Karthigesu K.P. v. State of Kerala (Bail Application)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH DAY OF AUGUST 2013/21ST SRAVANA, 1935 Bail Appl..No. 4715 of 2013 () ------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 28784/2012 of HIGH COURT OF KERALA DATED CRIME NO. 526/2013 OF ADOOR POLICE STATION , PATHANAMTITTA ACCUSED(S)/PETITIONER/ACCUSED: ---------------------------------------------------------- KARTHIGESU K.P. S/O. KANTHASWAMI, THENGUMVILAYIL, 3 PANNIVIZHA EAST, ADOOR MUNICIPALITY, PROPRIETOR HOTEL ARYAS ADOOR (ACCUSED RESIDES WITHIN THE LIMITS ADOOR POLICE STATION). BY ADVS.SRI.C.S.AJITH PRAKASH SRI.M.P.PRAKASH COMPLAINANT(S)/RESPONDENTS: ------------------------------------------------------ REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA-682031. 2. STATION HOUSE OFFICER ADOOR POLICE STATION-691523. R BY PUBLIC PROSECUTOR SMT.LALIZA T.Y THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 1-082013, THE COURT ON 12/8/2013 PASSED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** ## **========================== B.A. No. 4715 of 2013 ===========================** **Dated, this the 12th day of August, 2013** **ORDER** Petitioner is the accused in Crime No.526/2013 of Adoor Police Station registered for the offences punishable under section 3(1) (c) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 and Section 6 and 7 of the Essential Commodities Act, for short the Act. He has filed the above application seeking anticipatory bail under section 438 of the Code of Criminal Procedure, for short the Code. 2. Allegation is that petitioner who is conducting a hotel had kept in his possession nine empty gas cylinders, five of them ear B.A.No.4715/2013 2 marked for domestic purposes and the rest,four of them, for commercial purposes, in a building where employees of his hotel were accommodated. Storage of the above cylinders without authority in such premises was detected by Taluk Supply Officer on 24.7.2012, who seized them into custody. Proceedings were initiated under the Act by the District Collector,who, after hearing the petitioner, ordered confiscation of the gas cylinders and handing over them to an Oil company. District Collector also ordered for initiating prosecution proceedings against petitioner, and thereupon crime was registered against petitioner for the offences stated supra, and, it is now under investigation. 3. Learned counsel for petitioner submitted that previously he had challenged orders issued by Sub Divisional Magistrate fixing price of food articles sold in hotels during Sabarimala season. Hoteliers including petitioner were directed by B.A.No.4715/2013 3 that executive authority put up a board in the hotel publishing the price list of food articles as fixed, and also sell food articles only at the rate fixed. Challenge raised by petitioner and similarly placed hoteliers against such Orders before this court has been upheld holding that hoteliers cannot be compelled to adhere to the price list nor publish such price list in hotels as directed by the executive authority. More than once petitioner had resisted attempts by the executive authorities to enforce price of food items fixed by them, and, therefore, the present proceedings under the Act were initiated against him on detection of some empty gas cylinders in a building where employees of his hotel were accommodated. In fact previous owner of the hotel had kept them there and the gas cylinders so kept are rusted and out of use, is the submission of counsel. Crime was registered on the Orders issued by District Collector, alleging that the B.A.No.4715/2013 4 empty gas cylinders had been seized from the hotel premises whereas it was seized from a different place. In the Order passed by District Collector also, copy of which is produced as Annexure A11, learned counsel submits confiscation of cylinders was ordered with direction to prosecute petitioner forming a wrong conclusion that the empty gas cylinders were kept unauthorisedly in his hotel. Learned counsel adverted to the deletion of the words “and non-bailable” in section 10A of the Act inviting my attention to a decision rendered by Madhya Pradesh High Court in **Dinesh Kumar Dubey and another v. State of M.P.(2001 KHC 2098).** Learned counsel fairly conceded that the view taken in the above decision that offences under the Act are bailable on account of the deletion of the words'and non bailable' in section 10A of the Act cannot be accepted as correct. However, it is submitted, the deletion of the above words 'and non bailable' in Section 10 A of the Act has to be B.A.No.4715/2013 5 given consideration in examining the request of petitioner, for granting him the discretionary relief of pre-arrest bail. 4. I heard learned Public Prosecutor also, who made available the Case Diary for my perusal. Investigation of the crime is continuing and the offences under the Act have to be viewed seriously is stressed upon by learned Public Prosecutor to oppose the application. 5. Normally, an offender proceeded under the Act for a non bailable offence thereunder in the absence of showing that there is reasonable ground to presume his innocence cannot be extended the discretionary relief of pre arrest bail. The Act and the Orders thereunder are intended to secure equitable distribution and availability at a fair prices foodgrains commodities and articles, and prevent their hoarding and unauthorised dealings.Concededly, usage, storing etc of gas cylinders is covered by Liquefied Petroleum Gas B.A.No.4715/2013 6 (Regulation of Supply and Distribution) Order 2000, published under section 3 of the Act. Allegation is that petitioner kept in his possession unauthorisedly nine empty gas cylinders infringing the provisions of the above Order and therefore liable to be penalised for the offence thereof under the Act. I do not find much merit in the submission of counsel for petitioner over the place from which empty gas cylinders were seized into custody by Taluk Supply Officer. Storage of empty gas cylinders was in the hotel or in a different building where hotel employees were accommodated, does not make much difference if it was unauthorised. The question then is only whether petitioner had kept them unauthorisedly violating the provisions of the Act and the Order relating to liquefied petroleum gas. In the order passed by Collector, and also while registering the F.I.R of the crime, the place where empty gas cylinders were detected is shown differently, at B.A.No.4715/2013 7 this stage, cannot be given importance in considering entitlement of petitioner to claim pre -arrest bail. Similarly, absence of the words “and non bailable” in Section 10A of the Act after the word 'cognizable' in Section 10A of the Act cannot have any impact in the exercise of discretionary relief of anticipatory bail in a case involving an offence under the Act. The decision rendered by the Madhya Pradesh High Court referred to above holding that the offences under the Act are bailable, with respect, cannot be accepted as correct. The words “and non-bailable” were inserted in Section 10A of the Act under Act 18 of 1981, later, amended by Act 34 of 1993, which remained for a period of 15 years from its commencement. After expiry of the period fixed, the Essential Commodities (Special Provisions) Act, 1981 lapsed in 1998 and thereupon, the Special Court constituted under section 12A of that Act and also the words inserted “and non bailable” in B.A.No.4715/2013 8 Section 10A of the Act rendering all offences of the Act 'non bailable' ceased to have effect **(See** ## **State of Tamil Nadu v. Parmasiva Pandian AIR 2001** **SC 2972)** . However, removal of the words”and non bailable” in Section 10 of the Act, inserted under Essential Commodities (Special Provisions) Act, 1981 (18 of 1981), it does not follow that all offences under the Act have become bailable. Whether offence under the Act over violation or contravention of any of the Orders issued under section 3 of the Act is bailable or non bailable has to be examined with reference to the penalty provided for such offence under section 7 of the Act and Schedule II of the Code. Where the penalty provided for contravention of an Order is less than three years the offence thereof is bailable, and when it is three years or more, it is nonbailable in terms of Schedule II of the Code. In the present case, contravention of the Order B.A.No.4715/2013 9 imputed over unauthorised storage and use of gas cylinders other than for the purpose issued, invites penalty under section 7(1)(ii) of the Act, which provides punishment upto a term of seven years with fine and the offence thereof is non bailable. 6. Confiscation proceedings over an essential commodity invoking Section 6A of the Act for contravention of any Order under the Act is different from steps taken for prosecution against the offender for such contravention. Whether or not a prosecution is instituted for the contravention of an Order, District Collector is empowered to direct confiscation of the seized essential commodity ,if he is so satisfied. In the present case prosecution has been launched against petitioner only much later after passing of Annexure A11 order by District Collector and that too on the directions issued thereunder. A11 order shows that petitioner was heard and his B.A.No.4715/2013 10 explanation looked into to pass the order of confiscation of gas cylinders with direction for his prosecution. Annexure A11 is shown to be a non- speaking order. Taking note of that with the belated registering of crime against petitioner for contravention of the Order involved, I find arrest and custodial interrogation of petitioner as such may not be required for a fair investigation of the crime. He can be granted anticipatory bail with direction to co-operate with the investigation of the crime. Petitioner is directed to report before the investigating officer at 10 a.m on 16.8.2013. On such appearance, after his interrogation, in the event of his arrest in the crime, he shall be released on bail on his executing a bond for Rs.15,000/- with one solvent surety for the like sum. Petitioner has to co-operate with the investigation of crime, and to appear before B.A.No.4715/2013 11 investigating officer as and when directed, till investigation is completed. Petitioner shall not leave the State for a period of four months or till completion of investigation of crime, whichever is earlier, without getting prior permission from the investigating officer in writing. Petition is allowed as indicated. **S.S.SATHEESACHANDRAN JUDGE** tpl/-