MADHU GUPTA AND OTHERS vs STATE OF Jammu & Kashmir

In this petition under section 561-A Cr.P.C. petitioners seek quashing of order dated 31.12.2010 passed by the learned Sessions Judge, Kathua in a

revision petition, whereby learned Sessions Jude has set aside the order passed by the learned Chief Judicial Magistrate (CJM), Kathua dated

15.09.2010 discharging the accused persons, herein petitioners, of the offence under section 3/7 of the Essential Commodities Act (for short the EC

Act).Â

Heard Mr. D. K. Khajuria, learned counsel for the petitioners and Mr. L. K. Moza, learned AAG, appearing on behalf of the respondent.Â

As per the prosecution case, petitioners were found carrying 800 liters of kerosene filled in four drums by a vehicle (Mahindra Jeep) bearing

registration of No. JK 08-7715 on 11.09.2008. The vehicle was intercepted and inspected by a police patrol. The offence under section 3/7 of the EC

Act was registered as FIR No. 284/2008 at Police Station, Kathua and after investigation charge-sheet was filed, which come up for trial before the

court of the learned CJM, Kathua. Prosecution case is that the kerosene was being transported by the petitioners for sale in contravention of SRO

Notification 79 dated 25.09.1974 issued by the Government of J&K, Ministry of Food, Supplies and Transport Department.Â

The court of CJM discharged the petitioners. The view taken by the learned CJM in the order dated 15.09.2010(supra) was that even though the

kerosene was seized, but there was no case of contravention of aforementioned Notification as the Notification has been issued only to regulate the

sale of kerosene by the dealers appointed for the purpose and there was nothing to prevent the stocking of kerosene by a bona fide consumer. It was

observed by the learned CJM that the Notification does not show that there was any such rule, which prohibits stocking of kerosene oil and that the

Notification only regulates the sale of kerosene by the dealers who are appointed for this purpose and does not declare the possession of kerosene

in any quantity illegal. Learned Sessions Judge in appeal did not agree with the view taken by the learned CJM. Giving his own reasoning, the learned

Sessions Judge held that nobody can keep the kerosene more than 200 liters in his possession without a license and that carrying 800 liters of kerosene

by the petitioners was violative of section 3 of EC Act.Â

The recovery of 800 liters of kerosene from the possession of the petitioners is not disputed in this petition nor that could have been as prosecution

has collected sufficient material to make out a prima facie case in this regard.

Issuance of SRO Notification 79 and its operation as at the time of the alleged incident too have not been disputed. It is rather contended by the

petitioners that the said Notification has been issued only to regulate the sale of kerosene by the dealers who appointed for the purpose. Petitioners

have rather relied upon the same Notification, which has been produced as annexure-C to this petition.Â

Plea taken by the petitioners is that petitioner No. 1 is running a paint industry in the name and style as ‘M/s Diamond Paint and Chemical

Industry’ in the Industrial Extension Area, Kathua and the General Manager, DIC has permitted the petitioner No. 1 to stock 45 thousand liters of

kerosene, which is an ingredient for manufacturing paints.Â

Learned counsel for the petitioners submitted that notwithstanding the regulation of sale of kerosene in terms of SRO Notification 79, no offence

can be said to have been committed by the petitioners as the kerosene allegedly found in possession of the petitioners was within the limit allowed to

petitioner No. 1 as raw material in his industry. Learned counsel, thus, concluded that there was no violation of SRO Notification 79 by the petitioners

and they were rightly discharged by the learned CJM, whereas learned Sessions Judge has fallen in error by according consideration to the matter

beyond the scope of SRO 79 and setting aside the order passed by the learned CJM. Â

It is not denied that kerosene is an item of essential commodity as defined under Section 2(a) of the EC Act. Section 3 of EC Act empowers

Government to control the production, supply and distribution etc. of the Essential Commodities. SRO Notification 79 has been issued by the State

Government under Section 3 of the EC Act in order to maintain the supply of kerosene. It provides inter alia for licensing of stockists, dealers and

retail dealers of kerosene and regulates purchase and supply of kerosene by them. Once a license regime is established for stocking and distribution of

kerosene, it implies that stocking and distribution of the same otherwise than under a duly issued license is prohibited.Â

The view taken by the learned CJM in a nutshell appears that SRO is applicable only to the persons who have been issued a license thereunder and

liability for violation of the SRO can be incurred only by a license holder. The view taken by the CJM, however, is not correct and cannot sustain. It

would not be correct to say that violation of the SRO is relatable to a license holder only. SRO would be violated in a case where stocking and

distribution of kerosene is done by a person not holding duly issued license. Here the petitioners were found in possession of 800 liters of kerosene at a

public place as the vehicle in which it was being transported was intercepted by the police party on the national highway. That petitioner No. 1 is

owner of a paint industry and was permitted to stock 45 thousands liters of kerosene cannot absolve the petitioners of the liability for obvious reason.

Even if it is believed for the purpose of argument, though it is required to be proved by evidence, that petitioner No. 1 was permitted to stock 45

thousand liters of kerosene, such stocking would be permitted within the premises of the industry or at a specified place. Procurement for such

stocking has to be in a manner permissible under the SRO Notification, that is, from licensed dealer. Petitioners could better have produced in the

course of investigation material to show that the kerosene recovered from their possession was duly purchased by petitioner No. 1 from a licensed

dealer. No such material seems to have been produced during investigation and has not been even produced in support of this petition.Â

For aforementioned, I would hold that the view taken by the learned CJM is not correct and the petitioners could not have been discharged on that

score. Learned Sessions Judge, therefore, can be said to have rightly set aside the order of discharge, however, reasons recorded by the learned

Sessions Judge notwithstanding. Hence, this petition has no merit and is dismissed.Â

Record of the trial court along with a copy of this order be sent back.