under Section 138 of the Negotiable Instruments Act, therefore, it was laid that second prosecution of offence under Section 420 of IPC could not be initiated. In this connection, the judgment passed by the Apex Court in the case of "Mahesh Chand Vs. B. Janardhan Reddy & Anr." (2003 SCC (Cri.) 425) may also be referred, in which it is led that the second complaint on the same facts could be entertained only in exceptional circumstances namely where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the present case, the officer of the LM Act could not file any FIR before the Police Station Madhoganj under the provisions of the EC Act. They had limited power to prosecute the applicant under the LM Act only and therefore, if the Junior Food Supply Officer had lodged second FIR against the applicant for a different offence constituted on the same set of facts then such second prosecution is permissible according to the ratio led by the Apex Court in the case of Mahesh Chand (supra). Hence, if the officers of the LM Act would have filed the criminal complaint against the applicant then still when they were not competent to proceed under the EC Act, the food officer was entitled to prosecute the second complaint against the applicant under the EC Act.
9- So far as the last contention of the applicant that clause 5 of the Control Order would be applicable on sale or 7 M.Cr.C.No.54/2016 distribution of lesser quantity of gas to the consumer, is concerned, learned counsel for the applicant has submitted that all the gas cylinders were kept in a loading vehicle those were neither sold nor distributed, therefore, the applicant did not flout clause 5 of the Control Order. 10- On the other hand, learned counsel for the State has stated that now a days consumer books a gas cylinder by internet or phone and thereafter the bill is issued in the name of that consumer and employees of the distributor are required to supply the gas cylinder on the basis of bill and receipt issued in favour of the consumer and therefore, if the gas cylinders having lesser gas were loaded in the vehicle for supply on the basis of order given by the consumers then loading of such cylinders in the vehicle includes supply and therefore, the applicant has flouted clause 5 of the Control Order. However, there is nothing on record about the procedure relating to supply of the cylinders to the consumer and it would be dependent upon the factual position of the supply procedure as to whether loading of cylinders on a vehicle for supply comes within the purview of supply or not therefore, at this premature stage it should not be discussed and decided. It would be proper for the trial Court to consider the defence of the applicant on the basis of evidence collected by the prosecution when the charge-sheet is filed. 11- Hence, prima facie it cannot be said that no offence under Section 3/7 of the EC Act is made out against the applicant or Junior Food Supply Officer was not competent to lodge the FIR at Police Station Madhoganj or due to 8 M.Cr.C.No.54/2016 compromise between the officers of the LM Act and the applicant, the applicant could not be prosecuted under the EC Act. Under these circumstances, it is not a case where inherent power of this Court vested under Section 482 of Cr.P.C. may be invoked in favour of the applicant, therefore, the petition under Section 482 of Cr.P.C. filed by the applicant -Balchand Gupta is hereby dismissed at motion stage.
(N.K. Gupta) Judge 02/03/3016 Anil*