IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 8117 of 2010(L) ------------------------------------ PETITIONER(S): ---------------------- 1. M/S.INDUSTRIAL GAS DEALERS ASSOCIATION ERNAKULAM ,ST.FRANCIS CHURCH CROSS ROAD KALOOR, ERNAKULAM, REP BY ITS SECRETARY SHRI.T.K.S MENON, AGED 56, S/O.LATE K.P.GOVINDANKUTTY MENON. 2. SHRI.A.V.JOSEPH, AGED 60 S/O.VARGHESE, ELENJERI HOUSE,SOUTH JANATHA ROAD PALARIVATTOM, KOCHI-25 (PROPRIETOR, SHONEY GAS AGENCIES, PALARIVATTOM KOCHI-25. 3. SHRI.T.K.S.MENON, AGED 56 S/O.LATE K.P.GOVINDANKUTTY MENON, PROPRIETOR M/S. ASSOCIATED ENTEERPRISES, 36/2588, VALIYAPARAMBIL BUILDINGS, KALOOR-KATHRUKADAVU ROAD KALOOR PO, ERNAKULAM, KOCHI-17 4. SHRI N.SACHIDANANDA PAI, AGED 49 S/O.C.N.NARAYANA PAI, PROPRIETOR, M/S. SURYA ENTERPRISES,SRINGAPURAM,COLLEGE ROAD KODUNGALLURE, THRISSUR DISTRICT. 5. SHRI G.SANJEEV KUMAR, AGED 44 S/O.GOVINDA BHATT, PROPRIETOR, M/S. LAXMI AGENCIES KELTRON ROAD, AROOR. 6. SMT. P.REENA, AGED 43 W/O.T.M.REGHUNATHAN, VIVEK AGENCIES KALPATTA NORTH, WAYANADU DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR SMT.M.T.RANIMOL RESPONDENT(S): ------------------------- 1. STATE OF KERALA , REP BY SECRETARY MINISTRY OF HOME AFFAIRS, SECREARIAT,TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE STATE OF KERALA, TRIVANDRUM. WPC 8117 OF 2010 -2- 3. THE COMMISSIONER OF POLICE COCHIN CITY, ERNAKULAM. 4. THE SUPERINTENDENT OF POLICE (RURAL) ERNAKULAM, HAVING OFFICE AT ALUVA. 5. THE SUB INSPECTOR OF POLICE ELOOR POLICE STATION, ELOOR. 6. THE SOUTHERN GAS LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT,1956 AND HAVING ITS RETGISTERED OFFICE AT IST FLOOR GOVIND POY HOUSE, RUA DO PADRE MIRANDA, MARGAO 403 601, GOA, REP BY ITS EXECUTIVE DIRECTOR SHRI GOVIND POY. 7. SREEKUMAR, S/O.SUKUMARA PILLAI SREYAS HOUSE,AROOR VILLAGE ALAPPUZHA, WORKING AS MANAGER ACCOUNTS & ADMINISTRATION, SOUTHERN GAS LTD, UDYOGAMANDAL. 8. RAVI. ADDL. SUB INSPECTOR OF POILCE ELOOR POLICE STATION, ELOOR. R1 TO R5, 8 BY GOVERNMENT PLEADER SRI.P.N.SUKUMARAN. R6 & R7 BY ADV. SRI.SOORAJ T.ELENJICKAL SRI.PREMSON PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.8117 of 2010-L ---------------------------------------------- Dated, this the 17th day of March, 2010 J U D G M E N T K.M.Joseph, J. Petitioners have approached this Court seeking the following reliefs:-- “i) to issue a writ, order or direction in the nature of Mandamus or other appropriate writ directing the respondents 5 and 8 or the concerned among them not to compel the members of the Ist petitioner including petitioners 2 to 6 to surrender the empty gas cylinders about which a civil dispute is going on as reflected in Ext.P2 in the purported exercise of further investigation in crime No.784/2009 on the files of Eloor police station in the interest of justice. ii) to issue a writ order or direction in the nature of mandamus or other appropriate writ directing respondents 5 and 8 or the concerned among them not to harass the petitioners their customers and not to interfere with the business conducted by them under the guise of investigation at the behest of respondents 6 and 7. iii) to issue a writ, order or direction in the nature of mandamus or other appropriate writ directing the respondents 2 to 4 or the concerned among them to take up Ext.P3 conduct a hearing and take a decision on the same and intimate the same to respondents 5 and 8.” 2. Briefly put, the case of the petitioners is as WPC 8117/2010 -2- follows:--The Ist petitioner is an association formed by various dealers of industrial gases. It is registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. There was an agreement between the 6th respondent and the concerned dealers. Under the agreement, the 6th respondent is to supply industrial gases in cylinders to the dealers. It is stated that the members of the petitioner were compelled to execute an agreement drafted out by the 6th respondent. There was Ext.P1 demand for increased security. Some of the petitioners filed Ext.P2 suit following Ext.P1 demand. It is stated that the police is harassing the petitioners. Petitioners have produced Ext.P5 which is an order of the Judicial First Class Magistrate, N.Paravur directing investigation to be done and Ext.P6 which is an order of the Sessions Judge, Ernakulam granting bail to some of the members of the Ist petitioner. 3. We heard the learned counsel for the petitioners Sri.C.Varghese Kuriakose, learned Government Pleader and Sri.Sooraj T.Elenjickal who appears on behalf of respondents 6 and 7. Petitioners have not stated that there is a termination of the agreement. But, the learned counsel for respondents 6 and 7 submits that actually respondents 6 and WPC 8117/2010 -3- 7 have after the filing of Ext.P2 suit terminated the dealership entered into between the 6th respondent and the members of the Ist petitioner. Learned counsel for respondents 6 and 7 would also submit that there is power under Rule 71 of the Gas Cylinder Rules to seize the cylinders. Learned counsel for the petitioners would submit that the matter is of a civil nature and the petitioners have already moved against Ext.P5 order. He would submit that the petitioners and their customers may not be harassed. Learned Government Pleader submits that investigation is going on. 4. After having heard the learned counsel for the parties, we are of the following view. Though a crime was registered on the basis of the complaint received from the 6th respondent it was treated as a civil case and report is prepared. The 6th respondent filed a petition and that resulted in Ext.P5. In Ext.P5 the learned Magistrate has taken note of the fact that the 6th respondent has terminated the agreement and inter alia found that there was no proper investigation earlier and directed proper investigation. Thus, there is a crime registered. There is also a direction to carry on proper investigation by the Magistrate. It is no doubt true that there was an application for seizure. WPC 8117/2010 -4- According to the learned counsel for the 6th respondent no orders have been passed. The upshot of this discussion is the official respondents will be free to investigate the matter as directed in Ext.P5 in accordance with law. If the seizure of the cylinder is permissible as per law, the same can be done. However, we make it subject to the order that may be passed by the Sessions court in the revision filed by the petitioner. Further, we also direct that if attendance of any person is required in connection with investigation it should be preceded by notice under Section 160 Cr.P.C. The writ petition is disposed of as above. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS