Abdul Razak s/o. Abubackar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936 Crl.MC.No. 1399 of 2012 () --------------------------(C.C.NO.1077/2009 of THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, TIRUR) PETITIONER/ACCUSED NO.5: -------------------------------- ABDUL RAZAK S/O. ABOOBACKAR, AGED 46 YEARS, NADAKKAVIL HOUSE, VALANCHERRY P.O., TIRUR TALUK, MALAPPURAM. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT/STATE: --------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, VALANCHERRY POLICE STATION IN CRIME NO.628/2008. BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1399 of 2012 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A-1: A TRUE COPY OF THE FINAL REPORT IN CRIME NO.628/2008 OF THE VALANCHERRY POLICE STATION. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** -----------------------------Crl.M.C.No.1399 of 2012 ------------------------------Dated 14[th] October, 2014 ## **ORDER** The petitioner herein is the 5[th] accused in C.C.No.1077 of 2009 on the files of the Court of Judicial First Class Magistrate, Tirur. The petitioner stands indicted for offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 (for short `the Act') and Clause 5A of the Kerala Rationing Order, 1966 (for short `the Order'). The prosecution case is that on 16.2.2008 the second accused collected 200 bags of `ration rice', each carrying 50 Kgs. and affixed with the seal of different depots of the FCI in Andhra Pradesh, from a concern by name ` _Palakkad Trading Corporation Rice and Wheat Merchants_ ' run by the 3[rd] and 4[th] accused, as arranged by the 6[th] accused for the purpose of selling through the shop run by the 5[th] accused, and they were unlawfully kept for sale in a shop room taken on lease by the first accused. After the seizure of the ration rice Crime No.628 of 2008 of Valanchery Police Station was registered and after the completion of the investigation Annexure-A1 final report was filed before the Court of Judicial First Class Magistrate, Tirur and it was taken on file as C.C.No.1077 of 2009. Crl.M.C.1399/2012 2 2. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor. 3. As noticed hereinbefore, the petitioner is the accused under Section 3 of the Act and Clause 5A of the Order, punishable under Section 7 of the Act. For the purpose of proper disposal of this case it is relevant to refer to the aforementioned sections of the Act as also Clause 5A of the Order. Clause 5A of the Order reads as follows:- “ **5A** . No person shall on or after the 17[th] of August 1967 have in his control or possession any ration rice or ration wheat any product of ration rice or ration wheat in excess of the quantity to which he is entitled for a period of four weeks on the authority of his ration card or other ration document issued to him or on his behalf. **Explanation** :- For the purpose of this clause, “ration rice” or “ration wheat” means rice or wheat issued- (a) from the depots of the Food Corporation of India to authorised wholesale distributors or authorised retail distributors; or (b) by authorised wholesale distributors to authorised retail distributors or establishments; or (c) by authorised retail distributors to card holders or establishments.” Crl.M.C.1399/2012 3 4. Evidently, Kerala Rationing Order was made in exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Essential Commodities Act read with the Order of the Government of India in the Ministry of Food, Agriculture, Community Development and Co-operation (Department of Food) No.GSR, 906 dated 9[th] June, 1966 published in the Gazette of India Extraordinary Part II Section 3, subsection (i) dated the 9[th] June, 1966. Section 3 of the Act deals with the powers to control production, supply, distribution etc. of essential commodities. As noticed hereinbefore, it is for maintaining the supply of essential commodities and for securing their equitable distribution and availability at fair prices that the Kerala Rationing Order was made. In such circumstances, contravention of the provisions under Clause 5A of the Order would amount to contravention of Section 3 of the Act and thereby punishable under Section 7 of the Act. Essentially, the contention of the petitioner is that he would become liable for penal consequences only if there is an allegation against him that the ration rice seized as aforementioned was in his control or possession at the time of interception. The accusation in Annexure-A1 final report would reveal that apart from the allegation that the ration rice was intended to be sold through the shop owned by the 5[th] accused there was no allegation which would connect the petitioner with the alleged offence. Crl.M.C.1399/2012 4 As noticed hereinbefore, it is the control or possession of the seized rationed articles at the time of interception which would visit a person with penal liability. In this case, the very prosecution case is that as arranged by the 6[th] accused the second accused collected 200 bags, each containing 50 Kgs., of ration rice from a concern run by the 3[rd] and 4[th] accused and they were unlawfully kept for sale in a shop room taken on lease by the first accused. Apart from the allegation that the ration rice which were unlawfully kept for sale in the shop room taken on lease by the first accused was intended to be sold through the shop belonging to the 5[th] accused there is absolutely no evidence collected in this case to connect the petitioner with the alleged offence. There cannot be any doubt with respect to the position that even if a statement is obtained from any of the co-accused of the petitioner that the seized ration rice were intended to be sold through the shop of the 5[th] accused that by itself is not a ground for implicating the petitioner, the 5[th] accused in the crime in the absence of any other independent material and even going by the prosecution case the seized ration rice were unlawfully kept for sale in the shop taken on lease by the first accused. Absolutely, no material is collected during the investigation to show that possession of the seized ration rice was parted with in favour of the petitioner at any point of time. In Crl.M.C.No.745 of 2013 this Court had an occasion to Crl.M.C.1399/2012 5 consider a similar matter. The second accused in C.C.No.119 of 2011 on the files of the Court of Judicial First Class Magistrate-I, Changanacherry filed the said Crl.M.C.. This Court considered the meaning of the words of `control' and `possession'. The word `control' was taken to mean `restrain' or `influence' and at times synonymous with the word `superintendence'. It was held therein that the word `control' requires a positive act and that in order to have possession over a thing, the possessor should exercise not only control, but also should have dominion over the Article. In the light of the said meaning of the words `control' and `possession' the case of the prosecution was examined and evidently, it is found that the prosecution got no case that police got any special information that the second accused was in control or possession of the article except the allegation that it was intended to be sold through the shop of the petitioner. Evidently, the decision of this Court in _**Dayanandan**_ v. _**State of Kerala**_ **(1989 (2) KLT SN 14 (Case No.16))** was referred to in the said order. The decision in so far as it is relevant reads as follows:- “ As regards the 2nd accused, he has been found guilty of violation of Clause.5 and 5A of the Rationing Order. The 2nd accused is admittedly a driver and he was transporting 24 quintals of rice from the shop of 1st accused as a public carrier. It cannot be said that he has obtained any rationed article from the wholesale distributor unauthorisedly. PW3 Crl.M.C.1399/2012 6 has deposed that 2nd accused was in possession of the G.V.R. Clause.5 of the Rationing Order does not specifically say that a public carrier should have any separate permit to transport rationed article from one place to another. So also Clause.5A of the Rationing Order says that no person shall on or after 17th August, 1967 have in his possession rice or ration wheat in excess of the quantity of which he is entitled for a period of four weeks on the authority of his ration card or other ration document issued to him. It cannot be said that the 2nd accused had been in possession of these ration articles. In the absence of Specific provisions in the Rationing order the general law under Sale of Goods Act are made applicable it could only be presumed that the consignor had been in possession of the goods and a public carrier cannot deemed to be in possession of the articles unless the consignor has parted with the possession of these articles. No such evidence has been adduced by the prosecution to show that the possession of these articles was parted with in favour of the 2nd accused. So, the violation of Clause.5A of the Kerala Rationing Order also is not proved by the Prosecution.” In the light of the said provisions and the decision in **Dayanandan's** case (supra) it was ultimately found that apart from the allegation that the seized rationed articles were sent to the petitioner there was no material to connect the petitioner therein with the crime and it was held that the offences alleged against the petitioner therein were not maintainable and accordingly the Crl.M.C. was allowed. 5. In this case, as noticed hereinbefore, apart from the allegation that the seized rationed article was intended to be sold through the shop belonging to the petitioner, the 5[th] accused, the Crl.M.C.1399/2012 7 prosecution collected no material to connect the petitioner with the aforesaid crime. The prosecution also got no case that there is any special reason to contend that the petitioner/5[th] accused was in control or possession of the seized rationed article. In short, except the allegation that it was intended to be sold through the shop belonging to the petitioner/the 5[th] accused there was absolutely no material to connect the petitioner with the alleged crime. It is also evident that there is no case for the prosecution that the rationed articles seized had been in the possession or control of the petitioner or was found under the control or possession of the petitioner. In short, Annexure-A1 final report does not reveal that the petitioner was in control or possession of the rationed articles. In the absence of any such accusation the allegations against the petitioner can only be stated to be absolutely unsustainable. I have no hesitation to hold that in such circumstances, even if the prosecution is allowed to be continued against the petitioner there will not be even a remote chance for convicting the petitioner for the offences alleged and in such circumstances, allowing continuation of the prosecution case against the petitioner would tantamount to an abuse of process of the court. Therefore, I am of the view that this is an eminently fit case for the invocation of the inherent power under Section 482 Cr.P.C. to terminate the proceedings as against the petitioner. Crl.M.C.1399/2012 8 In the result, this Crl.M.C. is allowed. Annexure-A1 final report in so far as it relates to the petitioner and the further proceedings against the petitioner in C.C.No.1077 of 2009 based on the same pending before the Court of Judicial First Class Magistrate, Tirur are quashed. Sd/C.T.RAVIKUMAR Judge TKS