Dinu K. Kurien v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** ## **Crl.MC.No. 745 of 2013 ()** **--------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 119/2011 of J.M.F.C.I, CHANGANACHERRY.** **PETITIONER(S)/ACCUSED NO.2:** **----------------------------------------------------** **DINU K.KURIEN, AGED 34 YEARS, S/O K.C.KURIEN, KIZHEKKE BHAGATH HOUSE, KADAVOOR KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN.** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 745 of 2013 ()** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **ANNEXURE-A: CERTIFIED COPY OF THE FINAL REPORT IN 1309/2010 OF CHANGANASSERY POLICE STATION NOW PENDING AS C.C. NO.119/2011 ON THE FILE OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE I, CHANGANASSERRY.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY// P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **------------------------------------------------** ## **Crl.M.C No.745 of 2013** **-----------------------------------------------Dated this the 12[th] day of August, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner is the second accused in crime No.1309/2010 of Changanassery police station registered under Section 3 of the Essential Commodities Act, 1955 (in short 'the Act') and Rule 5A of Kerala Rationing Order, 1966 (in short 'the Order') r/w Section 34 I.P.C. 2. Allegations borne out from Annexure A final report are the following : On 4-8-2010, the first accused transported 201 sacks of boiled rice from his godown in a vehicle bearing registration No.KL 5 Z 7737 to the mill owned by the petitioner/second accused. The article transported was rice intended for distributing through public distribution system. The accused were intending to make an unlawful gain by the said dealing. Therefore, they are guilty of the said offences. **Crl.M.C No.745 of 2013 2** 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. The provisions relevant for our purpose are the following. Section 3 of the Act deals the power of the government to control production, supply, distribution, etc., of essential commodities. Section 7 of the Act speaks about the penalties for contravention of any order made under Section 3 of the Act. The relevant Order 5A reads as follows : _“ 5A. No person shall on or after the 17[th] of_ _1967 have in his control or August 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 purposes of this clause, “ration rice” or “ration wheat”_ ## **Crl.M.C No.745 of 2013 3** _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.”_ 5. Learned counsel for the petitioner submitted that on a reading of the above order, it is evident that the penal liability can be mulcted on him only on alleging that the prohibited article was in his control or possession at the time of interception. The word “control” contextually may mean “restrain” or “influence” or it can be synonymous with “superintendence” at times. It is indubitable that the word control requires a positive act. The word possession is a term well known to law. In order to have possession over a thing, the ## **Crl.M.C No.745 of 2013 4** possessor should exercise not only control, but also dominion over the article. Learned counsel for the petitioner submitted that even if we assume that the prosecution case is true, during the transit of an article it cannot be stated that the petitioner is either in control or in possession of the article. My attention is drawn to Order 44 , which reads as follows : _“_ _**44.** No authorised retail distributor or authorised establishment proprietor shall, on or after the rationing date, supply or offer or attempt to supply any rationed article supplied to him by the authorised distributor except for household consumption or for establishment consumption; nor shall any authorised retail distributor or authorised establishment proprietor supply, offer or attempt to supply such rationed article, on or after the rationing date for household consumption, establishment consumption or for any other_ **Crl.M.C No.745 of 2013 5** _purpose except under and in accordance with the provisions of this Order.”_ 6. On a reading of the above order, it is evident that the retail distributor or authorised establishment proprietor shall not offer or attempt to supply any rationed article supplied to him by the authorised distributor, except for the conditions mentioned therein. The distinction between the wording employed in Orders 5A and 44 are conspicuous. Therefore, there is some force in the argument that when the rationed articles were transported in a lorry from the possession of first accused allegedly to the petitioner/second accused, it cannot be stated that the second accused exercised control or possession during the course of transit, unless it is established that there was such a contract between them. Prosecution has no case that there was any special reason to infer that the second accused was in control or possession of the article except the allegation that it **Crl.M.C No.745 of 2013 6** was sent to the petitioner. 7. Learned counsel for the petitioner placed reliance on a decision of this Court in _**Dayanandan v. State of Kerala**_ ( _**1989**_ _**(2) KLT SN 14 (C.No.16)),**_ it 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 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_ **Crl.M.C No.745 of 2013 7** _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_ **Crl.M.C No.745 of 2013 8** _also is not proved by the Prosecution.”_ Therefore, considering the nature and amplitude of the allegations, I find that the final report does not reveal that the petitioner was in control or possession of the rationed articles. Hence, the offences alleged against the petitioner is not maintainable. In the result, Crl.M.C is allowed. Annexure A final report insofar as it relates to the petitioner is hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge