IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 Crl.MC.No. 1442 of 2011() ------------------------- CC.215/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... PETITIONER(S): ACCUSED NOS.1,2&3: ---------------------------------------------------------- 1. PONNAMMA VARGHESE, W/O.CHERIAN VARGHESE, PUTHENCHIRAYIL, ALUVAPULAM. 2. KURIAKOSE KURIAN, S/O.ITTIYAVIRA KURIAN, THOOMPUNKAL, VAZHAPPALLY, CHANGANASSERY. 3. PRASAD, S/O.RAMAKRISHNAN KURUP, SOUPARNIKA HOUSE, ARUVAPULAM. BY ADVS. SRI.K.SURESH, SRI.VIPIN NARAYAN. RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. TALUK SUPPLY OFFICER, KOZHENCHERRY - 689 654. R1 & R2 BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1442 of 2011 -------------------------------------- Dated this the 8th day of June, 2011. ORDER Petitioners are accused 1 to 3 in Crime No.262 of 2008 of Konni Police Station and C.C.No.215 of 2010 of the court of learned Judicial First Class Magistrate-II, Pathanamthitta for offence punishable under Section 5(A) of the Kerala Rationing Order, 1966 read Sections 3 and 7 of the Essential Commodities Act, 1955 (for short, “the Act”). Prosecution case is that on 28.04.2008 the second respondent, Taluk Supply Officer inspected depot AWD No.11, found that there was excess quantity of boiled rice (excess of 2351 kg. in 48 bags), 100 bags of ration rice in that depot were unauthorisedly transported in a lorry bearing No.KL-33-6726 and thus petitioners who are the licensee, sales man and accountant of that depot committed offences as alleged. Petitioners request to quash proceeding against them mainly on Annexure-B, order dated 24.11.2008 issued by the District Collector, Pathanamthitta. 2. I have heard learned counsel for petitioners and the learned Public Prosecutor. Learned counsel argued that going through Annexure-B, order, it is clear that there is no substance in the allegation made by the Charging Officer who has merely acted on the statement of CW1. CW1 when examined in Annexure-B, proceeding stated that he saw three employees loading 100 bags of ration rice in lorry bearing No.KL-33-6726. Learned counsel has placed Crl.MC No.1442/2011 2 reliance on the decision of the Supreme Court in Radheshyam Kejriwal v. State of West Bengal and another ((2011) 3 SCC 581) to contend that in situations of this nature it is not necessary to send up petitioners for trial where proof beyond reasonable doubt is required. It is contended by the learned counsel that even the boiled rice said to be transported in the lorry could not be seized by the Police in the course of investigation. Learned Public Prosecutor submitted that dropping of departmental proceedings is not a ground to interfere with the criminal prosecution. That the witnesses cited by the prosecution gave statement to the District Collector that they have not seen any incident as alleged is not a ground to interfere with the trial of the case in the light of the final report submitted by the Police. 3. I have referred to Annexure-B, order passed by the District Collector in departmental proceeding relating to the question whether licence in favour of the first petitioner is to be cancelled or not, in view of the alleged incident. The District Collector has stated that evidence given by the Taluk Supply Officer (CW1 in the present case) is not convincing that when he conducted stock verification he had not taken weight of the entire stock and that weight was assessed by taking into account the number of gunny bags. The Taluk Supply Officer is said to have told the District Collector that in various gunny bags, weight of the rice may vary, in some it may be 49 kgs. and in some, 51 or 52 kgs. though, a gunny bag is required to contain 50 kgs. of rice. That version of the Taluk Supply Officer did not appeal to the District Collector. Crl.MC No.1442/2011 3 It is also seen that when witnesses cited by the prosecution were examined before the District Collector they claimed that they had not seen any such incident and gave a statement in that line. 4. Now the question is whether in view of Annexure-B, order prosecution against petitioners is not annulled. The Investigating Officer has submitted a final report which contained the statements of CWs 2 to 4 that they loaded 100 bags of rice from the depot of petitioner and that it was transported in a lorry bearing No.KL-33-6723. It is a different matter that the said rice allegedly transported in the vehicle could not be seized, whatever be the reason thereof. CW1, Taluk Supply Officer stated that on inspection he found excess quantity of 2351 kgs. of boiled rice and the same was seized as per a mahazar. Criminal court may have to consider the evidence let in regarding seizure of excess rice from the depot of first petitioner. Mere dropping of departmental proceeding is no ground to quash criminal prosecution. I referred to the statement of CWs 2 to 4 before the Investigating Officer that they loaded in the lorry 100 bags of ration rice from the depot of first petitioner. They have to testify in the criminal court. That they said elsewhere that they did not do so, cannot be a ground to quash prosecution. There is also the statement of CWs 5 and 6 regarding CW1, Taluk Supply Officer seizing excess rice from the depot in question. These aspects are to be looked into by the criminal court. Having regard to these aspects merely because the departmental proceeding is dropped, criminal prosecution against petitioners is not liable to be quashed. Crl.MC No.1442/2011 4 5. It is pointed out by the learned counsel that first petitioner is a lady aged about 60 years. Petitioners 2 and 3 are salesman and accountant of the depot which fact is not disputed before me. Learned counsel submitted that the physical presence of petitioners in the trial court may be exempted. 6. That certainly is a matter which the trial court has to consider having regard to the allegations made against petitioners and taking into account whether there is possibility of any dispute regarding identity of petitioners. In that circumstances it is directed that if any request for exemption from personal appearance is made on behalf of petitioners, even in absentia, learned Magistrate shall consider that request and pass appropriate orders. With the above direction this Criminal Miscellaneous Case is disposed of. THOMAS P.JOSEPH, Judge. cks