Muthukrishnan @ Anbazhagan v. State

The Petitioner / Accused viz. Muthukrishnan @ Anbazhagan wasdirected to be released on bail in and by order of this Courtdt.6.7.2006 made in Crl.M.P.No.1 of 2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17.07.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.706 of 2006Muthukrishnan @ Anbazhagan ... Petitioner / Accusedvs.State rep. ByThe Station House OfficerFood Cell Police StationPondicherry(Crime No.12 of 1999) ... Respondent/ComplainantPrayer: Petition filed under Section 397 and 401 of Cr.P.C.questioning the legality, validity and correctness of the convictionand sentence passed in C.A.No.54 of 2004 dated 28.06.2006 on the fileof the learned Principal Sessions Judge, Pondicherry in confirmingthe conviction and modifying the sentence passed in C.C.No.179 of2001 dated 09.07.2004 on the file of the learned Judicial MagistrateNo.1, Pondicherry convicting the petitioner for an offence underSection 7(1)(a)(ii) of the Essential Commodities Act, 1955 r/w clause4(a) of the Pondicherry Essential Commodities (DSPMA) Order 1975 andsentenced him to undergo three months SI and imposed a fine ofRs.5000/- and prays for setting aside the same and acquit thepetitioner by allowing this criminal revision petition.For Petitioner: Mr.V.ParthibanFor Respondent: N.A. O R D E RAnimadverting upon the order dated 28.06.2006 passed by thelearned Principal Sessions Judge, Pondicherry in C.A.No.54 of 2004confirming the conviction and modifying the sentence passed inC.C.No.179 of 2001 dated 09.07.2004 on the file of the learnedJudicial Magistrate No.1, Pondicherry, this criminal revision isfocussed.2. A 'resume' of facts which are absolutely necessary and germanefor the disposal of this revision petition would run thus:(a) The police laid the police report in terms of Section 173Cr.P.C. as against the accused for the offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.(b) Inasmuch as the accused pleaded not guilty, the trial wasconducted. During trial, on the side of the prosecution, P.Ws.1 to https://hcservices.ecourts.gov.in/hcservices/ 10 were examined and Exs.P1 to P15 were marked. On the side of thedefendant, D.Ws.1 and 2 were examined and no documentary evidence wasadduced.(c) Ultimately the trial Court recorded the conviction andimposed sentence as under:--------------------------------------------------------------SECTION IMPRISONMENT FINE AMOUNT--------------------------------------------------------------U/S u(1)(a)(ii) of theEssential CommoditiesAct, 1955, r/w clauseone year S.I. Rs.5,000/-4(a) of the PondicherryEssential Commodities(DSPMA) Order, 1975--------------------------------------------------------------(d) Being aggrieved by and dissatisfied with the conviction andsentence imposed by the trial Court, C.A.No.54 of 2004 was filedbefore learned Principal Sessions Judge, Pondicherry, which Courtconfirmed the conviction recorded by the trial Court, however,reduced the sentence from one year imprisonment to three monthsimprisonment and the rest of the judgment of the lower Court was leftin tact. 3. Impugning and challenging the judgments of both the Courtsbelow, this revision has been filed on various grounds, the gist andkernel of them would run thus:Both the Courts below fell into error in understanding that asalesman would not be covered under the definition of 'dealer' ascontemplated under the Pondicherry Essential Commodities (Display ofStocks and Prices and Maintenance of Accounts) Order, 1975 (hereinafter referred to as "the said order"). The evidence of theprosecution witnesses have not been properly considered.Accordingly, he prayed for setting aside the judgments of both theCourts below and for acquitting the accused.4. Heard the learned counsel for the revision petitioner.5. The learned counsel for the revision petitioner inviting theattention of this Court to various portions of the judgment woulddevelop his argument to the effect that P.Ws.4,5, 6 and 8, the rationcard holders deposed in support of the accused to the effect thatthey purchased kerosene during the relevant months concerned,however, because of the rush prevailing at the ration shop, entrieswere not made by the accused in their respective cards. It is alsothe contention of the learned counsel for the revision petitionerthat the revision petitioner is not a dealer and only a dealer ispunishable under Section 7(1)(a)(ii) of the Essential CommoditiesAct, 1955 r/w clause 4(a) of the Pondicherry Essential Commodities(DSPMA) Order 1975 (hereinafter referred to as the 'order'). Hereadmittedly the accused is only a salesman and in such a case,conviction recorded as against him and consequently the sentenceimposed is untenable. https://hcservices.ecourts.gov.in/hcservices/

6. It is therefore just and necessary to refer to the definitionof 'Dealer' as contained in clause (e) paragraph 2 of the said orderand it is extracted hereunder for ready reference:"Dealer" means any persons engaged in the business ofpurchase, movement, sale, supply, distribution or storageof essential commodities directly or otherwise whether forcash or for deferred payment or for commission,remuneration or other valuable consideration and includes:(i) a producer(ii) an importer(iii)a wholesaler(iv) a retailer(v) a casual trader(vi) a commission agent(vii) a broker(viii) a del creders agent; or(ix) an auctioner.or any other mercantile agent by whatever name called whocarries on such business on behalf of any principal."7. A plain reading of the above para would clearly evince andevidence that the accused herein even though happened to be asalesman is covered by that definition. However, the learned counselfor the revision petitioner would submit that a mere salesman workingfor salary cannot be taken as a dealer within the aforesaiddefinition.8. I would like to point out that this Court cannot countenancesuch an argument as put forth by the learned counsel for the revisionpetitioner for the reason that the definition as contained in thesaid order is an inclusive definition and it is having wideramplitude. Any person who sells kerosene after getting theentrustment from any person could be convicted, if there is anymisappropriation. Here actually kerosene was entrusted to theSorapet Village Co-operative Credit Society, which entrusted aparticular quantity of kerosene to its salesman, namely the accusedherein, to sell the kerosene to the ration card holders as per law. 9. The gist and kernel of the acquisition is that during themonths of June, July and August 1999, the accused who was responsibleas salesman of the kerosene shop No.162 at Sellipet was responsiblefor the custody and equitable distribution of kerosene to 851 (eighthundred and fifty one) ration card holders. However, he made falseentries in the 'B' register concerned as if 1091 litres of kerosenewas sold to card holders when in fact, he did not do so. The policeafter collecting the relevant ration cards found that the entrieswere not found made in those cards corresponding to the entries inthe 'B' register maintained by the accused.10. In these circumstances, it is pellucidly and apparentlycrystal clear that relating to Kerosene Shop No.162 at Sellipet, theaccused was the sole person responsible for the distribution of thekerosene entrusted to him by the said Co-operative society and insuch a case, persons like him are clearly covered by the definition https://hcservices.ecourts.gov.in/hcservices/ 'dealer' as contained in the aforesaid provision.11. The learned counsel for the revision petitioner cited thefollowing decision of this Court, so as to canvass his contention:1988(2)MWN (Cr) 114 [S.Chandran v. State]. This decision emergedrelating to the Tamil Nadu Scheduled Commodities (Regulation ofDistribution by Card System) Order 1982. An excerpt from it wouldrun thus:8. Mr.K.V.Sridharan, learned counsel for theappellant, representing Mr.T.S.Arunachalam, took methrough the evidence and the judgment of the lower Courtand made various submissions. According to the learnedcounsel, the Court below mainly relied on the retractedstatement of the accused and the evidence of P.Ws.1 and 2,besides the stock book and bill book. The maincontention of the learned counsel is that under clause 6(3) of the Tamil Nadu Scheduled Commodities (Regulation ofDistribution by Card System) Order, 1982, it is providedas follows:"The authorised dealer shall not supply thescheduled commodities against any family card notregistered with him or to non-cardholder."'Authorised dealer' is defined under section 2(b) of thesaid Order which reads as follows:-"2. In this Order, unless the context otherwiserequires,:(b) 'authorised dealer' means a dealerappointed by the Commissioner and includes the Co-operative Societies and the Tamil Nadu CivilSupplies Corporation."In the instant case, admittedly, the shop belongs to theAyodhiapattinam Agricultural Service Co-operative Society,Mettupatty Thadanoor Village and that the accused, evenfrom the evidence of P.Ws.1 and 2, is only a salesman, andas such, he cannot be prosecuted for the sale to non-cardholders as per the charge. The proper person to beprosecuted is the Society.9. In the connection, the learned counsel also drewmy attention to clause 14(1)(a) of the said Order whichreads as follows:"14. Further conditions to be observed by theauthorised retail shop.-(1) Every authorised dealer shall-(a) be held responsible for all the acts ofcommission and omission of his partners, agents, https://hcservices.ecourts.gov.in/hcservices/ servants and other person who are allowed towork in the shop".He also drew my attention to the similar provision in theother enactments wherein the employee is also held liable.But such a provision is not incorporated in this order.In the Tamil Nadu Foodgrains Dealers Licensing Order,1968, under clause 8, it is stated as follows:"Contravention of condition of licence orstatutory rules:- No holder of a licence issuedunder this order or his agent or servant or anyother person acting on his behalf shallcontravene any of the terms or conditions of thelicence or the provisions of this order or anyother order issued by a competent authorityunder section 3 of the Essential CommoditiesAct, 1955 (Control Act 10 of 1955), which is forthe time being in force and which relates to anyof the foodgrains specified in Schedule I tothis order and if any such holder or his agentor his servant or any person acting on hisbehalf contravene any of the provisions referredto above without prejudice to any other actionthat may be taken against him the licensingauthority D.R.O., Additional Collector,Collectors, D.C.C.S. Secretary to C.C.S orC.C.S., may cancel or suspend by order inwriting his licence."Clause 8 of the Tamil Nadu Kerosene (Regulation ofTrade) Order, 1973 runs thus:"Authorisation of certain dealers receivehold and sell Government stocks:,The authorised officer may authorise anydealer whether a wholesaler or retailer toreceive, hold and sell kerosene on behalf of theGovernment for such price and for such period asmay be specified and dispose it of in any mannerand subject to such conditions as may bespecified by the authorised officer from time totime..........Thus it is seen from the admitted facts that theaccused is only a salesman of the AyodhiapattinamAgricultural Service Co-operative Society and that onlythe Society is the Authorised dealer. Hence theprosecution against the accused who is only a servant ofthe society is not sustainable and the same is liable tobe set aside on this sole ground."A plain reading of those excerpts would exemplify and demonstratethat an employee like a salesman were not contemplated under the saidspecial provision referred to in that case and to that effect, the https://hcservices.ecourts.gov.in/hcservices/ learned Government Advocate (crl.side) who took time to verify andreport to the Court clearly state that there was no amendment to thatorder, but here to the risk of repetition and pleonasm but withoutbeing tautologous, I would like to point out that the definition'dealer' as contained in the Pondicherry Essential Commodities(DSPMA) Order 1975, included even salesman and persons like theaccused who was entrusted specifically with the task of running akerosene shop with the stock of kerosene entrusted by the said Co-operative Society. As such, the cited decision is not applicable tothe facts and circumstances of the case. The other two decisionscited by the learned revision petitioner would run thus: 1. 2006-2-L.W.(Crl.)567 [Ramanathan vs. State Rep. by theInspector of Police, Civil Supplies CID, Pollachi]2. 2001-2-L.W.(Crl.) 950 [Jesudoss v. State rep. by Inspector ofPolice, CS-CID, Coimbatore]12. On factual basis, the reasons set out by me supra for thenon-applicability of the cited precedent is also applicable to theaforesaid two precedents being not relevant to this case. Thelearned counsel for the revision petitioner's contention is that thedepositions of P.W.4, the card holder and the like would clearlyexemplify that the accused did not indulge in malpractice, but he wasso kind to the villagers and hence, he without even insisting forthe ration cards to be produced before him, due to heavy rushprevailing there, released kerosene for which he should not bepenalised. Both the Courts below considering the very plea of theaccused held that the law is very clear that only after makingappropriate entries in the ration card, kerosene should be sold. 13. At this juncture, I would point out that the order referredto supra is contemplating socio-economic offences. Strict liabilitytheory is applied in interpreting the relevant provisions. As such,it is not a traditional offence for applying general defences orother traditional pleas. Once it is found established that there areviolations in selling kerosene, then automatically as per the strictliability theory, socio-economic offences could be fastened on theaccused. There is no specific defence contemplated in the special lawthat by pointing out certain deficiencies, difficulties on the partof the accused, he could wriggle out of his criminal liability.Hence I am of the considered opinion that the plea of the accusedcannot be countenanced and both the Courts below have rightlyrejected the same.14. The learned counsel for the revision petitioner would try topress into service for the first time the plea that the offencecharged as against the accused virtually comes under Section 7(1)(a)(i) and not under Section 7(1)(a)(ii). According to him, even thedetention already undergone by him during investigation issufficient, but I am of the view that it could not be set off and hecould not be let off. I have also carefully considered thesubmission made by the learned counsel for the revision petitionerand found that the violation is not relating to anything contemplatedunder Sections (h) and (i) of Section 3 of the Essential CommoditiesAct, but it is coming under other sub clauses of Section 3 of the https://hcservices.ecourts.gov.in/hcservices/ Essential Commodities Act. Here the specific charge is that theaccused manipulated the stock of kerosene entrusted to him and insuch a case, the appellate Court has correctly imposed three monthsimprisonment along with fine warranting no interference by thisCourt. Accordingly, I could see no merit in this criminal revisioncase, and it is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. The Principal Sessions Judge, Pondicherry2. The Judicial Magistrate No.1, Pondicherry3. The Chief Judicial Magistrate, Pondicherry.4. The Public Prosecutor, Madras.5. The Station House Officer, Food Cell Police Station, Pondicherry1 cc To Mr.V.Parthiban, Advocate, SR.32174Crl.R.C.No.706 of 2006VSV(CO)SRA(14/08/2009)