IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 820 of 2009()
1. O.K.BALAN,S/O.CHEKKUTTY,CHEROTH HOUSE,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE,BALUSSERY
... Respondent
2. THE TALUK SUPPLY OFFICER,KOZHIKODE.
3. STATE REP; BY P.PROSECUTOR,HIGH COURT OF
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/03/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.820 OF 2009
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Dated 1st March 2010
O R D E R
Petitioner is the first accused
in Crime 547/2008 of Balussery Police
Station registered for the offences
punishable under section 16 of Kerala
Kerosene Control Order read with section 3
and 7 (1)(a) of Essential Commodities Act.
Petitioner is the authorised retail
distributor of ration shop No.214 of
Koilandy Taluk. On the night of 4.9.2008
at about 11 p.m, the public restrained
the second accused, while he was carrying a
30 litre can containing kerosene which is
to be supplied from the ration shop, on the
allegation that it is being shifted for
sale in the black market. On getting
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information over phone, Taluk Supply Officer
directed the Rationing Inspector to proceed
to the spot. He went there and seized the
can containing 30 litres of kerosene and
prepared sample of kerosene and crime
No.547/2008 of Balussery police station was
registered under Sections 3 and 7(1)(a)(ii)
of Essential Commodities Act. Petition is
filed under Section 482 of Code of Criminal
Procedure to quash the proceedings contending
that Taluk Supply Officer has not taken any
sample from the barrel which contains
kerosene in the presence of the petitioner
and though proceedings were initiated to
cancel the license by Annexure-II order
dated 28/2/2009, that proceedings was dropped
on realisation of Rs.11,220/-, being the
value of the kerosene and rice found in
shortage and in such circumstances,
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continuation of the proceedings is only an
abuse of process of the court.
2. Learned counsel appearing for the
petitioner and learned Public Prosecutor were
heard.
3. Argument of the learned counsel
appearing for the petitioner is that kerosene
seized by the Rationing Inspector was not
being transported for sale in the black
market as alleged and instead as there was
leak in the barrel, it was being shifted to
the can and therefore, the offence is not
attracted. Learned Public Prosecutor made
available case diary which reveals that
general public finding that second accused is
removing a 30 litres can containing kerosene
stopped him, as purpose of transport was to
sell the same in black market. In such
circumstances, question whether kerosene from
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the barrel was shifted to the can due to
leakage as canvassed by the petitioner or was
removed out of the ration shop at 11 p.m for
the purpose of sale in the black market
cannot be decided in this petition filed
under Section 482 of Code of Criminal
Procedure. As the matter is for
investigation, this is also an aspect which
is to be considered by the investigation
officer. I find no reason to quash the
proceedings as claimed by the petitioner
based on Annexure-II order of the Taluk
Supply Officer. By Annexure-II order Taluk
Supply Officer has realised penalty from the
security deposit made by the petitioner,
being value of kerosene and rice found in
shortage, on verification on the very next
day. In such circumstances, based on
Annexure-II order also case cannot be
Crmc 820/09 5
quashed. Petitioner is at liberty to
challenge the final order, if it goes against
him.
4. Learned counsel then submitted
that there may be direction to the Magistrate
to release the petitioner on his surrender on
the same day. When an accused surrenders and
files an application for bail, Magistrate is
expected to pass orders in the application
without delay. I find no reason to believe
that Magistrate is unaware of the provisions
of law or the decisions of the court or that
the Magistrate will not act in accordance
with law. Hence no direction is warranted.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
