Dismissed

M.Shahjahan v. State of Kerala

Kerala HC22 Nov 2016Crl.MC/3/2016

Case brief

AI extract

What is this about?

In a Criminal Misc. Case, the petitioner challenged the registration of a crime alleging violation of the Essential Commodities Act, 1955. The court examined whether the Removal of Specified Food Stuffs Order, 2002, exempted the petitioner from stocking rice without records. Finding that the prosecution established a prima facie case of diverting Public Distribution rice for financial gain, the co

What the court decided

AI extract

M.Shahjahan Vs State of Kerala — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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Crl.MC.No. 3 of 2016 ()

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CRIME NO. 372/2015 OF KOZHINJAMPARA POLICE STATION , PALAKKAD

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PETITIONER:

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M.SHAHJAHAN, AGED 49 YEARS

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S/O MUHAMMED KHANI, 9/313, BISMILLA MODERN RICE MILL VANNAMADA PO, PALAKKAD

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BY ADVS.SRI.T.M.RAMAN KARTHA SMT.SYAMA MOHAN

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RESPONDENTS:

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1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA COCHIN-31

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2. SUB INSPECTOR OF POLICE KOZHINJAMPARA POLICE STATION

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BY ADV. PUBLIC PROSECUTOR SRI. AMJAD ALI.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3 of 2016 () ------------------------

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APPENDIX

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PETITIONER'S ANNEXURES

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ANNEXURE I: THE TRUE COPY OF MAHASAR DT. 18/4/15

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ANNEXURE II: THE TRUE COPY OF FIR IN CRIME NO. 372/15 OF KOZHINJAMPARA POLICE STATION

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ANNEXURE III: THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED TO THE PETITONER UNDER THE KVAT RULES 2005

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ANNEXURE IV: THE TRUE COPY OF THE LICENSE ISSUED TO THE PETITIONE RUNDER THE FOOD SAGETY AND STANDARDS AUTHORITY OF INDIA

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ANNEXURE V THE TRUE COPY OF THE REMOVAL OF (LICENSING REQUIREMENTS, STOCK LIMITS AND MOVEMENT RESTRICTIONS) ON SPECIFIED FOODSTUFFS ORDER,2002

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ANNEXURE VI: THE TRUE COPY OF THE DETAILS OF THE CONTROL ORDERS ISSUED BY THE CENTRAL GOVERNMENT UNDER THE ESSENTIAL COMMODITIES ACT, 1955

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ANNEXURE VII: THE TRUE COPY OF THE ORDER NO. S.O. 3543(E) DT. 29/11/13, EXTENDING THE EXEMPTION OF PADDY AND RICE FROM THE PURVIEW OF ANNEXUTE V ORDER FOR THE PERIOD UPTO 30TH NOVEMBER 2014.

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RESPONDENTS' ANNEXURES: NIL

TRUE COPY

P.A. TO JUDGE.

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 3 of 2016

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- - - - Dated 22^nd November, 2016

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ORDER

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1.The petitioner herein is the proprietor of M/s Bismillah Modern Rice Mill. He challenges the registration of Crime No.372 of 2016 against him alleging violation of section 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'EC Act, 1955') and prays that the same be quashed by this Court invoking the powers under section 482 of the Code of Criminal Procedure.

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2.Facts in brief :- On the basis of secret information received by the District Collector, Palakkad that the petitioner was hoarding rice in violation to the provisions of law, specific instructions was given to the District Supply Officer Palakkad to conduct an inspection in the premises of the petitioner. A squad of Taluk Supply officers were deputed to inspect the premises who

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Crl.M.C. No. 3 of 2016

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conducted a surprise inspection on 18..04.2015 at 12 Hours. A goods autorickshaw with registration No. KL-27A-4968 loaded with 10 bags of boiled rice and 8 bags of raw rice was seen parked in front of the Rice mill . Further 825 kg of Matta Rice, 2925 kg of raw rice and 4083 kg boiled rice were seen stored in the premises without any proper records. Though the petitioner was asked to account for the rice, he was unable to do so. It is in the said circumstance that the aforesaid crime was registered on the basis of the complaint filed by the Taluk Supply Officer.

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3.Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

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4.The learned counsel appearing for the petitioner would submit that the stocking and transportation of rice, paddy etc. has been made license free by introduction of the Removal of (Licensing Requirement, Stock Limits and

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Crl.M.C. No. 3 of 2016

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Movement Restrictions) on Specified Food Stuffs Order, 2002 (hereinafter called the 'Specified Food Stuffs Order, 2002')by the Central Government and therefore the petitioner, who is a registered licensee is free to buy, stock, sell, transport, distribute, dispose, acquire and use or consume any quantity of wheat, rice, etc. and he is not required to have a permit. Referring to Annexures-VI and VII, it is submitted that the exemption existed till 30^th November, 2014 and if that be the case, the initiation of criminal proceedings cannot be sustained.

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5.The learned Public Prosecutor on the other hand has filed a detailed statement and submits that the contention that the petitioner is exempted from the operation of the Removal of Specified Food Stuffs Order, 2002 is clearly misconceived as by section 6 of the order, the operation of the Public Distribution System (Control) Order, 2011 is exempted. The petitioner was not able to produce any

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record or sales bill to account for the seized articles. It is asserted that the 7833 kg of rice found illegally stored in the mill was rice meant for the Public Distribution service and the same was diverted by the petitioner for financial gains. The learned Public prosecutor would then refer to Section3 (2)(i) of the EC Act, 1955 to bring home the point that any person engaged in production, distribution or supply of any essential commodity is required to maintain and produce for inspection such books, accounts and records relating to their business and the fact that the petitioner was unable to do so is clear enough reason to hold that the allegations are prima facie true. If that be the case, this Court will not be justified in terminating the proceedings is the submission.

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6.I have considered the rival submissions and have gone through the records. I am unable to accept the submission of the petitioner that he can stock and sell rice

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as he pleases in view of the Removal of the Specified Food Stuffs Order, 2002. When the prosecution has a definite case that he had stored rice meant for the Public Distribution service and the same was diverted by the petitioner for financial gain and in view of the specific provision contained in section 6 of the order exempting the operation of the Public Distribution System ( Control ) Order, 2011 the said contention cannot be accepted. The petitioner was found possessing large quantity of rice without any supporting records, account statement and bills and if that be the case, this Court in exercise of the powers under section 482 of the Code will not be justified in quashing the proceedings.

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7.The legal position is well - settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence.

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This Court will have to refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The powers cannot be exercised to stifle a legitimate prosecution and has to be exercised sparingly and in rare cases. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In the case on hand the submissions made at the Bar relate

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to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 of the Code. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of R.P. Kapur Vs. State of Punjab (AIR 1960 SC 866), State of Haryana Vs. Bhajan Lal (1992 SCC (Cr) 426), State of Bihar Vs. PP Sharma (1992 SCC (Cr.) 192) and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd.

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Saraful Haq and another (2005 SCC (Cr.) 293).

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I find no merit in the contentions raised and I am of the considered view that the proceedings cannot be quashed at this Stage. Accordingly, this petition is dismissed.

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Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-22.11.16

M.Shahjahan v. State of Kerala

Case brief

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M.Shahjahan v. State of Kerala

Case brief

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