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Judgment
Natarajan, J.—These two petitions have been filed by two wholesale dealers of kerosene for quashing of the criminal proceedings against them under Clauses 5, 6, 9 and 10 of the Kerosene Control Order read with Section 7(1)(a)(ii) of the Essential Commodities Act. The facts in the two cases are more or less the same except for minor differences. It is therefore, enough if the facts in Crl. M.P. 4494 of 1983 are set out.
A son of the Petitioner, Kapilan, who is a member of the Indian Navy, died in action during the indo Pakistan war in 1971. That factor was taken into consideration and the Petitioner was granted a licence for wholesale distribution of kerosene. The Petitioner being an aged and sickly man, was attending to the business with the aid of a clerk. Originally, the authorities directed the wholesalers to supply their, quota of allotment of kerosene every month to a particular number of private licensed retailers, and the retailers, in turn, had to sell the kerosene to the consumers. Subsequently, there was a change of policy and the authorities directed the wholesalers to distribute their allotment of kerosene to co-operative retail shops and a certain number of co-operative retail shops were linked with each wholesaler. Instructions to the above effect were given in March, 1980. However, it soon came to be found out that the co-operative retail shops were not able to lift the stocks either on account of financial constraints or on account of inadequate storage facilities. Therefore, the distribution system broke down and there was a hue and cry from the public. Thereupon, the Tahsjldar, Attur, asked the wholesalers to supply unlifted stocks of kerosene to licensed private retailers, by means of an order, dated 23rd April, 1980. Some weeks later, the District Supply Officer, reviewed the position and instructed the Tahsildar to issue fresh instructions to the wholesalers directing them to distribute their allotment of kerosene to co-operative retail shops alone, and not to licensed private retailers. Thereupon the Tahsildar issued revised instructions on 23rd June, 1980. In the first week of August, 1980 the Tahsildar inspected the, business premises of the Petitioner and he found that out of a quantity of 79,600 litres available for distribution during July, 1980, the Petitioner had sold only 45,600 litres of kerosene to co-operative retail shops and sold the balance to various others. Consequently, the Tahsildar made a report to the Inspector of Police, Attur, alleging the commission of offences by the Petitioner and his clerk under Sections 420, 468 and 471, I.P.C., read with Section 7 of the Essential Commodities Act. The Inspector of Police registered a case, conducted investigation and felt satisfied that a police report should be filed only for contravention of licence conditions Nos. 5, 6, 8 and 10 of the licence issued under the Tamil Nadu Kerosene Control Order, 1973 read with Section 7(1)(a)(ii) of the Essential Commodities Act against the Petitioner and in addition, for an offence u/s 477-A, I.P.C. against the Petitioner''s clerk. The Collector of Salem gave the sanction for the prosecution and thereupon charge-sheet was laid against the Petitioner.
On receipt of the summons, the Petitioner appeared before the learned Judicial First Class Magistrate, Attur, and raised various objections, but they were overruled and the learned Magistrate framed charges against the Petitioner and his clerk the second Respondent, as follows.-
Charge No. 1 against A1 (Petitioner): That yon (A1) being the proprietor of Kapilan Trading Co, Attur, and A2 being the clerk, on or about the 1st day of July, 1980 sold kerosene oil 79,000 litres other than Co-operative societies (sic) when the Tahsildar has directed to sell 45,609 litres to co-operative societies and thereby committed an offence punishable under Clauses 5,6,9, and 10 of the Kerosene Control Order road with Section 7(1)(a)(ii) of the Essential Commodities Act and within my cognizance.
Charge No. 2 against A2: That you (A2) at or about the same time and place, being clerk of A1, wilfully and with intent to defraud, prepared bills and accounts to show that 45,609 litres of kerosene have been sold to co-operative societies when the same was hot actually supplied which was in the possession of A1 and thereby committed an offence punishable u/s 477-A, of the I.P.C. and within my cognizance...
Twenty witnesses were cited in the charge sheet. The case underwent forty adjournments, but even then not a single witness was examined by the prosecution. In the meanwhile, proceedings wore taken against the Petitioner for cancellation of the licence issued to him and after enquiry, the licence was cancelled. It would appear that the Petitioner has preferred ma appeal against the order cancelling the licence.
The Petitioner has now come forward with this petition for quashing of proceedings on the ground that the charge against him does not lie, that the sanction for prosecution given by the Collector is not valid; that even if there had been a contravention of the Tahsildar''s order, he cannot be prosecuted u/s 7(1)(a)(ii) of the Essential Commodities Act and that, in any event, the long delay that has occurred in the trial of the case entitles him to an order of quashing of the proceedings.
Mr. Karpagavinayakam, learned Counsel for the Petitioners, elaborated these contentions in the course of bis arguments. Taking up the contentions one by one, it is seen that the Petitioner is being prosecuted for contravention of Clauses. 5,6,8 and 10 of the Kerosene Control Order, read with Section 7(1)(a)(ii) of the Essential Commodities Act. In the first place, the Kerosene Control Order is no longer in force. It has been replaced by the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973. Therefore, the; reference to Kerosene Control Order in the charge is itself wrong. Overtoiling this defect, if we see the order of sanction passed by the Collector and the charge, we find another discrepancy. In the sanction order it is stated that the Petitioner and his shirk will be prosecuted for violation of licence condition Nos. 5,6,8, and 10 of the license issued to the Petitioner read with Section 7(1)(a)(ii) of the Essential Commodities Act (as amended). Therefore, while the order of sanction is for prosecution for violation of the licence conditions, the charge refers to violation of Clauses 5, 6, 9 and 10 of the Order which read as follows-
Clause 5: Retail trade in kerosene.
Clause 6: Bower to issue licence or registration certificate or renew licence.
Clause 9: Power to fix the quantity of (sic) for
sale.
Clause 10; Power to exempt.
It is therefore obvious, that the charge, as now framed does not make out the commission of any offence the Petitioner. In so far as licence conditions 5,6,8 and 10 are concerned, conditions refers to the duty of a wholesaler to maintain a register of daily account showing correctly all the transactions of kerosene in his possession. Condition 6 lays down that the wholesaler should submit to the Collector a true return of the stocks, receipts, deliveries and balance during every month on or before the 5th of the succeeding month. Condition 8 refers to duty of a wholesaler to issue to every customer a correct receipt giving the name, licence number, date of transaction, quantity of kerosene sold, etc. Condition 10 reads as follows-
The wholesaler shall comply with any directions that may be given to him by the Commissioner or the Collector in regard to the purpose, sale or storage for sate or distribution of kerosene.
The accusation against the Petitioner is not that he did not maintain a register or daily accounts or that he did not send his monthly returns to the Collector or that he did not issue receipts to the customers,. On the other hand, the gravamen of the case is that in contravention of the directions of the Tahsildar, the Petitioner did not sell the entire quantity of kerosene to co-operative retail shops. Assuming, for argument''s sake, that the Petitioner did not sell the entire quantity of kerosene to co-operative retail shops, can it be said in this case, that the Petitioner has contravened condition No. 10 of the license? Condition No. 10 refers to the compliance, by a wholesaler, with any directions that may be given to him by the Commissioner or the Collector. The word ''Collector'' has not been defined in the Order, but the word ''Commissioner'' has been defined as meaning the Commissioner of Civil Supplies, Madras. The admitted'' position in this case is that the instructions issued on 23rd June, 1980 had not been issued by the Collector or even by the District Supply Officer, but only by the Tahsildar purporting to act under the orders of the District Supply Officer. Neither the Order nor the licence refers to the duty of a wholesaler being bound to act in accordance with the directions of officers or several cadres in the hierarchy of officials in charge of the Civil Supplies Department. On the other handy what Section 3 of the. Order says is as fallows-
Section 3: Licensing of wholesalers: (1) No person shall start afresh or carry on business as a wholesaler except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority-
(2) It shall be open to the licensing authority to specify, from time to time, the place or area within which only the dealer can purchase, store, move or sell kerosene and the quantity upto which he may purchase, store, move, distribute or sell at a time or during a specified period.
(3) In laying down the conditions referred to in Sub-clause (2), the licensing authority shaft have regard to the following matters, namely-
(a) the area in which the dealer has operated in the past;
(b) the quantities in which he has been dealing in such areas in the past;
(c) the availability of stocks in the area and the requirements of the public;
(d) any pattern of regulation of distribution that maybe enforced, from time to time, and
(e) the number of dealers operating in the area;
Provided that the licensing authority may vary the conditions, from time to time with reference to the above factors and also the arrangements that may be made for supply in the area of Government stocks;
(4) Every dealer shall declare to the licensing authority the quantity of kerosene in his possession or control every month in form V." (relevant portions only), It is not in dispute that the Tahsildar is not the licensing authority. I have already extracted condition No. 10 of the licence, which refers only to the duty of the wholesaler to comply with the directions that may be given to him by the Commissioner or the Collector. In such circumstances, even if there had been any contravention of the directions given by the Tahsildar, that would not constitute contravention of the licence or of 5.3 of the Order.
It has been held in Thanmal Surana and Others Vs. Union of India (UOI) and Others, , that a Tahsildar has no jurisdiction to make any orders under Sub-Section 2(f) of Section 3 of the Essential Commodities Act, since the Collector alone is the competent authority to pass such orders. In Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Prohlad Agarwalla, , a question arose for consideration whether a person can be convicted u/s 7 of the Essential Commodities Act, 1955, when there was only a contravention of a notification made by a Controller acting under the Act and not a contravention of any order made u/s 3 of the Act. The Bench of the Calcutta High Court answered the question in the negative and held as follows-
An order u/s 3 can be made by the Central Government. J The Central Government made such an Order, i.e., the Iron and Steel (Control) Order, 1956. Paragraph 1A. (2) of this order, no doubt, authorised the Controller to make certain directions, but those directions do not relate back to the Order or form part of the Order u/s 3 because that would involve double delegation of legislative power not authorised by Parliament.
The position of law, therefore, is that even if there had been a contravention of the directions issued by the Tahsildar, the Petitioner cannot be prosecuted for an offence u/s 7(1)(a)(ii) of the Essential Commodities Act, for, the contravention will not amount to one of an order u/s 3 of the Act.
Thus, it is seen that, firstly, the charge is not a sustainable one because it referred to the Kerosene Control Order which is no longer in force. The second infirmity is that the order of sanction for prosecution refers to violation of certain conditions of the licence while the charge refers to violation of some clauses of the Order. The Public Prosecutor says that the mistakes can be rectified and a fresh charge can be framed under the Tamil Nadu Kerosene (Regulation of Trade) Order. Even if this contention is accepted, there are the other factors, which are unanswerable. There has been no contravention, by the Petitioner, of an order made u/s 3 of the Essential Commodities Act. On the other hand, the contravention complained of relates to a notification made by the Commissioner or the Collector, but has been made by a Tahsildar who has no power under the Act or the Order to issue notifications. Such being the case, there can be no prosecution u/s 7(1)(a)(ii) of the Essential Commodities Act. For non-observance of the conditions of the licence, the authorities have already taken action against the Petitioner and cancelled the licence and the matter is said to be now pending in appeal before the appropriate authority.
In the other petition, viz., Crl. M.P. 4496 of 1983, the first accused is the licencee and the second accused is his son, who was assisting him in the actual business of kerosene distribution., It is enough if the charges framed against the accused are extracted, because they will reveal the identical nature of the two cases, the charges are-
Charge No. 1: That you, Al, A2 on or about the July, 1980 at Attur, A1 being the owner and A2 being the clerk, received a supply of 80000 litres of kerosene for supply, that as per conditions (sic) of the order of the Tahsildar you were ordered to supply 31600 litres of kerosene oil to Co-operative societies and thereby committed an offence punishable under Clauses 5, 6, 8, and 10 of the Tamil Nadu Kerosene Control Order and within my cognizance.
Secondly, that you A2, at or about the same time and place, being clerk of A1, wilfully and with Intent to defraud, prepared a certain book, to wit bills for sale of kerosene oil as if they were sold to co-operative societies where the same was not actually sold which, was in the possession of your employer A1, and thereby committed an offence punishable u/s 477-A of the I.P.C., and within my cognisance-
Therefore, all the reasons which necessitate the quashing of the earlier case will apply with equal force to this case also.
For the aforesaid reasons, the Petitioner for quashing of the proceedings have to be allowed. Consequently, these petitions will stand allowed, and the proceedings on the file of the Judicial First Class Magistrate, Attur in C.C. 34 of 1983 against the Petitioner in Crl. M.P. 4494 of 1983 and in C.C. 36 of 1983 against the Petitioner in Crl. M.P. 4496 of 1983 will stand quashed.