Courts Update J&K HC says a person cannot be convicted under...

J&K HC says a person cannot be convicted under an Act when there is no notification under that Act prohibiting the possession of a particular quantity of diesel

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Jammu & Kashmir Sept 3(ILNS): The Jammu and Kashmir and Ladakh High Court on September 01, set aside the revisional Court order dated February 15, 2011, and upheld passed the trial court order, while observing that the Petitioner could not be prosecuted for the commission of the offense and convicted under section 7 of the Essential Commodities Act when no order/notification under this Act prohibiting the possession of a particular quantity of diesel was placed on record.

A Single Bench comprised of Justice Rajnesh Oswal passed this order while hearing a petition filed by Surinder Singh.

The Petition has been filed under section 561-A Cr. P.C. for quashing the order dated October 08, 2012, passed by the Principal Sessions Judge, Jammu by virtue of which order dated February 15, 2011, passed by the Chief Judicial Magistrate, Jammu discharging the Petitioner, was set aside.

The Petition has been filed primarily on the ground that there is no order as envisaged under section 3 of Essential Commodities Act that has been contravened by him and further when the prosecution has not placed on record any such order, the Petitioner cannot be prosecuted for the commission of the said offense and convicted under section 7 of the Essential Commodities Act.

Dheeraj Choudhary, Counsel for the Petitioner argued that no order within the meaning of section 3 of Essential Commodities Act was placed on record by the Investigating Officer along with the challan and that is why the Petitioner was discharged for the commission of an offense under sections 3/7 of the Essential Commodities Act.

The petitioner alleged that the revisional Court illegally set aside the order passed by the trial Court and observed that the trial court should have granted further time to the prosecution to place on record such order.

He further submitted that even despite repeated opportunities, no such notification/order has been placed on record the violation of which has been claimed by the respondent, to have been made by the Petitioner.

Aseem Sawhney, AAG submitted that the revisional Court has rightly passed the order dated October 08, 2012, and there is no illegality in the order.

The allegation against the Petitioner is that on May 31, 2008, SHO, Police Station Jhajjar Kotli along with the police party was on patrolling duty in a Government vehicle at ‘Kah Fota’ area, and during patrolling, SHO received information from reliable sources that the Petitioner is indulging in the illegal sale of diesel and is earning undue profits and that the Petitioner was having in his possession diesel in his Karyana shop.

On the basis of said information, the SHO along with a police party raided the shop and found five plastic gallons containing about 100 liters of diesel there. The Prosecution alleged that by keeping 100 liters of diesel for illegal sale in his shop, the petitioner has committed an offense under sections 3/7 of the Essential Commodities Act.

Thereafter, an FIR under sections 3/7 of the Essential Commodities Act was registered at the Police Station, Jhajjar Kotli. During the investigation, five plastic gallons of 20 liters capacity containing about 100 liters of diesel were seized. After completion of the investigation, the IO (Investigating Officer) filed a challan against the petitioner.

As the respondent did not place on record any notification/order under section 3 of the Essential Commodities Act, so the Trial Court discharged the Petitioner on February 15, 2011 for the said offenses.

The respondent filed a revision Petition against the trial Court order. The Revision Court on October 08, 2012, set aside the said order and directed the trial court to frame charges against the Petitioner for the commission of offenses under sections 3/7 of the Essential Commodities Act.

The Revision Court also observed that the trial court should have granted some time to the prosecution to trace the said notification.

The Court observed that it is clear that the notification was neither submitted before the trial Court nor before the Revision Court and also no such notification/order purported to be issued under section 3 of the Essential Commodities Act, has been placed on record before the Court despite a number of opportunities.

A perusal of both the provisions reveals that there must be a notification/order issued under section 3 of the Essential Commodities Act, violation of which entails the prosecution, and if the offense is proved, then subsequent conviction under section 7 of the Essential Commodities Act. In this case, no such notification has been placed on record.

The Court stated that the charge can be framed against the accused even when there is a strong suspicion about the commission of the offense by the accused and at the same time, the trial court is not expected to merely act as a post office and frame the charge just because challan for the commission of a particular offense has been filed against the accused.

The trial Court can sift the evidence brought on record by the prosecution so as to find out whether the unrebutted evidence placed on record fulfills the ingredients of the offenses or not. But at the same time, the trial court cannot conduct a mini-trial to find out as to whether the accused can be convicted for a particular offense or not.

Thus, when no notification/order under section 3 of the Essential Commodities Act prohibiting the possession of a particular quantity of diesel has been placed on record, the petitioner cannot be prosecuted and convicted under section 7 of the Essential Commodities Act, the Court observed.

The Court further observed that needless to say, that the petition has remained pending for 9 years and during this period as well, the respondent has not been able to place on record any such notification/order issued under section 3 of Essential Commodities Act. The Court is of the considered view that in absence of such notification, the continuance of the proceedings under sections 3/7 of the Essential Commodities Act, shall be nothing but an abuse of process of law.

In view of the above, the Petition is allowed and an order dated October 08, 2012, passed by the Revision Court is set aside and the order dated February 15, 2011, passed by the trial court is upheld, the Court ordered./ILNS/AP/SNG

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