Dismissed

B.Santhosh Kumar v. State of Kerala

Kerala HC1 Dec 2016Crl.MC/3382/2016

Case brief

AI extract

What is this about?

In this Criminal Miscellaneous matter, the High Court of Kerala considered a petition seeking to quash criminal proceedings against two accused alleged of mixing ration rice with branded rice. The petitioner challenged the inspection conducted by the police and the subsequent registration of the FIR under the Essential Commodities Act and Kerala Rationing Order, arguing the police lacked authoriza

What did the court decide?

The petition seeking to quash the criminal proceedings was dismissed.

B.Santhosh Kumar Vs State of Kerala — Cheque Dishonour | 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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THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938

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Crl.MC.No. 3382 of 2016 ()

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CRIME NO. 1220/2015 OF PALODE POLICE STATION , THIRUVANANDAPURAM

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PETITIONER(S)/ACCUSED:

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B.SANTHOSH KUMAR AGED 49 YEARS S/O BHASKARAN, VADAKKEVILA VEEDU, PALAIKONAM, ARYANADU PO, THIRUVANANTHAPURAM

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ROBIN S/O POULOSE, AGED 29 YEARS, PM HOUSE, NEAR KURISSADY, PUTHIYATHURA, POOVAR, THIRUVANANTHAPURAM.

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BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILLA SRI.P.PRIJITH SRI.P.MARTIN JOSE

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RESPONDENT(S)/STATE:

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STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031 (CRIME NO.1220/2015 OF PALODE POLICE STATION)

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THE SUB INSPECTOR OF POLICE PALODE POLICE STATION, THIRUVANANTHAPURAM - 695 562 R1-R2 BY ADV. PUBLIC PROSECUTOR, SRI.SRI.SUMAN CHAKRAVARTHY

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CONTD....

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:2:

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Crl.MC.No. 3382 of 2016 () ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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A COPY OF REGISTERED FIR NO.1220 DATED 23.11.2015 FILED BEFORE THE JFMC(FO), NEDUMANGADU.

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B COPY OF NOTICE DATED 06.08.2015 ISSUED BY THE TALUK SUPPLY OFFICER, NEDUMANGADU

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C COPY OF SUSPENSION ORDER NO.B2 3960/15 DATED 23.11.15 ISSUED BY THE TALUK SUPPLY OFFICER, NEDUMANGADU TO THE 1ST PETITINER.

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D COPY OF REPORT NO.B4 3960/2015 DATED 08.01.2016 ISSUED BY THE TALUK SUPPLY OFFICER TO THE DISTRICT SUPPLY OFFICER,

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E COPY OF JUDGMENT DATED 19.01.2016 IN W.P(C)NO.983/2016 OF THIS HONOURABLE COURT

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F COPY OF HE ORDER NO.C-S-2-5037/2015 DATED 02.03.2016 OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS :: NIL

//TRUE COPY//

P.A. TO JUDGE

SKS

RAJA VIJAYARAGHAVAN.V, J

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Crl.M.C. No. 3382 of 2016

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Dated this the 1^st day of December, 2016

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O R D E R

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~~~~~~~

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1.The petitioners herein are the accused Nos. 1 and 2 in

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Crime No. 1220 of 2015 of Palode Police Station registered

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under clause 5 of the Kerala Rationing Order, 1966 and under Sections 3 and 7 of the Essential Commodities Act, 1955. In the course of investigation, Sections 406 and 409 of the Indian Penal Code were also added to the allegations. The aforesaid proceeding is sought to be quashed by invoking the powers of this Court under Section 482 of the Code of Criminal Procedure .

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2.Before dealing with the contentions of the petitioner, the facts which led to the registration of the Crime shall be briefly narrated:-

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The 1^st accused is an Authorized Wholesale Distributor

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(AWD) appointed under Section 51 of the Kerala Rationing Order, 1996 (hereinafter referred to as 'the Order, 1996' for brevity). On Sunday, the 22^nd of November, 2015, the Sub Inspector of Police, Palode Police station, is alleged to have received reliable information that ration rice was being mixed by the 1^st petitioner with branded rice with intent to sell it in the open market. Being satisfied that any delay in conducting an inspection would enable the accused to carry out the illegal acts, the said officer is alleged to have prepared a search memo and after forwarding it to the Court, entered AWDT-18, licensed in the name of the 1^st accused at 00.30 a.m. on 23.11.2015 and conducted an inspection. The officer found that the accused and his employees were engaged in the act of filling up ration rice meant for public distribution in plastic sacks carrying labels of well known private companies. Certain tell tale signs such as the

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presence of a mechanical sewing equipment, labelled plastic sacks and rice strewn all over the floor of the godown were noted by the officer. The said officer also found that a lorry containing 30 sacks of rice packed in plastic bags was parked in the premises.

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3.The accused were arrested and by Annexure-A search list,

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the Sub Inspector seized the lorry, one REVO brand machine used for sealing and stitching plastic sacks, Electric Weighing equipment of Casio Brand, another weighing balance, 175 Plastic Sacks with Vismaya label, 20 plastic sacks with Surekha label, 100 empty sacks and 30 sacks filled with rice carrying various labels. Intimation was sent to the District Collector , the District Supply Officer as well as the Taluk Supply Officer. On the basis of instructions given by the District Supply Officer, the Taluk Supply officer and his team of officers inspected AWDT 18

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on the same day.

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4.The inspection carried out by the Taluk Supply Officer with the assistance of the Rationing Inspector revealed several irregularities. The license granted to the Whole Sale depot was temporarily suspended on the same day itself. A report was thereafter submitted to the District Collector. The investigation is still pending. It was in the above fact scenario that Crime No.1220 of 2015 was registered which is sought to be quashed in this petition.

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5.I have heard the learned Senior Counsel appearing for the petitioner and also the learned Public Prosecutor.

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6.It is submitted by the learned Senior Counsel that the Rationing Order will not enable the Sub Inspector of Police to conduct an inspection in an Authorised Wholesale Dealership and to effect seizure. Referring to Section

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51 (8) of the Rationing Order, it is urged by the learned

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Senior Counsel that only the District Collector or any of the officer in the Civil Supplies Department not below the rank of Taluk Supply Officer can conduct an inspection in the AWD. Clause 59 of the Rationing Order is also referred to by the learned Senior Counsel to bring home the point that the Sub Inspector has no business in the AWD and when there are no materials before Court that his inspection was in accordance with the provisions of the order, the proceeding can only be treated as illegal warranting interference under Section 482 of the Code .

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7.It is further contended by the learned Senior Counsel that it was as directed by the Taluk Supply Officer by Annexure-B notice dated 6.08.2015 that the petitioner had ventured to clean the humid rice. It was during this process that the Sub Inspector of Police without any legal backing or authorisation had conducted the inspection. It

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is urged that the 1^st petitioner had challenged the order of suspension before this Court and this Court by Annexure-E order had directed the District Collector to consider the matter and pass appropriate orders. Thereafter, the District Collector restored the licence to the petitioner on condition of realisation of the value of stock. The learned Counsel would also rely on the decisions of this Court in Mahadeva Iyyer v. State of Kerala [2004 (2) KLT 562] and Gopalakrishnan Nair v. State of Kerala [ 1987 (2) KLT 669] to bring home the point that even if the prosecution allegation is accepted as such, the offence under various provisions of the rationing order will not be attracted. According to the learned Senior Counsel, this is a fit case wherein this Court will be well justified in quashing the proceedings.

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8.Per Contra, the learned Public Prosecutor would refute the

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submissions of the learned senior counsel and would draw the attention of this Court to Section 10 (A) of the Essential Commodities Act, 1955 and contend that the offences under the Act has been made cognizable and if that be the case , there is no embargo in the SubInspector of Police in conducting an inspection of the premises on the basis of source information. Referring to the various provisions in the Rationing Order, it is submitted that the provisions relied on by the learned Senior counsel would apply only in cases of routine inspection of AWD and not in cases wherein, on the basis of reasonable information, a raid is carried out by a police officer. It is also submitted that in the course of proceedings, the Former District Collector has filed an affidavit wherein it is asserted that when information was received by the Sub Inspector as to the commission of cognizable offence within the limits of his jurisdiction, the

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District Collector and the Taluk Supply Officer was duly intimated and it was under his specific direction that the inspection was carried out. The revocation of licence of the AWD by the District Collector has nothing to do with the registration of the Crime for violation of the provisions of the Order, 1996 and also under various other provisions of the Indian Penal Code is the submission advanced. The learned Public Prosecutor would further contend that the reliance placed on Annexure-B notice which is dated 6.8.2015 to justify the illegal acts committed by the petitioner on 23.11.2015 cannot be justified. The detection and seizure of the stitching machine and the plastic sacks with labels of private companies is also highlighted by the learned Public Prosecutor to bring home the point that this is not a fit case in which the proceedings can be terminated at the threshold. Referring to a catena of decisions, it is pointed out that this Court

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should normally refrain from interfering at the FIR stage as the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.

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9.I have considered the rival submission and I have gone through the records.

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10.The main contention of the learned Senior Counsel is that the inspection conducted by the Sub Inspector is without authorization and hence illegal. However, the District Collector has come on record and have stated that the Sub Inspector was authorized by him to conduct the inspection on 23.11.2015. It is also seen from Annexure-C

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that the Taluk Supply officer and also the Rationing Inspector had inspected the godown on 23.11.2016 and

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had found several irregularities. In that fact scenario, I am of the considered view that this Court will be justified in holding that the inspection carried out was without authorization and on that sole ground the proceedings be brought to a termination. These are matters which should concern the trial Court at the stage of trial.

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11.The decisions cited by the learned Senior Counsel will have no application in the instant case as they were all rendered in cases where the conviction arrived at by the Special Judge for Essential Commodities Act cases were challenged in appeal before this Court. Those decisions cannot be applied in a case wherein the proceedings are sought to be quashed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure.

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12.It is by now settled that terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be

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exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Reference can be made to the following judgments of the Apex Court where a note of caution was sounded to the Courts exercising powers under Section 482 of Cr.P.C.

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13.In R. Kalyani v. Janak C. Mehta and Others [2009(1)

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SCC 516], the Hon'ble Supreme Court had occasion to lay

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down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows:

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However, Dr. Monica Kumar and Another v. State of U.P. and Others [2008 (9) SCC p.798], para 36, held :

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"36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage."

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Propositions of law which emerge from the said decisions are :

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(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

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(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

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(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.”

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14.In Kurukshetra University v. State of Haryana [1977

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(4) SCC 451], the Apex Court had laid down as follows :

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“It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.”

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15.Finally, in Som Mittal V Government of Karnataka

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[2008 (3) SCC 574], it was held as follows:-

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“We may observe here that despite this Court has consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold

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committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.”

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16.After having gone through the materials on record and after hearing the submissions, I am of the considered view that this Court will not be justified in embarking upon an enquiry as to whether the allegations in the FIR are likely to be established in the evidence or not. A perusal of the FIR and the attendant materials dissuades this Court from invoking its extra ordinary powers under Section 482 of the Code of Criminal Procedure.

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17.This Court also will not be justified in dealing into the matters in more detail lest it prejudice either of the

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parties. I am, therefore, of the considered view that the petitioners have failed to make out a case for quashing the criminal proceedings at the threshold itself.

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This petition is dismissed.

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Sd/- RAJA VIJAYARAGHAVAN.V.

JUDGE

SKS

//TRUE COPY//

P.A. TO JUDGE

B.Santhosh Kumar v. State of Kerala

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B.Santhosh Kumar v. State of Kerala

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