Gauhati High Court
M/S Deepjyoti Gas Agency & 2 Ors vs The State Of Assam And Anr on 13 December, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
CRIMINAL PETITION NO. 384/2014
1. M/s Deepjyoti Gas Agency,
Pandu Guwahati, Assam represented
By its proprietor Sri Sudip Ray,
S/o of Late Badal Ray,
C/o Deepjyoti Gas Agency,
Pandu.
2. Sri Sudip Ray,
S/o Late Badal Ray,
C/o Deepjyoti Gas Agency,
Pandu, Guwahati, Assam.
3. Sri Shanti Bhusan Barman Ray,
S/o Late Dinesh Ch.Ray Barman,
C/o Deepjyoti Gas Agency,
Pandu, Guwahati, Assam
----- Petitioners
- VERSUS -
1.State of Assam
2. Deputy Commissioner, Kamrup
Guwahati
3. Sri. Balin Kumar Borgohain,
Inspector of Food & Civil Supplies,
BIEO, Assam,
Near DGP Office, Ulubari,
P.S. Paltanbazar,
Guwahati-781024.
----- Respondent
BEFORE Hon'ble Mr. Justice Hitesh Kumar Sarma Advocate for the Petitioners : Mr. R Dubey.
Advocate for Respondent No. 1 : Mr. NK Kalita, learned Additional Public Prosecutor, Assam Date of hearing :16th of November, 2017.
Date of Judgment: 13th of December, 2017.
Criminal Petition No. 384 of 2014 Page 1 of 14
JUDGMENT & ORDER (CAV) By this judgment, I propose to dispose of the Crl Petition No. 384/2014 filed by M/s Deepjyoti Gas Agency under Section 482 of the Code of Criminal Procedure (Cr.PC) for quashing the proceedings in CR Case No. 388C/2004, pending in the Court of Addl. Chief Judicial Magistrate, Kamrup (M), Guwahati.
[2] The case of the petitioner is that it is engaged in the business of supply and distribution of LPG cylinders. As against the petitioner, a complaint has been lodged by the Inspector of Food & Civil Supplies, BIEO, Assam under Section 7 of the Essential Commodities Act, 1955 which has been registered as CR Case No. 388C/200, presently pending in the Court of Addl Chief Judicial Magistrate, Kamrup (M), Guwahati. The allegations levelled against the petitioner is that on 30.5.2000 an inspection was done at the premises of M/s Deepjyoti Gas Agency to verify a source information. In the course of inquiry, it was found that M/s Deepjyoti Gas Agency is an appointed distributor of LPG of Indian Oil Corporation (IOC). During inspection it was also found that the petitioner is carrying on the business of purchase, sale and storage for sale of LPG cylinders without having the required licence as provided in Clause-3 of the Assam Trade Articles (L&C) Order, 1982, (hereinafter referred to as the Control Order, 1982) as amended upto date. Thereafter, the Inspecting team made some seizures and after receiving Criminal Petition No. 384 of 2014 Page 2 of 14 the sanction for prosecution from the Deputy Commissioner, Kamrup, lodged the written complaint against the petitioner. [3] I have heard Mr. R. Dubey, learned Counsel appearing for the petitioner. I have also heard Mr. NK Kalita, learned Additional Public Prosecutor for the State of Assam.
[4] On perusal of the Annexure 5, the written complaint, it appears to be an admitted position that the petitioner is carrying on the business of LPG distribution as an appointed distributor of LPG of Indian Oil Corporation (IOC). However, since a dispute has been raised with respect to real meaning an import of Annexure-I I deem it necessary to bring on record as the contents of Annexure-I. [5] Clause 2 of Annexure I states that by the Letter of Intent, the LPG distributorship was offered to the petitioner No. 2. For the sake of convenience, the contents of Clause 2 of Annexure I is reproduced herein below;
"Please be informed that by this Letter of Intent, we propose to offer you the LPG Distributorship at Pandu on the following terms and conditions."
[6] In view of the specific admission made in the complaint petition regarding the status of the petitioners are Distributors of LPG cylinders under IOC and also in view of the specific Clause of Annexure-I nothing survives for discussion so far as the objection of the learned Criminal Petition No. 384 of 2014 Page 3 of 14 Additional Public Prosecutor is concerned that petitioners are not Distributors of LPG Cylinders under IOC.
[7] Now, the principal allegation against the petitioners is that they did not obtain any licence under the Control Order, 1982, for carrying out the trade under of LPG distributorship. [8] As the records reveal Annexure-3 is the licence granted to the petitioners under the Assam Trade Articles (L & C), Order, 1982, but this licence was granted after the inspection was made. The licence was granted on 22.4.2003, whereas the inspection was done on 30.5.2000. [9] The plea of the petitioners is that their distributorship is governed under the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, and not under Assam Trade Articles (L & C), Order, 1982. Mr. Dubey, learned Counsel for the petitioners, submitted that since the petitioners have been granted Distributorship license under the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, it is permitted to carry on the business of distribution of LPG cylinders. Mr. Dubey, further submits that if any Clause of the Control Order, 1982 is in conflict with Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, then the latter, being a Central law shall prevail over former, the State law. [10] On the other hand the learned Additional Public Prosecutor has submitted that Assam Trade Articles (L & C), Order, 1982 has been enacted under Section 5 of the Essential Commodities Act, 1955, as empowered by the Central Government and hence, it is a valid law. Criminal Petition No. 384 of 2014 Page 4 of 14 [11] The first point, which arises for consideration, is whether Liquefied Petroleum Gas is a commodity covered under the Assam Trade Articles (L & C), Order, 1982. In this regard Section 2(y) of the Assam Trade Articles (L & C), Order, 1982 defines trade article to mean any commodity mentioned in Schedule I of the said Order, 1982. It may be mentioned that at the time of making of the Control Order, 1982, LPG was not a scheduled commodity within the meaning of "the commodities mentioned in the Schedule I" to the Control Order, 1982, however, LPG was inserted in Schedule I vide Notification No. SDA 96/80/1/Pt/17 dated 30.01.1985. Hence, the Assam Trade Articles (L & C), Order, 1982, is applicable to the distributors of LPG cylinders subject to validity of the law which is being discussed hereinafter.
VALIDITY OF LAW: -
[12] It may be mentioned at the outset that the Control Order, 1982, seeks to regulate commodities, which have been declared as essential. Section 3 of the Essential Commodities Act provides that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Criminal Petition No. 384 of 2014 Page 5 of 14 [13] Section 3(2), among others, contains the purposes for which the powers under Section 3(1) of the EC Act may be exercised. [14] In order to ascertain the nature of delegation it would be necessary to ascertain the nature and manner of control which the Central Government may exercise in relation to production, supply and distribution of essential commodity. In this regard, Section 3(2) provides as follows;
2) Without prejudice to the generality of the powers conferred by sub-
section (1), an order made thereunder may provide--
for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;
for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
for controlling the price at which any essential commodity may be bought or sold;
for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
Criminal Petition No. 384 of 2014 Page 6 of 14
to sell the whole or a specified part of the quantity held in stock or produced or received by him, or in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1.--An order made under this clause in relation to foodgrains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.
Explanation 2.--For the purpose of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar [15] Section 5 of the Essential Commodities Act, 1955, on the other hand, empowers the Central Government to delegate its powers, vested to it by Section 3 of the Act to the State Government. Section 5 provides as follows;
Section 5. Delegation of powers The Central Government may, by notified order, direct that the power to make orders or issue notifications under Section shall, Criminal Petition No. 384 of 2014 Page 7 of 14 in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-- such officer or authority subordinate to the Central Government, or such State Government or such officer or authority subordinate to a State Government, as may be specified in the direction.
[16] What Section 5 provides is that the power exercisable by the Central Government with reference to the subject matters mentioned in Section 3 of the Act may be delegated to the State Government. Since, the Control Order, 1982, deals with essential commodities it is an Order made in exercise of power delegated under 5 of the EC Act. On a reading of Section 5 of the Act it is obvious that powers delegated under Section 5 in relation to making of Orders is not absolute rather; subject to conditions as may be imposed by the Central Government. It would be necessary to refer in this context the Notification by virtue of which the powers under Section 3, in relation to making of Orders, were delegated to the State Government to ascertain the subjects on which Orders could be made.
[17] In exercise of powers conferred by Section 5 of the Act, the Central Government issued two specific Notifications, viz S.O 681(E) dated 30.11.1974 and S.O. 682(E) and G.S.R. 800 dated 9.6.1978. These Notifications, , upon their analysis reveal that powers under Section 3 with respect to regulation of production, supply and distribution of Criminal Petition No. 384 of 2014 Page 8 of 14 essential commodities were issued with respect essential commodities other than foodstuffs and fertilisers, essential commodities that come within the ambit of foodstuffs. The S.O 682(E) further provides no Order shall be issued in pursuance of the powers delegated if the Order of the State Government is inconsistent with the Order made by the Central Government.
[18] S.O. 681(E) further reveal that the State Government, while making any Order on essential commodity other than foodstuff, would need prior concurrence of Central Government only when the Order pertains clause (f). Clause (f) of Section 3(2) provides as follows;
[(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
to sell the whole or a specified part of the quantity held in stock or produced or received by him, or in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Criminal Petition No. 384 of 2014 Page 9 of 14 [19] In the light of the above analysis it now needs to be seen whether the Control Order, 1982, stands the test of validity in view of the Notifications referred above.
[20] The object of the Control Order, 1982, can be gathered from Section 3 which provides for Licensing of Dealers. Section 3 provides that no dealer shall, after the commencement of this Order, carry on business of purchase, sale or storage for sale of any trade article as mentioned in Schedule I except under a licence issued by the licensing Authority.
[21] In view of Section 3 of the Control Order, 1982, it is apparent that the Order is with reference to Clause (d) of Section 3(2) which provides for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity.
[22] Since LPG is not a foodstuff the delegation of powers by the Central Government is covered by S.O 681(E). Hence, no prior concurrence of the Central Government is required in making of an order such as Assam Trade Articles (L & C) Order, 1982, because the scope of this Order is not covered by Clause (f) of Section 3(2). [23] Now, the only ground on which the Control Order, 1982, can be termed as bad in law is if it is inconsistent with any Order of the Central Government as provided in Clause (iii) of S.O 682(E). [24] Section 14 of the LPG Order, 2000 provides that the provisions of this Order shall have overriding effect notwithstanding Criminal Petition No. 384 of 2014 Page 10 of 14 anything contained in any Order made by a State Government or a Union Territory Administration.
[25] Now, "Inconsistent", according to Black's Legal Dictionary, means "mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other". [26] The learned Counsel for the petitioner could not bring to the notice of this Court any facets of inconsistency existing between the Control Order, 1982, and the LPG Order, 2000. Thus, whereas the LPG Order, 2000, enables a Government Oil Company to appoint a distributor for carrying out the supply and distribution of LPG cylinders, the condition in Section 3 of the Trade Articles Order, 1982, that no dealer, shall after the commencement of this Order, carry on business of purchase, sale or storage for sale of any trade article as mentioned in Schedule I except under a licence issued by the licensing Authority, only seeks to further supplement the LPG Order, 2000.
[27] Learned Counsel for the petitioner also relied on the case of State of Kerala vs. All Kerala Bharat Gas Distributors Association reported in (2016) 2 KLJ 221, 2016 SCC OnLine Ker 5542 wherein it has been held that that the Kerala Petroleum Products Dealers Licensing Order, 1981 is unenforceable and void and that no penal consequences can follows for the infraction of the provisions of the Kerala Petroleum Products Dealers Licensing Order, 1981.
Criminal Petition No. 384 of 2014 Page 11 of 14 [28] I have perused the case of All Kerala Bharat Gas Distributors Association (supra). The Kerala Petroleum Products Dealers Licensing Order, 1981, is distinguishable from the Control Order, 1982, inasmuch as the Kerala Petroleum Products Dealers Licensing Order, 1981, was made on the strength of Notification S.O 3524 dated 13.11.1962 whereas the Control Order, 1981 was made on the strength of Notification S.O 681(E) dated 30.11.1974, S.O. 682(E) and Notification No. G.S.R 800 dated 9.6.1978. The Hon'ble Kerala High Court held that Orders issued by the Central Government, on LPG, are later in point of time and expresses the latest will of the Central Government. Whenever two Statutes cover the same subject, it is well established that the Statute later in point of time prevails.
[29] The Control Order, 1982, does not deal exclusively with LPG rather; it deals with several trade articles as mentioned in Schedule I of the Control Order, 1982. Unlike the State of Kerala, the State of Assam has not enacted a specific Order on LPG under its delegated powers. The Control Order, 1982, seeks to rationalize the distribution of certain specified essential commodities according to exigencies and LPG being one of them. I am thus of the opinion that the case of All Kerala Bharat Gas Distributors Association (supra) is distinguishable on facts of the present case.
[30] This apart, the validity of Trade Articles Order, 1982, was challenged in the case of Chittaranjan Baruah vs. State of Assam reported in (2007) 1 GLR 773. This Hon'ble Court had held that from a careful Criminal Petition No. 384 of 2014 Page 12 of 14 reading of S.O. 681(E), held that the State government has not been given the power to make any order in respect of the subject-matters, which are governed by clauses (a), (b), and (c) of sub-section (2) of section 3. What, however, important to note is that while section 3(2)(a) provides for regulating, by licences, permits or otherwise, the production or manufacture of any essential commodity, clause 3(2)(h)(ii) provides for the grant or issue of licences, permits or other documents, the charging of fees therefor, the deposit of such sum, if any, as may be specified in the order, as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, find the adjudication of such forfeiture by such authority as may be specified in the order. This clearly shows that while the Central Government as well as the State Government can make orders in respect of petroleum and petroleum products, it is the Central Government, which has the exclusive power to make orders for regulating, by licences, permits, or otherwise, the production or manufacture of petroleum or petroleum products and so far as the State Governments are concerned, they can make order as regards any other licence, which may be granted in conformity with the provisions of sub-clause (ii) of clause (h) of sub-section (2) of section 3. Viewed, thus, it is clear that as long as the Control Order of 1982, in respect of petroleum and petroleum products, falls within clauses (d) to
(j) of sub-section (2) of section 3, the order cannot be said to be ultra Criminal Petition No. 384 of 2014 Page 13 of 14 vires, for, the State Government does not, in such a case, exceed the powers delegated to it by the Central Government. [31] I am in respectful agreement with the law laid down in Chittaranjan Baruah (supra).
[32] In the result, I find no merit in this Criminal petition and the same is accordingly dismissed.
[33] Interim order passed on 02.06.2014 stands vacated. [34] Send down a copy of this order forthwith to the learned trial Court with reference to CR Case No. 388C/2004.
JUDGE Nilakhi Criminal Petition No. 384 of 2014 Page 14 of 14