IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 28850 of 2010(Q) ---------------------------------------- PETITIONER(S): ------------------------ N.P.KUTTYKRISHNAN NAIR,AGED 55 YEARS, S/O.OF LATE K.NARAYANA PILLAI, PROPRIETOR, CORAL AGENCIES,PUTHIYACAVU,MAVELIKKARA-690 101, ALAPPUZHA DISTRICT. BY ADVS. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA-PIN- 688 001. 2. THE TALUK SUPPLY OFFICER, MAVELIKKARA-PIN- 690 101. 3. THE DEPUTY SUPERINTENDENT OF POLICE, CHENGANNUR-PIN- 689 121. 4. THE SUB INSPECTOR OF POLICE, MAVELIKKARA POLICE STATION,MAVELIKKARA-690 101. 5. K.RAJAN,USHA BHAVAN,THRIPPERUMTHURA, CHENNITHALA, PADINJAREVAZHY,MAVELIKKARA-690 105. R1 TO R4 BY PUBLIC PROSECUTOR SRI.MANU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2011, ALONG WITH CRL.M.C.NO.1284/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 --------------------------------------- Dated this 31st day of May, 2011 JUDGMENT This writ petition and criminal miscellaneous case relate to the alleged delayed delivery or failure to sell, as the case may be re-filled L.P.G cylinders by the petitioner who is the distributor of L.P.G cylinders. One of his customers complained to the District Collector that in spite of his booking for re-filled cylinder on 09.03.2007, it was not supplied to him, even as on the date of complaint (to the District Collector). The District Collector issued Annexure-A2, charge sheet dated 21.07.2007 to the petitioner calling for explanation from him. Petitioner is said to have submitted Annexure-A3, explanation on 06.08.2007 stating the reason (for delayed supply of re-filled gas cylinder). On 26.05.2010 the District collector by Annexure-A5 directed the Dy.S.P, Chengannur to register a case against petitioner observing that no explanation was given by the petitioner to Annexure-A2, charge sheet. The Dy.S.P, Chengannur directed the S.H.O of the Police Station concerned to register a case and accordingly Annexure-A4, FIR was registered. In the meantime petitioner challenged Annexure-A5, order dated 26.05.2010 of W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 2 :- the District Collector in W.P(C).No.28850 of 2010 on various grounds including that there is gross violation of the principles of natural justice. The police in the meantime investigated the case and submitted Annexure-A1, final report before learned Judicial First Class Magistrate-I, Mavelikkara alleging that petitioner committed offences punishable under Sec.3, 5 and 7(ii) of the Essential Commodities Act (for short, "the Act”) and Clause 9(a) and (e) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order (for short, "the Order”). In Crl.M.C.No.1284 of 2011 petitioner/accused challenges the final report and cognizance taken by the learned Magistrate on that report. 2. Learned counsel for petitioner contends that in view of enactment of the Petroleum and Natural Gas Regulatory Board Act, 2006 which provides for constitution of a regulatory Board to regulate, store, transport, distribute, market and sell petroleum products including L.P.G cylinders, provisions to that effect in the Act stand impliedly repealed to the extent it concerned the L.P.G cylinders and hence prosecution based on the repealed provisions of the Act is not sustainable. It is also argued by learned counsel that even if entire allegations in Annexure-A1, final report are acceptable, that does not amount to any offence as attributed to the petitioner in Annexure-A1, final report. Learned Public Prosecutor would in response contend that the contention that W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 3 :- Annexure-A5, order of the District Collector violates the principles of natural justice is not correct, there is nothing on record to show that any reply was given to Annexure-A2, charge sheet dated 21.07.2007 and in the circumstances a further personal hearing of petitioner was not essential. It is also contended that on the allegations made Annexure-A1, final report would stand and cognizance taken is directly valid. 3. So far as the contention that Annexure-A5, order dated 26.05.2010 of the District Collector directing the Dy.S.P, Chengannur to register a case violates the principles of natural justice is concerned, I must bear in mind that what is required is not a technical compliance with the said principle but an opportunity of being heard to the person affected by the order. So far as Annexure-A5, order dated 26.05.2010 is concerned, it is not as if any right of petitioner is taken away by the said order and instead, it only directed the Dy.S.P, Chengannur to register a case. Learned counsel did not point out any provision which require that otherwise than by the direction of the District Collector, a case cannot be registered for the offences alleged or that before the District Collector issued any such direction, it was necessary that petitioner should have been given a personal hearing. Indisputably, Annexure-A2, charge sheet dated 21.07.2007 was given to the petitioner calling upon him to give W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 4 :- his explanation as to the further action to be taken. Annexure- A3, explanation dated 06.08.2007 is said to be given to the District Collector in response to Annexure-A2, charge sheet but there is nothing on record show that any such explanation was given to the District Collector. On the other hand Annexure-A5, order of District Collector specifically states that in spite of service of Annexure-A2, charge sheet, petitioner has not given any explanation. If petitioner was given an opportunity to give his representation if any, then, absence of personal hearing cannot be said to be a violation of principles of natural justice. More so, in this case the District Collector has stated in Annexure-A5 that petitioner has not given any explanation to Annexure-A2, charge sheet. Hence the contention that Annexure- A5, order dated 26.05.2010 of the District Collector cannot stand, cannot be accepted. 4. Now coming to Annexure-A1, final report submitted by the Investigating Officer, one contention is that in view of enactment of the Petroleum and Natural Gas Regulatory Board Act, 2006, provisions of the Act to the extent it concerned storage, marketing and distribution of the petroleum products including L.P.G cylinders stand repealed and hence no prosecution could have been initiated under provisions of the Act. That argument has to be rejected at the threshold in view of the W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 5 :- decision of the High Court in Johny Thomas Vs. Union of India (2009(2) KLT 447) where it is held that there is no direct conflict between the Order and the Central Orders. Learned counsel would submit that decision of the learned Single Judge is under challenge in writ appeal. As of now, in the light of the decision of the learned Single Judge, above said argument of learned counsel cannot stand and is only to be rejected. 5. It is then argued by learned counsel that even if the allegation in Annexure-A1, final report stand uncontroverted, no offence under Sec.7(ii) of the Act is made out. There is only a delayed supply of re-filled gas cylinders which does not attract either clause 9(a) or 9(e) of the Order. It is also submitted by learned counsel that there is no provision in the Act or Order which penalises delayed supply of re-filled gas cylinders reason being that the supply of re-filled gas cylinders is dependent on availability of gas and priority of booking. 6. To understand that contention it is necessary to refer to the relevant provision. Sec.7(ii) of the Act makes punishable violation of any Order promulgated by the State Government by virtue of Secs.3 and 5 of the Act. Subclause (a) of clause 9 of the Order states that, “No distributor having stock of liquefied petroleum gas at the business premises, W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 6 :- including storage point, shall, unless otherwise directed by a Government oil company or a parallel marketeer, refuse to sell L.P.G on any working day during working hours, to the consumer registered with that distributor.” Clause 9(e) of the Order states that, “No distributor shall, without prior written permission of the concerned Government oil company, refuse to make home delivery at the address of the consumer, as registered with the distributor. 7. The argument of learned counsel is that there was only a delayed supply of re-filled gas cylinder in that petitioner had supplied re-filled gas cylinder on 26.05.2007 while sub clause (a) of Clause 9 refers to “refuse to sell” and sub clause (e) relates to “failure to make home delivery”. 8. In response, it is contended by learned Public Prosecutor that the interpretation made by the learned counsel cannot be accepted since if such an interpretation is accepted that would defeat the very object of enacting clause 9 in the Order. According to learned Public Prosecutor, the expression 'refuse to sell' appearing in clause 9(a) of the Order is not merely confined to sale at the first instance but, relates to sale of re- filled gas cylinder as well. It is also pointed out by learned Public W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 7 :- Prosecutor that apart from the above, there is also a case in Annexure-A1, final report that petitioner had manipulated the mandatory records to make it appear that he had sold the re- filled gas cylinder to the customer on 26.05.2007. It is argued by learned Public Prosecutor that the customer preferred complaint on 28.06.2007 and the mandatory records were manipulated by petitioner to make it appear that there was sale of re-filled gas cylinder on 26.05.2007 and if that case of prosecution is accepted, it would mean that even as on the date of complaint of the customer, there was no sale of re-filled gas cylinder which attracted clause 9(a) of the Order. It is also pointed out by learned Public Prosecutor that manipulation of mandatory records is punishable in view of clause 3(iv) of the Order. 9. The Investigating Officer has a case that mandatory records were manipulated by the petitioner to make it appear that there was sale of re-filled gas cylinder to the customer on 26.05.2007. The question whether that allegation is correct or not is a matter for the trial court to decide. Clause 3(iv) of the Order states that 'no distributor of a Government oil company or a parallel marketeer, as the case may be, shall commit or cause to commit any of the activities prohibited thereby including those specified in Schedule I'. in Schedule I, entry 9 is “manipulation of mandatory records”. Under clause 10(ii) and (iii) of the Order, W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 8 :- every distributor shall maintain proper accounts of daily purchase, sale and storage of liquefied petroleum gas at the business premises, number of filled, empty and defective cylinders received during the day and the number of filled, empty and defective cylinders sold, delivered or otherwise disposed of during the day. It appears to me that in view of clause 10 of the Order, petitioner was bound to maintain records showing the number of filled, empty and defective cylinders sold, delivered or otherwise disposed of during the day. In other words, if petitioner had sold re-filled gas cylinder to the customer, he was bound to make necessary entries in the relevant register to that effect and if that register is manipulated, it must come under item 9 of schedule I in which manipulation is prohibited by clause 3(iv) of the Order. I do not forget that learned counsel has an argument that even Annexure-A1, final report does not say that “mandatory” record has been fabricated. The mere absence of the expression 'mandatory' in the final report cannot make the allegation if otherwise the record is mandatory, anything else than 'mandatory'. It is therefore a matter to be ascertained in the trial whether there was in fact any manipulation of records, such record is a mandatory record as provided under the law and if so, there was any sale of re-filled gas cylinder even on the date customer preferred the complaint. These are matters for the trial W.P(C).No.28850 of 2010 and Crl.M.C.No.1284 of 2011 -: 9 :- court to decide. 10. Yet another argument learned counsel advanced is that as per Annexure-A5, order dated 26.05.2010 issued by the District Collector, the direction to register a case is based on a report of the District Supply Officer (a copy of which is Annexure- A6) which was not supplied to the petitioner. But, that report is only the material on which the District Collector has directed the Dy.S.P to register a case. As such, non supply if any of a copy of Annexure-A6, report cannot vitiate the proceeding. In the light of the above, contention raised in the writ petition as well as criminal miscellaneous case cannot stand. I make it clear that it is open to the petitioner to raise his contentions that there was no manipulation of record, at any rate the records allegedly manipulated are not mandatory records and that he had sold/supplied re-filled gas cylinder as he claims to the customer on 26.05.2007. Assuming so, what exactly is the consequence of that is a matter which the trial court has to decide. With the above observation, this writ petition and criminal miscellaneous case are dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge