IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 Crl.MC.No. 427 of 2010() ----------------------------------- CC.247/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA CRIME NO.220/2005 OF WANDOOR POLICE STATION. .................... PETITIONERS/ACCUSED ------------------------------------ 1. K.T. MUHAMMEDUNNI, S/O.RAYINKUTTY HAJI, KARALIKKATTU, THUNDAPURAKKAL HOUSE, WANDOORAMSOM DESOM, MALAPPURAM DISTRICT. 2. K.T. AHAMMED BASHEER, S/O.RAYINKUTTY HAJI, KARALIKKATTU,THUNDAPURAKKAL HOUSE, WANDOORAMSOM DESOM, MALAPPURAM DISTRICT. 3. K.T. ANEESH BABU, S/O.RAYINKUTTY HAJI, KARALIKKATTU, THUNDAPURAKKAL HOUSE, WANDOORAMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------ 1. THE SUB INSPECTOR OF POLICE, WANDOOR, MALAPPURAM. 2. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.427 OF 2010 ------------------------------------------ Dated 9th March 2010 O R D E R Petitioners are the accused in C.C.247/2007 on the file of Judicial First Class Magistrate-II, Perinthalmanna. As is clear from Annexure-A7 proceedings, learned Magistrate has taken cognizance for the offence under Section 7 of Essential Commodities Act, read with Section 17 of Kerala Petroleum Products Dealers Licensing Order, 1987. After appearance of the accused charge was framed. Petitioners pleaded not guilty. Prosecution then examined nine witnesses. Thereafter petitioners were questioned under Section 313 of Code of Criminal Procedure and case was posted for judgment to 27/10/2009. It Crmc 427/10 2 was then adjourned to 31/10/2009. Case was then suo motu re-opened on that day and posted for further argument to 4/11/2009. Investigating Officer then filed C.M.P.4012/2009 to alter the charge. It was dismissed by Annexure-A4 order on 2/12/2009. Prosecution thereafter filed Crl.M.P.4083/2009 for alteration of the charge as violation of clause 3 A of Kerosene (Restriction on use and Fixation of Selling price) Control Orders, 1993 and clause 3(V) (VI) of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998. By Annexure-A5 order learned Magistrate dismissed the said petition finding that as per the decision of this court in Johny Thomas v. Union of India (2009 (2) KLT 447 Crmc 427/10 3 Petroleum Products Dealers Licensing Order, 1981 was declared unenforceable and void, as it is repugnant to the central orders. Learned Magistrate while dismissing the petition also observed that the dismissal will not affect the right of the prosecution to bring to the notice of the court the relevant orders and sections and also the power of the court to alter the charge. Thereafter, learned Magistrate on 22/12/2009, suo motu re-opened the case recording satisfaction that charge is to be altered showing the relevant orders. By order dated 7/1/2010 learned Magistrate passed Annexure-A6 order holding that even though Kerala Petroleum Products Dealers Licensing Order, 1987 was declared void and unenforceable, as is clear from the said Crmc 427/10 4 decision, the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) order, 2005 are in existence and the acts committed by the petitioners would attract clause 3(6) of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 and hence charge is to be altered. Petitioners were directed to appear, so as to frame charge. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A6 order. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel argued that even though learned Magistrate has jurisdiction to Crmc 427/10 5 alter the charge at any stage, facts of the case reveal that even if, charge is to be altered, petitioners cannot be prosecuted and therefore, it is not in the interest of justice to alter the charge. Learned counsel pointed out that clause 7 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 provides the power of search and seizure and under Sub clause (1), any Gazetted Officer of the Central Government or a State Government or any Police Officer not below the rank of Deputy Superintendent of Police duly authorised, by general or special order of the Central Government or a State Government, or any officer of the oil company not below the rank of Sales Officer has the power to Crmc 427/10 6 conduct search and seizure and as provided under clause 8 three samples are to be drawn in three samples and as provided under Sub clause 4 authorized officer shall forward the sample of the product taken within ten days to any of the laboratories mentioned in schedule III and only one sample was taken and as is clear from Annexure-A2 report it was not sent to the nearest laboratory at Kochi as notified but to Kozhikode and in such circumstances, even if petitioners are to be tried, there is no likelihood of a conviction for the altered charge and these aspects were not considered by the learned Magistrate and therefore, Annexure-A6 order is to be quashed. 4. Annexure-A6 order shows that learned Magistrate decided to alter the Crmc 427/10 7 charge on the ground that altering of the charge will not prejudice the accused as violation of which rule would attract an offence under Essential Commodities Act was not shown in the charge and therefore, it is necessary to alter the charge. Annexure-A6 order shows that learned Magistrate while deciding to alter the charge, did not consider the relevant clauses in the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005. As rightly pointed out by the learned counsel appearing for the petitioners only a Police Officer not below the rank of Deputy Superintendent of Police duly authorised, can conduct a search or seizure. Seizure in this case was not by a Deputy Superintendent of Police, but by a Sub Crmc 427/10 8 Inspector of Police, much below in the rank. Similarly, clause 8 of the order provides for sampling of product and testing. Though under clause 8 three respective samples are to be prepared and two samples of motor spirit or one of high speed diesel would be given to the dealer or transporter or the concerned person under acknowledgment, with instruction to preserve the sample in his safe custody till the testing or investigations are completed the remaining two samples or motor spirit or one of high speed diesel would be used for laboratory analysis. Under clause 4 authorized officer shall forward the sample of the product taken within ten days to any of the laboratories mentioned in schedule III or to any other such laboratory when it may be notified by Crmc 427/10 9 the Government in the Official Gazette for this purpose, for analysing with a view to checking whether the density and other parameters of the product conform to the requirements of Bureau of Indian Standard specifications number IS.2796 and IS.1460 for motor spirit and high speed diesel respectively. Under clause 5, the laboratory shall furnish the test report to the Authorized Officer, within twenty days of receipt of sample at the laboratory and under clause 6 Authorized officer shall communicate the test result to the dealer or transporter or concerned person and the oil company, within five days of receipt test results from the laboratory for appropriate action. 5. When admittedly search was Crmc 427/10 10 conducted and seizure was affected by a Sub Inspector of Police and not by a Police Officer not below the rank of Deputy Superintendent of Police and no sampling as provided under clause 8 was taken or sent, even if petitioners are to be tried on the altered charge, there is no likelihood of a successful prosecution. Unfortunately, these aspects were omitted to be considered by the learned Magistrate while deciding to alter the charge. In such circumstances, Annexure-A6 order is quashed. Learned Magistrate is directed to proceed with the case in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.