IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Crl.MC.No. 1518 of 2007() ------------------------------------- C.C.855/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA. CRIME NO.437/2006 OF MAVELIKKARA POLICE STATION. ............... PETITIONER/1ST ACCUSED ---------------------------------------- N.P. KUTTIKRISHNAN NAIR, PROPRIETOR, CORAL AGENCIES, L.P.G. DISTRIBUTOR, MAVELIKKARA. BY MR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENT(S): -------------------------- 1. V. ANIYAN, TALUK SUPPLY OFFICER, MAVELIKKARA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1518 OF 2007 ------------------------------------------ Dated 8th March 2010 O R D E R Petitioner is the first accused in C.C.855/2006 on the file of Judicial First Class Magistrate, Mavelikkara taken cognizance for the offences under Annexure-VI final report. Though as per Annexure-VI final report, it is alleged that accused committed offences under Sections 3(1), 5 and 7 of Essential Commodities Act on the allegation that there is violation of the provisions of clause 3(a), 3(b) and 4(c), 6 and 7(c) of LPG (Regulation of Supply and Distribution) Order 2000, Annexure-VI final report shows that Magistrate had taken cognizance of only the offences under Section 353 read Crmc 1518/07 2 with Section 34 of Indian Penal Code. Prosecution case as seen from the final report is that in violation of the provisions of LPG (Regulation of Supply and Distribution) Order 2000 and in violation of the provisions of Explosive Substances Act petitioner, the first accused, being the authorised distributor of Indian Oil Corporation, by name Coral Gas Agency, Mavelikara, stored LPG cylinders on the side of Mavelikara Mankuzhi road in open space on 10/10/2006 as found by the Taluk Supply Officer. He seized the ten cylinders found therein preparing a mahazar and entrusted those cylinders to Sivasakthi Agencies, Mavelikara for storing on obtaining receipt. It is further alleged that at about 12.10 p.m accused 2 and 3, employees of the petitioner reached there and caused obstruction to the discharge of official duty of the Taluk Supply Officer and Crmc 1518/07 3 thereby committed the offences. Petition is filed under Section 482 of Code of Criminal Procedure contending that even if, accused 2 and 3 have caused any obstruction in discharge of the official duty of the Taluk Supply Officer, petitioner cannot be prosecuted as he has nothing to do with the said obstruction and therefore, the cognizance taken as against the petitioner for the offences under Section 353 read with Section 34 of Indian Penal Code is to be quashed. It is also contended that even if the offences alleged under Essential Commodities Act is true, there is no violation of any of the provisions of LPG (Regulation and Supply and Distribution) Order and Taluk Supply Officer furnished Annexure-II complaint, before Sub Inspector of Police, Mavelikkara, based on which the case was registered, without any basis and for Crmc 1518/07 4 extraneous reasons. It is the case of the petitioner that in view of circular issued by Indian Oil Corporation Limited cash-n-carry facility which was originally available was stopped by the Indian Oil Corporation Limited and as a distributor, it is the duty of the petitioner to supply LPG cylinders to the house of each consumer and it is not practical or possible to take gas cylinders to the houses of all the consumers as there may not be road access available and therefore, the practice is to keep cylinders at one point and carry each of the cylinders to the consumers' house, either by bi-cycle or over head and the Taluk Supply Officer seized gas cylinders when the gas cylinders were kept on the side of the road, to be supplied to the consumers and hence there is no violation. It is therefore argued that even if it is taken that learned Crmc 1518/07 5 Magistrate has taken cognizance for the offences under Essential Commodities Act also, none of the offence is attracted and hence continuation of the proceedings is only an abuse of process of the court. Learned counsel also pointed out that though there is a further allegation that there is violation of the provisions of Explosive Substances Act, that Act is not at all attracted and on that ground also petitioner cannot be prosecuted. 2. Learned Public Prosecutor pointed out that as is clear from the statement of the Taluk Supply Officer filed in the case, complaints were received that LPG cylinders are being regularly stored unauthorisedly, so as to sell them to the consumers illegally in black market and when the gas cylinders were found stored on the side of the road for sale, in violation of the provisions, they were Crmc 1518/07 6 seized and the gas cylinders were entrusted, on obtaining receipt, to another gas agency and the case has been registered based on the complaint filed by the Taluk Supply Officer and there is no reason to quash the proceedings. 3. As stated earlier, Annexure-VI only shows that cognizance has been taken only for the offences under Section 353 read with Section 34 of Indian Penal Code. Even if, allegations in Annexure-VI final report or Annexure-II complaint filed by the Taluk Supply Officer is accepted as correct, no offence under Section 353 of Indian Penal Code is attracted as against the petitioner even with the aid of Section 34 of Indian Penal Code. That allegation is raised only against accused 2 and 3 on the allegation that after Taluk Supply Officer had taken the seized gas cylinders to another gas agency and entrusted Crmc 1518/07 7 them to the said distributor on getting receipts, accused 2 and 3 came there and caused obstruction to the delivery, contending that they will not permit the gas cylinders to be entrusted to Sivasakthi Agencies. Therefore, as rightly pointed out by the learned counsel appearing for the petitioner, even if, those allegations in Annexure-II complaint or Annexure-VI final report are accepted, it would only attract the offence against accused 2 and 3 and not against the petitioner. Therefore, cognizance taken for the offence under Section 353 read with Section 34 of Indian Penal Code, as against the petitioner can only be quashed. 4. Though Annexure-VI report does not show that cognizance was taken for the offence under Section 3(1), 5 and 7 of Essential Commodities Act, facts would reveal that Crmc 1518/07 8 learned Magistrate could not have taken cognizance, under the provisions of Essential Commodities Act. As is clear from the final report, commission of offences under Sections 3 (1), 5 and 7 of Essential Commodities Act is alleged on the allegation that there is violation of the provisions of clause 3(a), 3 (b) and 4(c) and 6 and 7(c) of LPG (Regulation of Supply and Distribution) Order 2000. Question is even if the allegations in Annexure-II final report is accepted, does any of the said offences is attracted. 5. Allegation in Annexure-II complaint is that on getting information that LPG cylinders are stored for the purpose of illegal sale on the side of the road. Taluk Supply Officer reached the spot on 10/10/2006 and found ten LPG cylinders kept on the side of the road and presuming that it is for sale in Crmc 1518/07 9 violation of the provisions of the LPG (Regulation of Supply and Distribution) Order 2000, it is contended that offences are attracted. 6. Clause 3(a) provides that a person having a connection of liquefied Petroleum gas under the public distribution system, shall not possess more than one connection of liquefied petroleum gas granted under the public distribution system. It is not applicable to a distributor like the petitioner. So also clause 3(b) provides that person having connection of liquefied petroleum gas, under the public distribution system shall not possess or use liquefied petroleum gas filled in cylinder or in bulk, unless he has received the supply from a Government Oil Company or a distributor authorised by such company. It is also not applicable to the Crmc 1518/07 10 distributor like the petitioner. Clause (4) deals with restriction on storage and transport of liquefied petroleum gas. Under clause 4(c) no person shall store or use or cause to be stored or used a cylinder filled with the liquefied petroleum gas except in a cool, dry, well-ventilated and accessible place under cover, away from boilers, open flames, steam pipes or any potential source of heat. Clause (b) deals with transport or storage of cylinder filled with liquefied petroleum gas except in an upright position. Clause (4) does not impose any prohibition or restriction in transporting the gas cylinders, to the consumers. If there is no direct road access to the house of the consumer, there is nothing wrong in keeping gas cylinders at one place on the side of the road temporarily for some time so as to carry each cylinder to each of the Crmc 1518/07 11 consumer either by bi-cycle or taking manually. So long as there is no material to show that ten gas cylinders seized by the Taluk Supply Officer were meant for sale, in violation of the provisions of LPG (Regulation of Supply and Distribution) Order 2000, based only on the fact that Taluk Supply Officer found the ten gas cylinders kept on the side of the road, petitioner cannot be prosecuted under Section 4(a) or (c). Similarly, clause 6 only prohibits carrying on unauthorised business of selling LPG and clause 7 possession, supply and sale of liquefied petroleum gas equipments. These provisions are also not attracted to the present case. Therefore, Continuation of the prosecution, for the offence under Essential Commodities Act is not warranted. As there is no likelihood of a successful prosecution, it is not in the Crmc 1518/07 12 interest of justice to continue the prosecution. Learned Public Prosecutor also fairly admitted that offence under Explosive Substances Act is not attracted. In such circumstances, petition is allowed. Cognizance taken in C.C.855/2006 on the file of Judicial First Class Magistrate, Mavelikkara as against petitioner, the first accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.