Ashok Kumar Jain vs State of Punjab

M.L. Singhal, J.

Prosecution case briefly stated is that Ashok Kumar & Sons was appointed as authorised chief distributor of kerosene by M/s. Hindustan Domestic Oil & Gas Co. Bombay Ltd. vide No. HDO&G/4795/9394 dated 25.3.1994. Ashok Kumar Jain was the proprietor of this business concern. This business concern was authorised to appoint subdistributors for Ferozepur tehsil. This business concern brought 14,000 litres of kerosene at the place of its business at Ferozepur Cantt. and entered the same in the stock register. Ashok Kumar Jain distributed kerosene to his subdistributors namely M/s. Sunil Kumar, M/s. Muninder Nath, M/s. Moga Auto Medicines, M/s. Narul Enterprises, M/s. Naresh Pal, M/s. Satish Kumar & Co., M/s. Kisan Taka Store, M/s. Sethi Oil Store etc. It was free sale kerosene oil. He has no licence to deal in the wholesale of kerosene at that time. No retailer or depot holder could sell more than 18.5 litres of kerosene without licence at one time. This business concern thus violated the rules of PLD/Kerosene Licencing JUDGMENT 1978 by the sale of kerosene. None of the subdistributors had any licence for retail sale of kerosene. Ashok Kumar & Sons violated the licencing order by the sale of kerosene to the aforesaid subdistributors without licence. Subdistributors also violated the Punjab Light Diesel and Kerosene Dealers Licencing JUDGMENT 1978. By contravening the provisions of JUDGMENT of 1978, Ashok Kumar & Sons violated the provisions of Section 7 Essential Commodities Act. Subdistributors also did not have licence to deal in the sale of kerosene, and as such they also violated the provisions of Section 7 Essential Commodities Act. Assistant Food & Supplies Officer brought these facts to the notice of District Food & Supplies Officer, Ferozepur through letter dated 15.11.1994. District Food & Supplies Officer brought these facts to the notice of District Food & Supplies Controller through memo dated 21.11.1994. District Food & Supplies Controller brought these facts to the notice of Senior Superintendent of Police, Ferozepur vide letter dated 6.2.1995 Annexure P1. Case FIR No. 74 dated 19.11.1995 was registered at PS Ferozepur Cantt. under Section 7 of the Essential Commodities Act, 1955 read with the provisions of the JUDGMENT of 1978 against M/s. Ashok Kumar & Sons and their aforementioned subdistributors. Ashok Kumar Jain has knocked the door of this court through this Crl. Misc. petition filed under Section 482 Cr.P.C. praying that FIR No. 74 (ibid) be quashed urging that no licence was required by them to deal in the sale of kerosene in view of the introduction of parallel marketing system by the Kerosene (Regulation of use and fixation of ceiling price) JUDGMENT 1993 promulgated under the Essential Commodities Act. Central Govt. in the Ministry of Petroleum and Natural Gas issued notification on 2.11.1993 in exercise of the powers vesting in it under Section 3 of the Essential Commodities Act 1955. "Parallel marking system" means "the system other than the public distribution system under which a person imports, transports, packs, distributes or sells kerosene under his own arrangement." Kerosene (Regulation of use and fixation of ceiling price) JUDGMENT 1993 was passed under the parallel marketing system which is entirely different from the order of 1978. Dealer as defined in the order of 1993 means "a person, firm, association of persons, company, institution, orgnisation or a cooperative society approved by Government Oil Company or Central or State Government or a parallel marketeer and engaged in the business of buying and selling kerosene". So far as Ashok Kumar & Sons is concerned, this business concern was appointed by Hindustan Domestic Oil & Gas Company as Chief Distributor in tehsil Ferozepur. Government oil company as defined in that order means "any other Government company or a statutory body declared by notification to be a Government Oil Company by the Central Govt. for the purpose of this order." Hindustan Domestic Oil & Gas Company is an entrant to parallel marketing system. Parallel marketing system was introduced under the LPG (Regulation of Supply and Distribution) JUDGMENT 1993 and Kerosene (Regulation of use and fixation of ceiling price) JUDGMENT 1993 by the Govt. of India through letter Annexure P5 addressed to the Secretary, Food & Supplies, Punjab, Chandigarh. HDO&G Co. Bombay Ltd. is a parallel marketeer of kerosene etc. Ashok Kumar & Sons was appointed dealer by competent legal authority namely HDO&G Co. Bombay Ltd. importers of LPG, kerosene and petroleum products. No objection certificate was issued by the Distt. authorities, Ferozepur before the appointment letter Annexure P2 to M/s. Ashok Kumar & Sons was issued by the HDO&G Co. Bombay Limited.

It is further averred that offence, if any, was committed after 2.4.94 i.e. before FIR was registered on 19.11.1995 i.e. after a lapse of about 19 months. There is no explanation so far as this delay is concerned. Delay unexplained will knock out the very bottom of the case. In the reply filed by the State of Punjab to the aforesaid averments made by the petitioner, it was urged that no distributor could be appointed as per the JUDGMENT of 1993. JUDGMENT of 1993 has provided only the appointment of dealer. Ashok Kumar & Sons was not dealer but chief distributor. Appointment of subdistributor was made before issuance of kerosene to them. Kerosene was distributed on 2.4.1994 and the appointment of subdistributor M/s. Kisan Taka Store was made on 27.4.1994 on the letter pad of HDO&G Co. Bombay Ltd. allegedly by the Manager which was illegal. Letter allegedly issued by the Manager of HDO&G Co. Bombay to M/s. Kisan Taka Store appointing them authorised distributor is Annexure R1. Ashok Kumar & Sons was not entitled to distribute the kerosene without first obtaining the licence under the JUDGMENT of 1978, Annexure R2. As per the provisions of Clause 2(c) of the JUDGMENT of 1993, a dealer can be appointed. HDO&G Co. Bombay Limited is not a Government Oil Company. Government Oil Company is defined in Clause 2(f) of the JUDGMENT of 1993. HDO&G Co. Bombay Ltd. is a private sector company. It was further urged that Ashok Kumar & Sons was liable under Section 7 of the Essential Commodities Act as they had distributed kerosene without obtaining licence as required under Section 3 of the JUDGMENT of 1978.

I have heard the learned counsel for the petitioner, learned Assistant Advocate General for the State of Punjab and have gone through the record. Vide letter Annexure P5 issued by the Govt. of India, Ministry of Petroleum and Natural Gas, New Delhi to Secretary, Food & Supplies, Punjab, parallel marketing of kerosene was introduced. Private parties desirous of entering into parallel marketing of LPG, kerosene and LS/HS diesel were to intimate their intention to the Government of India and their capabilities to import, bottle, market, distribute and or sell such products before commencement of these activities and submit a monthly report giving details of the products imported by them. Private sector agencies were permitted to sell LPG and LS/HS at market determined price under their own arrangements. HDO&G Co. Bombay Ltd. is a private sector company. It does not fall within the ambit of Government Oil Company. To the Govt. oil company meaning has been attached in Clause 2(f) of the JUDGMENT of 1993. Clause 2(f) reads as under :

"Government Oil Company" means :

(i) the Indian Oil Corporation Limited

(ii) the Bharat Petroleum Corporation Limited

(iii) the Hindustan Petroleum Corporation Limited.

(iv) the IBP Co. Ltd.

(v) the Oil & Natural Gas Commission

(vi) the Gas Authority of India Limited

(vii) the Oil India Limited, or

(viii) any other Government company or a Statutory Body declared by notification to be a Government Oil Company by the Central Government for the purpose of this order.

It is obvious that HDO&G Co. Bombay Ltd. is not Government Oil Company. Parallel Marketeer as defined in Section 2(h) of the 1993 JUDGMENT means any person, firm, company, institution, association of persons, cooperative society or organisation carrying on the business of importing, refining, producing, packing, marketing, distributing and selling kerosene under the parallel marketing system. It is obvious that HDO&G Co. Bombay Ltd. is a private sector company. Parallel marketing system as defined in Section 2(i) of 1993 JUDGMENT means the system other than the public distribution system under which a person imports, transports, packs, distributes or sells kerosene under his own arrangement. It stands confirmed now that HDO&G Co. Bombay Ltd. is a private sector company importing, transporting, distributing or selling kerosene under their own arrangements. Public distribution system means the system of distribution, marketing or selling of kerosene at declared price through a distribution system approved by the Central or State Government, as defined in Section 2(j) of the 1993 JUDGMENTDealer as defined in Section 2(c) of the 1993 JUDGMENT means a person, firm, association of persons, company, institution, organisation or a cooperative society approved by Government Oil Company or Central or State Government or a parallel marketeer and engaged in the business of buying and selling kerosene. It is obvious that a dealer is one who is approved by the Government Oil Company or Central or State Government or a parallel marketeer and engaged in the business of buying and selling kerosene.

JUDGMENT of 1993 was promulgated by the Central Government in exercise of the powers conferred upon them by Section 3 of the Essential Commodities Act, 1955 through notification published in the Government Gazette on 2.9.1993. Through this order, parallel marketing system was introduced. After the promulgation of this order, a private sector company could also import kerosene etc. for distribution and sale. It was submitted by the learned counsel for the petitioner that the declared price as defined in Section 2(d) of 1993 JUDGMENT will apply only to the sale of kerosene etc. through public distribution system. To buttress this submission, he drew my attention to the definition of ''declared price'' as given in Section 2(d) of 1993 JUDGMENT"Declared price" in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed :

(i) by the State Government or District Collector in the case of an area in a State, or

(ii) by the Administrator of the Union Territory in the case of an area in a Union Territory.

It was submitted by the learned counsel for the petitioner that a chief distributor, a distributor or a subdistributor appointed by HDO&G Co. Bombay Ltd. is free to sell kerosene at any price. Similarly, the subdistributors appointed by the Chief distributor are free to sell kerosene at any price as the price at which kerosene can be sold declared by the State Government or District Collector in the case of an area in a State or by the Administrator of Union Territory in the case of an area in a Union Territory will apply only if the sale of kerosene is under the public distribution system. In my opinion, this argument is fallacious. 1993 JUDGMENT has introduced the parallel marketing system sidebyside the public distribution system. 1993 JUDGMENT has not laid down that a parallel marketeer or a distributor or dealer appointed by them can deal in the sale of kerosene at any price they like. For the fixation of price at which kerosene is sold by a dealer appointed by the parallel marketeer, we have to look to the provisions of the Punjab Light Diseal Oil and Kerosene Dealers Licencing JUDGMENT 1978. A dealer or a distributor has to obtain licence also to deal in kerosene. Dealer as defined in the 1978 JUDGMENT means a person engaged in the business of sale or storage for sale of light diesel oil or kerosene or both whether wholesale or retail and whether in conjunction with any other business or not. 1978 JUDGMENT was promulgated by the Punjab Government through notification issued in the Punjab Government Gazette (Extra) dated 22nd March, 1978 in exercise of the powers conferred by section (sic) of the Essential Commodities Act on them. 1993 JUDGMENT was issued by the Central Government in exercise of the powers conferred on them under Section 3 of the Essential Commodities Act.

Kerosene is an essential commodity and to ensure its equal distribution and at a reasonable price, the Government has to come out with some order in the exercise of the powers conferred on them under Section 3 of the Essential Commodities Act.

In my opinion, by the 1993 JUDGMENT the import of kerosene has been rendered easier. Now kerosene can be imported by a private sector company whereas prior to the promulgation of 1993 JUDGMENT parallel marketing system parallel to the public distribution system was not in vogue. Provisions of 1978 order are quite binding and cannot be said goodbye.

Grant of chief distributorship was in the hands of HDO&G Co. Bombay Ltd. Grant of subdistributorship was in the hands of chief distributor. So far as the sale of kerosene is concerned and the price on which kerosene can be sold, that will be governed by the provisions of 1978

In my opinion, there appears to be no reason to scuttle this prosecution at the very threshold. In the exercise of the powers conferred upon this court by the provisions of Section 482 Cr.P.C. read with Article 227 of the Constitution of India, a criminal prosecution can indeed be quashed but in the rarest of rare cases. A criminal prosecution can be quashed at the threshold if continuation of the criminal prosecution will be an abuse of the process of the court. So this Criminal miscellaneous petition fails and is dismissed.