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Judgment
Swamidurai, J.—The Petitioner who is a Retail seller on Kerosene has filed this Writ Petition for a Writ of Certiorarified Mandamus for
quashing the proceedings of the first Respondent in Ref. No. K. 15/129988/878 dated 26.11.88 and for a direction to the Respondent to return all
the registers of the Petitioner retained in their custody.
The Petitioner is a retail licensee to sell kerosene under License No. 47/74 at Thirukkoilur. He has been doing this business properly. The Civil
Supplies Officials and the Special Deputy Tahsildar in the nearby check-post at T. Athipakkam near Thirukkoilur used to send unofficial slips for
the supply of Kerosene to them and he used to supply kerosene without any delay. The photo copies of such supply orders received by the
Petitioner from the officials are filed along with the typed set to the Writ Petition. The Petitioner received summons from the Special Court under
the Essential Commodities Act, Thanjavur directing him to appear before in S.T.C. (EC) No. 7 of 1989 for offences charged under C1.7(4) of the
Tamil Nadu Kerosene (Regulation of Trade) Order 1973, hereinafter referred to as ''Kerosene Order'', C1.6(2) and 6(3) of the Tamil Nadu
Scheduled Commodities (Regulation of Distribution by card system) Order 1982, hereinafter referred to as ''Scheduled Commodities Order, and
u/s 7(1)(a)(ii). of the Essential Commodities Act, hereinafter referred to as ''the Act''. Copies of documents including the proceedings of the first
Respondent dated 26.11.1988 and the First Information Report dated 22.8.88 of the second Respondent were furnished to the Petitioner. The
Collector of South Arcot District, the first Respondent herein has granted sanction for the prosecution of the Petitioner for violation of the above
said provisions of the order, rules, and the Act by his impugned order dated 26.11.1988. The Petitioner seeks to quash the said order on the
following grounds:
(i) The Petitioner was not given reasonable opportunity of defending his case after the alleged inspection of his shop before 22.8.87 and prior to
26.11.88 being the date of granting sanction for prosecution. This is mandatory as per the provisions of Rule 18-A of the Kerosene Order and
Section 6-B of the Act.
(ii) The copy of the alleged inspection report dated 22.8.87 of the Subordinates of the 1st Respondent, has not been supplied to him.
(iii) The sanction order is violative of Articles 14 and 21 of the Constitution of India and against the principles of natural justice.
(iv) The first Respondent has not applied his mind before granting the sanction for prosecution. The charge is that there was a shortage of 10 litters
of kerosene stock in the shop of the Petitioner during the alleged inspection and prior to 22.8.87. The other charges are negligible and do not
warrant any prosecution under the provisions of the Kerosene Order or the Scheduled Commodities Order or the Act whatsoever.
(v) Only when there is a surplus of stock above the entries of sales in the registers, it is an offence punishable under the Act. The Petitioner is not
conversant with the keeping of the accounts as expected by the Respondents and their subordinates. The alleged contraventions by the Petitioner
do not attract the provisions of Order 18A of the kerosene Order.
(vi) The Petitioner filed Crl.M.P. No. 7487 of 1989 for quashing the proceedings u/s 482 Code of Criminal Procedure in STC (EC) No. 7/89 on
the file of Special Court at Thanjavur on the ground that the ""inspection was done by a subordinate of the 1st Respondent without jurisdiction and
the procedure adopted by the 2nd Respondent is not according to the procedure contemplated u/s 10-A of the Act and the said petition was
dismissed on 24.7.89. The grounds raised in this Writ Petition are not the same raised in Crl.M.P. No. 7487/89. The Petitioner has filed this Writ
Petition on different grounds and therefore, it is not abated under the provisions of res judicata.
The first Respondent filed a counter affidavit contending as follows: The Revenue Divisional Officer, Thirukoilur has instructed the Divisional
Head Assistant (Deputy Tahsildar) to inspect the business premises of the Petitioner and on inspection by him he found the following irregularities:
(i) When the actual stock of kerosene was physically checked there was a shortage of 10 litters of kerosene in stock.
(ii) In the sale bills, instead of entering the family card numbers, the serial number given in the ''A'' Register had been noted.
(iii) There was no proper accounts for the issue of 75 litters of kerosene during the month of July, 1987.
(iv) When the family cards were compared with the other registers maintained by the said dealer, it was noticed that kerosene was not supplied to
the following family cards For the month of July, 1987, but in the bill book and in the Drawal Registers, entries were made as if Kerosene were
supplied to these family cards Nos. 912259, 912249, 912304. 912283, 912375, 912376 and 912374.
The second Respondent, Inspector of Police, Civil Supplies has registered a case in Cuddalore Civil Supplies CTD Cr. No. 76/88 and
investigated. The investigation disclosed that the kerosene Retail Registration Certificate holder had contravened the provisions contained in
Cl.7(4) of the Kerosene Order and the condition 4 of the Retail Registration Certificate. So, prosecution was sanctioned by the first Respondent to
prosecute the Petitioner as per Cl.24 of the Kerosene Order in the proceedings K15/129988/87 dated 26.11.1988 and a case in STC No. 7/89
was filed before the Special Court under the Essential Commodies Act, Thanjavur. The first Respondent admitted in his counter that the civil
supplies officials at the Checkpost had issued authenticated slips/requisitions bearing the seal of the checkpost and the signature of the officials
requesting kerosene on credit basis for the use of check-post. But in the slip, there was no entry to show that he had actually issued kerosene and
they do not contain the acknowledgment of the staff for having received kerosene. However, this transaction has no bearing with the shortage of
10 litters and the issue of 75 litters, because the inspection was conducted on 23.8.1987 and the shortage of 10 litters and issue of 75 litters
without any proper accounts relate to July, 1987 while the requisition slip related to the period 1981 and 1984. Therefore, the contention of the
Petitioner is an after thought to escape from the punishment. The prosecution against the Petitioner was sanctioned not only for the shortages but
also for the other allegations as mentioned above. Certain allegations had been received from the public that the Petitioner was not doing kerosene
retail business properly and therefore, an enquiry and inspection was arranged. The business premises of the Petitioner was inspected and the
consumers were enquired. On enquiry, it was revealed that the Petitioner had contravened the Cl.7(4) of the Kerosene Order. Cl.25 of the
Kerosene Order clearly empowers the first Respondent to sanction prosecution of a dealer who contravenes, attempts to contravene any of the
provisions of the said Order or of terms and conditions of the retail registration Certificate issued to him under that Order. The sanction order was
issued after a careful examination of the enquiry records and the records of investigation made by the second Respondent. It is the duty of the
Petitioner to comply with the provisions contamed in the Kerosene Order and the other conditions laid down in the Retail Registration Certificate.
The Petitioner himself had agreed that there was shortage of 10 litters of kerosene when compared with the stock registered at the time of
inspection. The other contentions of the Petitioner that the other charges were negligible and that he was not conversent with the keeping of
accounts etc., are not tenable.
The Petitioner is alleged to have contravened the provisions of Cl:7(4) of the Kerosene Order which reads as follows:
Every authorised wholeseller or retailer shall keep and maintain a true and correct account of every and other records as may be prescribed by the
authorised officer from time to time.
The Petitioner is also alleged to have contravened licence condition 4 of the Retail Registration Certificate. Violation of Cl.7(4) of the Kerosene
Order and the Licence Condition No. 4 of the Retailer Registration Certificate is punishable u/s 7(1)(a)(ii) of the Act. Learned Counsel for the
Petitioner contended that a copy of the alleged inspection report dated 22.8.87 of the subordinates of the 1st Respondent, has not been furnished
to the Petitioner and that the first Respondent has not applied his mind before issuing the sanction order. According to the Petitioner, Civil Supplies
Officials at the Checkpost had issued authenticated slips/requisitions bearing the seal of the checkpost and the signatures of the officials requesting
kerosene on credit basis for the use of check-post. This contention is rebutted by the first Respondent in his counter by stating that in the slip, there
is no entry to show that the Petitioner had actually issued kerosene and that they did not contain the acknowledgment of the staff for having
received the kerosene and however, this transaction has no bearing with the shortage of 10 litters and the issue of 75 litters because the inspection
was conducted on 23.8.1987 and the shortage of 10 litters and the issue of 75 litters without any proper accounts relate to July, 1987 while the
requisition slip related to the period 1981 and 1984. But one thing is clear from the enclosures filed by the Petitioner to show that the officials of
the Civil Supplies Department had issued slips or requisitions for supply of kerosene for the use of the check-post. To evidence the same, the
Petitioner has also filed photocopies of the slips ranging from 25.2.81 to 5.5.1987. Inspection was done according to the first Respondent on
23.8.87. But the Petitioner was not at all enquired by the first Respondent before he issued the sanction order. The first Respondent does not
appear to have enquired his Subordinate Officials with regard to the truth of the statement of the Petitioner in the writ petition that he had supplied
kerosene to the officials of the Civil Supplies Department before the issue of sanction order. The sanction Order dated 26.11.88 reads as follows:
On 22.8.87, as per the directions of the Revenue Divisional Officer, Thirukoilur, Thiru M. Savarimuthu, Divisional Head Assistant, Revenue
Divisional Officers'' Office, Thirukoilur had inspected the Kerosene Retail Shop of Thiru Balan, Retail Registration Certificate holder, Hospital
Road, Thirukoilur Town and found the following irregularities:
1) When the actual stock of Kerosene was physically checked, there was a shortage of 10 litters of Kerosene in stock.
2) In the sale bills, instead of entering the family card numbers, the serial numbers given in the ''A'' Register have been noted.
3) There was no proper accounts for the issue of 75 litters of kerosene during the month of July, 1987.
4) When the family cards were compared with the other registers maintained by the said dealer, it was noticed that Kerosene was not supplied to
the following family cards for the month of July, 1987, but in the bill book and in the Drawal Registers, entries were made as if Kerosene were
supplied to these family cards 912259, 912249, 912304, 912283, 912375, 912376 and 912374.
The Inspector of Police, Civil Supplies C.I.D., Cuddalore has registered a case in Cr. No. 76/88 and investigted
After a careful scrutiny of the report of the Divisional Head Assistant, Revenue Divisional Officer''s Office, Thirukoilur and the Inspector of Police,
Civil Supplies, C.I.D., Cuddalore, I am satisfied that the retailer has clearly contravened the provisions contained in C1.7(4) of the Tamil Nadu
Kerosene Regulation of Trade Order 1973 and licence condition 4 of the R.R.C. punishable u/s 7(1)(a)(ii) of the Essential Commidities Act, 1955.
Accordingly, sanction is hereby accorded to prosecute Thiru Balan, Retail Registration Certificate to Holder of Thirukoilur Town.
In the sanction order, the first Respondent has stated that after a careful scrutiny of the report of the Divisional Head Assistant, Revenue
Divisional Officer''s Office, Thirukoilur and the Inspector of Police Civil Supplies C.I.D., Cuddalore he was satisfied that the retailer had clearly
contravened the provisions contained in Cl.7(4) of the Kerosene Order and Licence condition No. 4 of the Retailer Registration Certificate
punishable u/s 7(1)(a)(ii) of the Act. This portion of the sanction order does not disclose any grounds for such satisfaction on the part of the first
Respondent, the first Respondent has not discussed anything at all in the impugned sanction order about the subjective satisfaction, excepting the
word ''satisfied''. The sanction order does not disclose further anything about the report of the Inspector of Police. Learned Counsel for the
Petitioner also contended that he had not been supplied with the copy of the inspection report so that he could have afforded his explanation to the
first Respondent before he issued the sanction order.
Learned Counsel for the Petitioner relied upon the decision reported in R.S. Nayak Vs. A.R. Antulay, That was a case arising out of the
provisions of Prevention of Corruption Act. Section 6(1) of the Prevention of Corruption Act, deals with prosecution for an offence of corruption
by a public servant. The Supreme Court observed in the above decision as follows:
The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant. Existence thus of a valid
sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. A trial
without a sanction renders the proceedings ab inilio void. But the terminus a quo for a valid sanction is the time when the Court is called upon to
take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time
the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction
would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a
public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime,
this consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the Court is called
upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted.
In the decision reported in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, the Supreme Court held that the sanctioning authority has to
apply his mind and find out valid grounds for sanction. It is further held that the grant of sanction is not an idle formality or an acrimonious exercise
but a solemn and sacrosanct act which affords protection to Government Servants against frivolous prosecutions and must therefore be strictly
complied with before any prosecution can be launched against the public servant concerned. In the instant case, the sanctioning authority, namely,
the first Respondent has not given any reasons for the accord of sanction excepting the statement that after a careful scrutiny of the report of the
Divisional Head Assistant, Revenue Divisional Officer''s Office, Thirukoilur and the Inspector of Police, Civil Supplies C.I.D. Cuddalore he was
satisfied that the retailer has clearly contravened the provisions contained in C1.7(4) of the Kerosene Order and the Licence condition No. 4 of the
R.R.C. punishable u/s 7(1)(a)(ii) of the Act. In view of the above decision, the impugned order does not satisfy the ratio given by the Supreme
Court in the above quoted judgment. Apart from that, in the counter-affidavit filed by the first Respondent, it is stated that the ""business premises
was inspected and the consumers were enquired. On enquiry it was revealed that the Petitioner had contravened the C1.7(4) of the Tamil Nadu
Kerosene (Regulation of Trade) Order 1973."" Further it is mentioned in the counter of the first Respondent that prosecution was sanctioned to
prosecute the Petitioner after careful examination of the enquiry records and records of investigation made by the 2nd Respondent. The first
Respondent has not stated the particulars of the enquiry records and the records of investigation in the order of sanction. Further, the Petitioner
was not at all furnished with copy of enquiry records so that he could have given his explanation. On receipt of such explanation, the first
Respondent might or might not have been satisfied with the explanation and even might not have sanctioned for prosecution. The object of granting
sanction has been mentioned in the above quoted judgment of the Supreme Court, namely, in order to avoid harassment against a government
servant by a frivolous prosecution. While that being the object for the grant of sanction, the corollary would be that the sanctioning authority is
expected to furnish a copy of the enquiry records, in order to facilitate the accused/Petitioner to offer his explanation which might stop further grant
of sanction by the sanctioning authority leading to the prosecution and harassment untimately. This will be in accordance with the principles of
natural justice also. It was contended by the learned Government Advocate that the Petitioner has got opportunity of attacking the sanction order
at the time of trial and that it is premature for him to come before this Court by way of writ petition. The sanction order is the very basis for the
prosecution and the reasons for according sanction as already stated, have to be given. It cannot be contended that a sanction order is an
executive act and that no opportunity should be given to the Petitioner at that stage. It is an act affecting the liberty of an individual, and if the
sanction order is held illegal, ultimately by a verdict of court, the trial and tribulation of an individual and unnecessary harassment could not be
compensated.
Further, this impugned sanction order issued by the first Respondent, does not satisfy the requirements, namely, he has not applied his mind when
he accorded sanction for prosecution and the sanction order does not satisfy the test as per the judgment of the Supreme Court in Mohd. Iqbal
Ahmed Vs. State of Andhra Pradesh,
7A. In the circumstances stated above, the impugned sanction order issued by the first Respondent is illegal and arbitrary and is opposed to the
principles of natural justice. In the circumstances the impugned order is quashed and the writ petition is allowed. But there will be no order as to
costs.