Allowed

Smitha (Smitha Karthikapally) v. State of Kerala

Kerala HC13 Dec 2021Crl.MC/405/2017

Case brief

AI extract

What is this about?

This Criminal Miscellaneous Case allowed quashing of the final report under Sections 3 and 7 of the Essential Commodities Act. The Court held that due to the 2002 Central Government Order removing stock limits and licensing requirements, no offence was established and the proceedings were unsuccessful.

What did the court decide?

Annexure-B final report and all further proceedings in C.C. No. 886/2014 were quashed.

Smitha (Smitha Karthikapally) Vs State of… — Contract and Commercial Disputes | Kerala HC (2021)

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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 ZIYAD RAHMAN A.A.

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MONDAY, THE 13^TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

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CRL.MC NO. 405 OF 2017

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AGAINST THE ORDER/JUDGMENT IN CC 886/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY

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PETITIONER/S:

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1 SMITHA (SMITHA KARTHIKAPALLY) AGED 32 YEARS W/O. DINU K.KURIAN, AGED 32 YEARS, KIZHAKKEBHAGATH HOUSE, KADAVOOR VILLAGE,KADAVOOR KARA, PUNNAMATTOM BHAGAM,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

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2 RAJISH P. THAKAPPAN @ RIJO AGED 32 YEARS S/O. THANKAPPAN, AGED 32 YEARS, PULAPPUKALLEL HOUSE, KADAVOOR 4TH BLOCK BHAGAM, NJARAKATTU KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

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BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.C.JAYAKIRAN SRI.M.REVIKRISHNAN

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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SRI. ARAVIND V. MATHEW, PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 405 OF 2017

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O R D E R

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Petitioners are the accused Nos. 1 and 2 in C.C. No. 886 of 2014 on the file of Judicial First Class Magistrate Court, Kolencherry. The aforesaid cases arises from Crime No. 9 of 2011 of Kunnathunadu Police Station.

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The prosecution case is that on 01.01.2011 at about 4.30 PM, the Sub Inspector of Police had conducted a search at the company named ‘Annam Agro Foods Ltd’ wherein the 1^st petitioner is the owner of the company and the 2^nd petitioner is the Manager of the company. During the said search, several sacks of wheat were found stocked unauthorizedly, which were meant to be distributed through the public distribution system. It was revealed that entire articles were seized by the Police and accordingly the above said crime was registered against the first and second petitioners.

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After completing the investigation, Police submitted Annexure-B final report, alleging offences under Section 3 and 7 of the Essential Commodities Act, 1955 (in short 'the Act'). The seized articles were entrusted with the Taluk Supply Officer, Kunnathunadu in Annexure-B, and confiscation proceedings were initiated as

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contemplated under the Act. The order of confiscation by the District Collector is evidenced by Annexure-C. The said order of confiscation was challenged before this Court in WP(C)Nos.307/2011 and 3211/2011 and the same were disposed of by this Court delegating the petitioners to resort to the appellate remedies.

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Consequently, the appeal was submitted by the petitioners before the Commissioner of Civil Supplies and it culminated in Annexure-C order.

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The main contention put forward before the Commissioner of Civil Supplies was that, the proceedings which were initiated against the petitioners for violation of the provisions contained in clauses 3, 4 and 5 of Kerala Roller Flour Mills Wheat and Wheat Products Stock Limits Order, 1993, cannot not be made applicable to the facts of the case, consequent to the enactment of Removal of (Licensing requirements stock limits and movement restrictions) on Specified Food Stuffs Order, 2002, by the Central Government. After considering the aforesaid contention, the appellate authority found that, the violation alleged against the petitioners was under the 1993 Order formulated by the State Government, which is no longer in

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force by virtue of the order formulated by the Central Government in

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the year 2002. It was specifically held that, by virtue of the stipulations contained in the Order 2002, it was not necessary for the petitioners to obtain any license under the 1993 Order passed by the State Government and therefore, it was found that there is no legal infirmity in the petitioners holding the articles, which were seized by the police from their custody. Accordingly, the order of confiscation was set aside and the articles were later released to the petitioners therein.

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The petitioners have filed this Criminal Miscellaneous case seeking to quash Annexure-B final report.

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Heard Sri.M.Revikrishnan, the learned counsel for

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petitioners and Sri.Aravind V.Mathew, the learned Public Prosecutor.

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The main contention of the learned counsel for the petitioners is that, the appellate authority, while deciding the question of confiscation, arrived a categorical finding and upheld the right of

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the petitioners to hold the articles. It was further contended that it was not obligatory for them to obtain any license for the purpose of the keeping aforesaid stock of articles with them. It was also pointed

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out that, even though there is an allegation in the final report to the effect that aforesaid articles were meant for distribution through public distribution system, absolutely no materials were produced along with Annexure-B final report to substantiate the same. It was also pointed out that no violation of the Kerala Rationing Order, was also pointed out by the police. In such circumstances, petitioners seek to quash the entire proceedings as against them. On the other hand, the learned Public Prosecutor seriously opposes the same.

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The only question that arises is as to whether the offence under Section 3 and 7 of the Act are attracted or not. The aforesaid provisions are extracted hereunder for easy reference:

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“ 3 . Powers to control production, supply, distribution, etc., of essential commodities.― (1) 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, 1 [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.

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7. Penalties.― 1 [(1) If any person contravenes any order made under Section 3,― (a) he shall be punishable,― (i) in the case of an order made with reference to clause (h) or clause (i) of 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

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which shall not be less than three months but which may extend to seven years and shall also be liable to fine:”

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Thus, in order to attract the said offence, it should be shown that, any of the orders passed under section 3 of the Act were contravened. In this case, even though it is alleged that the articles seized were intended to be distributed through public distribution system, there are no materials to show the same. Annexure-B final report or the statements of any of the witnesses do not contain, any details as to the source from which the petitioners have procured these articles. The only allegation is that at the time of inspection they were found to be in possession of the certain quantity of wheat, which were in kept in sacks with seals of the Food Corporation of India thereon. However, merely because of the reason that the sacks were having the seal of the Food Corporation of India, it cannot be concluded that the same was intended to be distributed through the public Distribution System. On the other hand, in order to establish the offences mentioned above, there must be some material to show that they have procured the said articles from some sources which form part of the Public Distribution System. There are no materials to

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arrive at the said findings in this case. No attempt is seen made to find out the source from which the same were procured.

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This aspect gains importance particularly because of the specific findings entered by the Commissioner of Civil Supplies in Annexure-C order. In the said order, the question of right of the petitioners to hold the aforesaid articles were specifically considered. After considering the objections raised by the respondent, it was found that, none of the violations alleged against the petitioners herein, are sustainable. The aforesaid order indicates that, the entire proceedings initiated against the petitioners were basically on the allegation that the petitioners have kept excess stock than they were actually permitted to hold, by virtue of the Kerala Roller Flour Mills Wheat and Wheat Products Stock Limits Order, 1993, passed by the state Government. In Annexure C order, it was categorically found that, by virtue of the introduction of Removal of (Licensing requirements stock limits and movement restrictions) on Specified Food Stuffs Order, 2002, passed by the Central Government, the Order, 1993 passed by the State, is no longer in force. The Order 2002 of Central Government, does not provide for requirement of any

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permit or license for the dealer in purchasing or stocking the articles mentioned therein, which includes wheat as well. Clauses 3 and 4 of Removal of (Licensing requirements stock limits and movement restrictions) on Specified Food Stuffs Order 2002 reads as follows: .

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“ 3. With the coming into effect of this Order any dealer may freely buy, stock, sell, transport, distribute, dispose, acquire, use or consume any quantity of wheat, paddy/rice, coarse grains, sugar, [edible oilseeds and edible oils, pulses, gur, wheat products (Namely maida, rava, suji, atta, resultant atta and bran) and hydrogenated vegetable oil or vanaspathi]and shall not require a permit or license therefor under any order issued under the Essential Commodities Act, 1955.

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The provisions of this Order shall take effect notwithstanding anything to the contrary in any Order made by a State Government before the commencement of this Order except as respects anything done, or omitted to be done, thereunder before such commencement.”

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It is evident from Rule 3 thereof that wheat is an item specifically included therein and therefore, there was no prohibition for the petitioners in holding the stock of wheat irrespective of the quantity thereon. This was the reason by which, it was found in Annexure C that, the petitioners are entitled for the wheat seized from their possession. In the light of the aforesaid finding in Annexure C, the right of the petitioners herein over the articles were established. The entire stock were also released to them

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unconditionally by virtue of Annexure C order. This would fortify the case of the petitioners that, no violation of any of the orders passed under section 3 of the Act are established. Therefore, chances of a successful prosecution in this case are very bleak. This is particularly because of the reason that, it is reported that the said wheat which was released to them without any conditions on the basis of Annexure-C, were already utilized by them. Therefore, it may not be practically possible for the prosecution to establish that the said articles were procured from the Public distribution system. It is also a relevant fact to be taken note that no allegations of violating the provisions of Kerala Rationing Order have also been mentioned in the final report and no offences contemplated therein were also charged. In such circumstances, allowing the prosecution to continue would be an unnecessary and unwanted exercise. Hence, I do not think that any fruitful purpose would be served, by permitting the prosecution to go on with the proceedings.

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In such circumstances, I allow this criminal miscellaneous case and quash Annexure-B final report and all further proceedings

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pursuant thereto in C.C. No.886/2014 pending on the files of the Court of the Judicial Magistrate of the First Class, Kolencherry.

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Sd/-

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ZIYAD RAHMAN A.A., JUDGE

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CRL.MC NO. 405 OF 2017

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APPENDIX OF CRL.MC 405/2017

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PETITIONER EXHIBITS

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ANNEXURE-A	TRUE COPY OF THE FIR IN CRIME NO. 9/2011 OF
	KUNNATHUNADU POLICE STATION, ERNAKULAM RURAL DATED 02.1.2011 ALONG WITH THE SEIZURE MAHAZAR
	PREPARED BY THE SUB INSPECTOR OF POLICE, KUNNATHUNADU POLICE STATION.
ANNEXURE-B	TRUE COPY OF THE FINAL REPORT IN CRIME NO. 9/2011 OF KUNNATHUNADU POLICE STATION,
	ERNAKULAM RURAL NOW PENDING AS CC NO. 886/2014 BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, KOLENCHERRY.
ANNEXURE-C	TRUE COPY OF THE ORDER PASSED BY THE COMMISSIONER OF CIVIL SUPPLIES DATED 10.8.2015
	IN THE STATUTORY APPEAL PREFERRED BY THE 1ST PETITIONER HEREIN BEFORE THE SAID AUTHORITY.
ANNEXURE-D	TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY
	THE 1ST PETITIONER IN FAVOUR OF THE 2ND PETITIONER DATED 01.11.2010.
ANNEXURE-E	TRUE COPY OF THE REPORT DATED 19.01.2011 ISSUED BY THE FOOD CORPORATION OF INDIA REGARDING
	THESE STOCK OF WHEAT SEIZED IN THE INSTANT CASE, ON INSPECTION OF THE SAME.

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// True Copy // PA To Judge

Smitha (Smitha Karthikapally) v. State of Kerala

Case brief

What is this about?

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Smitha (Smitha Karthikapally) v. State of Kerala

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