AI Structured Summary
Not yet generated for this judgment
Judgment
Pratap Singh, J.—The Accused concerned in CC. Nos. 14/90, 160/90 12/90, 65/90 and 13/90 on the file of CSCID, Cuddalore and the accused in STC. 56/91 on the file of Special Judge (E.C. Act), Madras, have filed these petitions u/s 482 Code of Criminal Procedure praying to call for the records in the above cases and quash the same.
Short facts are: In Cr. No. 14/90, case is registered against the Petitioner and others for offences under Clauses 3,4 and 5 of the Tamil Nadu Scheduled (Articles Prescription of Standards) Order 1977, (which I shall hereafter refer to as the ''Order'') read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (which I shall hereafter refer to as the ''Act''). The allegations in it are briefly as follows.
On 25.7.1990 at 5.00 p.m. the informant Perumal, Inspector of Police, Kuppusamy, Sub Inspector of Police and party were on the watch; the informant got information that there was adulteration of petrol and diesel in A.R. Dhamodhara Mudaliar and Company, petrol bunk. The informant went to the said petrol bunk and inspected the same. The Manager of the bunk by name Rajalingam agreed to give sample of petrol and diesel, when the informant wanted those samples for the purpose of analysis. After getting his consent, he purchased from the bill clerk by name Anurose, 1-1/2 litres of petrol for Rs. 1656 and 1-1/2 litres of diesel for Rs. 6.66. He poured 500 ml. of petrol each in three white bottles and likewise 500 ml. of diesel in three white bottles, corked and sealed the same. He seized them under cover of mahazar. He gave one such bottle of petrol and diesel to the party and came back with the remaining sample bottles.
In Cr. Nos. 160/90, 12/90, 65/90 and Cr. No. 13/90 cases were registered against the Petitioner for same offences and on similar allegations. In STC. No. 56/91, the respondent in Crl.O.P. No. 10749 of 1991 has filed the charge sheet against the accused for offence under Clause 3 of the order read with Section 7(1)(a)(ii) of the said Act. The allegations in it are briefly as follows:
On 24.7.90 at about 2:30 p.m. the Inspector of Police CSCID inspected Sri Devi Petrol Station situate at No. 483, Mount Road, Madras and during the inspection sample was taken for analysis in accordance with procedure and one sample was sent for chemical analysis. The chemical analytical report reveals that petrol was adulterated one. The accused has violated Clause 3 of the said order by keeping it for sale and sold the adulterated petrol and hence he is liable to be punished under Clause 3 of the said Order read with Section 7(1)(a)(ii) of the said Act.
Mr. N. Natarajan, learned senior counsel appearing for the Petitioners in the first five cases would submit that the Tamil Nadu Scheduled Articles (Prescription of Standards) Order 1977 is invalid in law
(i) in much as it was passed without the prior concurrence of the Central Government
(ii) as it was passed in pursuance of the Government of India, Ministry of Agriculture (Department of Food, Order No. GSR 316 E dated 20.6.1972 and that the amendment including petrol and diesel in the list of Scheduled articles was passed only on 1.3.1988 and by which time, the said G.O.GSR 316 E was superseded by virtue of GSR No. 800 dated 9.6.78.
Mr. N. Natarajan, learned senior counsel would further submit that the Govt. Order No. GSR 316 E was passed by Ministry of Agriculture (Department of Food) in relation to food stuffs: By invoking the said Order, an order cannot be passed prescribing standards for petrol and diesel and that it is contrary to the Business Rules formulated under Articles 77 and 166 of the Constitution of India.
Mr. D. Suresh, learned Counsel appearing for the Petitioner in Crl.O.P. No. 10749 of 1991 made his submissions. I have heard Mr.B. Sriramulu, learned Public Prosecutor on the above aspects.
I shall consider the submission made by Mr. N. Natarajan, learned senior counsel in seriatim. I shall first take up his first submission viz. that the Tamil Nadu Scheduled Articles (Prescription of Standards) Order 1977 is invalid in law and non est, per Section 3 of the EC Act. "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, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein". As per Sub-section (2) of Section 3, an order made under Sub-section (1) may provide the various acts enumerated thereunder. Section 5 of the Act provides for delegation of the abovesaid powers by the Central Government. It reads as follows:
"The Central Government may, by notified order, direct that the power to make orders or issue notifications u/s 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction be exercisable also by:
(a) such officer or authority subordinate to the Central Government, or
(b) Such State Government or such officer or authority subordinate to a State Government as may be specified in the direction"
A conjoint reading of Sections 3 and 5 would show that the Central Government has got the power for passing orders mentioned in Section 3 and as per Section 5, the Central Government may delegate those powers in the manner specified therein.
GSR 316, E issued by the Ministry of Agriculture (Department of Food) dated 20.6.1972, by virtue of which, the said Order of 1977 was passed, reads that in exercise of the powers conferred by Section 5 of the Act, the Central Government directs that the powers conferred on it by Sub-section (1) of Section 3 of the said Act, to make orders to provide for the matters specified in Clauses (a)(b)(c)(d)(e)(f)(h)(i)(ii) and (j) of Sub-section (2) thereof shall, in relation to foodstuffs be exercisable also by a State Government subject to the conditions enumerated in the order. The conditions are also follows:
(1) That such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in this behalf;
(2) that before making an order relating to any matter specified in the said Clauses (a),(c) or (f) or in a record to distribution or disposal of transport of any foodstuff, under the said Clause (d), the State Government shall also obtain the prior concurrence of the Central Government, and
(3) that in making an order relating to any of the matters specified in the said Clause (J) the State Government shall authorize only an officer of Government.
G.S.R. No. 800, dated 9th June, 1978 (Published in the Gazette of India, Part II, Section 3(i) dated 17th June, 1978 at page 1437) reads:
"In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955), and in supersession of the order of the Government of India in the late Ministry of Agriculture (Department of Food), No. GSR 316(B), dated June 20, 1972, the Central Government hereby directs that the powers conferred on it by Sub-section (1) of Section 3 of the said Act to make orders to provide for the matters specified in Clauses (a)(b)(c)(d)(e)(f)(h)(i)(ii) and (j) of Sub-section (2) thereof shall, in relation to foodstuffs be exercisable also by a State Government subject to the conditions:
. .
. . and
. . "
Thus by virtue of G.S.R. No. 800 dated 9.6.1978, GSR No. 316 E dated 20.6.1972 has been superceded.
In these cases, we are concerned with petrol and diesel. In the Order, in the Schedule, petrol and diesel were added as items 7(a) and 7 (b) by virtue of Government Order Ms. No. 218-F and CP. dated 1.3.88. The preamble portion of the said Government order reads as follows:
"In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with Government of India, Ministry of Agriculture (Food Department) Order No. GSR.316 E dt.20.6.1972, published in an extraordinary issue of Part 2 - Section 3(1) of the Gazette of India dated 20.6.1972, the Governor of Tamil Nadu hereby makes the following amendments to the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977:
Thus for making this amendment, by virtue of which petrol and diesel were included items 7(a) and 7(b) in the Schedule to the Order, power given in the G.O.GSR 316 E is invoked. As on 1.3.88, when this amendment was made, the said GSR 316 E was already superceded and no longer available.
Mr. N. Natarajan, learned senior counsel, would submit that when a delegation is made with certain conditions, the delegated power can be exercised only in accordance with the conditions and if the conditions are not complied with, the exercise of the delegated powers and passing an order pursuant to the same are all invalid and non est.
In the instant case as per condition No. 2, in GSR No. 316 E, which I have extracted supra, prior concurrence of the Central Government is required. In the said Order of 1977, it is not stated that the Order was passed with the prior concurrence of the Central Government. Likewise, G.O. No. 216 dated 1.3.88 cited supra also does not state that there was prior concurrence of the Central Government. In the absence of the compliance of these conditions, the exercise of the delegated power is vitiated.
Mr. B. Sriramulu, learned Public Prosecutor would submit that his instruction was that prior concurrence was obtained but it was not quoted in G.O. 218 dated 2.3.1988 and that he is not able to produce any record to show that prior concurrence of the Central Government was obtained. Any way, in the instant case, even without going to this submission, the proceedings are liable to be quashed and so though I am definite that without prior concurrence of the Central Government, G.O. 218 dated 1.3.88 would be an invalid one, still whether prior concurrence was obtained or not is a question of fact, which could not be decided at this stage, because of the submission of Mr. Sri-ramulu that he is today unable to produce the records, in support of the instructions given to him.
G.O.GSR.316 (E) dated 20.6.1991, gives delegation to the State Government to make orders to provide for the matters specified in Clauses (a),(b)(c)(d)(e)(f)(h)(i)(ii) and (j) of Sub-section (2) thereof, in relation to foodstuffs alone. This G.O.G.S.R.316(E) cannot be invoked to pass an order with regard to petrol and diesel, which is outside the scope of the delegated powers. On that ground, all the further proceedings in the cases are liable to be quashed.
To sum up, for the reason that by invoking the powers given under G.S.R.316(E) dated 20.6.91, which was already superseded, the amendment including petrol and diesel was included in Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977 and for the reason that the said Order relating to petrol and diesel was beyond the scope of the delegated powers given under G.S.R.316(E) dated 20.6.91 the said G.O. Ns. No. 218, Food and Consumer Protection dated 1.3.88 is invalid and non est in law. In view of the above, further proceedings in all these cases are liable to be quashed.
In the result, all these petitions are allowed and further proceedings in C. 14/90, 160/90, 12/90, 65/90 and 13/90 on the file of CSCID, Cuddalore shall stand quashed. All further proceedings in STC.56/91 on the file of Special Judge (E.C. Act), Madras also shall stand quashed.