A single judge bench of the Madras High Court comprising Justice G. Jayachandran rejected a criminal petition and held that Section 6D of the Essential Commodities Act, 1955 clearly states that the award of any confiscation under the Act by the Collector shall not prevent the infliction of any punishment to which the person affected is thereby, liable under this Act. Thus, the principle of double jeopardy or Autrefois conviction would not apply.
Facts:
On 10/09/2016, the petitioners were found in possession of 600 litres of kerosene worth Rs.9,000/- in a van. According to the Respondent Police, the said kerosene is meant for public distribution and these petitioners had purchased it from the cardholders for less price and transported it with an intention to sell it in the black market for a higher price. The petitioners admit the guilt. However, the prosecution is challenged on the ground that the respondent police cannot prosecute for the said offence since for the very same offence, the DRO had conducted an enquiry and levied a fine of Rs.8520/- for the first petitioner and in lieu of confiscation of the vehicle, fine of Rs.80,000/- levied on the second petitioner. Both the petitioners have paid the fine levied.
Petitioners’ Contentions:
It is contended by the learned counsel for the petitioners that, the complaint is filed without application of mind. There cannot be two prosecutions for the same offence. As per the Kerosene Control Order, the Competent Authority can launch prosecution only on prior sanction. No Court can take cognizance without sanction. However, in this case, the complaint is not supported by a valid sanction for prosecution.
Respondent’s Contentions:
The learned Government Advocate (Crl. Side) submitted that under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, any person, who is in possession of 20 litres or more of kerosene at any time shall unless otherwise established, be presumed to be a dealer. The onus to establish that he is not a dealer shall be on the person concerned. Therefore, the petitioners, who were in possession of 600 litres of kerosene were presumed to be a dealer and action was taken under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 and under Section 7(1)(a)(ii) of the Essential Commodities Act. The DRO, Krishnagiri passed the order dated 22/12/2016 imposing a penalty in the confiscation proceedings initiated by him in the exercise of the power under Section 6A of the Essential Commodities Act, 1955. Whereas Section 6D of the Essential Commodities Act, 1955 clearly states that the award of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected is thereby, liable under this Act. The prosecution impugned in this petition is independent of the confiscation proceedings and the same is legally permissible and valid.
Observations of the Court:
After analysing the relevant provisions of the Essential Commodities Act, 1955 and the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, the bench concluded that the confiscation proceedings by the Competent Authority and prosecution through Court can be initiated simultaneously. One will not exclude the other. The double jeopardy principle or Autrefois conviction is not applicable to the facts of the case. Particularly, when Section 6D of the Essential Commodities Act, 1955, specifically clarifies, this legal position of law categorically by saying, “award of confiscation shall not prevent the infliction of any punishment”. Therefore, the award in confiscation proceedings dated 22/12/2016 passed by the DRO shall not prevent the prosecution proceedings.
While the law defining “offence” is found in the Kerosene (Regulation of Trade) Order in Clause 17, the penalty for contravention of the Order is prescribed in Section 7(1)a(ii) of the Essential Commodities Act, 1955. For taking “cognizance of the offence” defined under the Regulation Order, “sanction” under Clause 25 of the said order is mandatory. In the instant case, the final report, which is taken cognizance by the Judicial Magistrate No. I, Krishnagiri, is without the sanction to prosecute accorded by the Collector or his authorised Officer not below the rank of Sub-Divisional Officer. For the said reason, the criminal prosecution is liable to be quashed.
Decision:
The criminal petition in C.C. No.242/2017 on the file of Judicial Magistrate No.1, Krishnagiri was quashed. Accordingly, this Criminal Original Petition was allowed. Consequently, the connected Miscellaneous Petition was closed.
Case: Anand and ors. vs. State of Tamil Nadu
Citation: Crl. O.P. No. 7528 of 2019 and Crl. M.P. No. 4150 of 2019
Decided on: 12.09.2022
Coram: Justice G. Jayachandran
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