MATTER IN RELATION TO THE ESSENTIAL COMMODITIES ACT, 1955(“ECA”) AND CONNECTED ORDINANCE AND RULES REFERRED IN FIR AND CHARGESHEET
Section 4 in The Code
Of Criminal Procedure, 1973
4. Trial of offences
under the Indian Penal Code and other laws.
(1) All offences under the Indian Penal Code (45 of 1860 ) shall be
investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating the manner or place
of investigating, inquiring into, trying or otherwise dealing with such
offences.
Pursuant to s/4(2) [offence
other than IPC (in present case it is ECA)] and S/227 [Discharge by Session
Court) of CrPC, it is pertinent to note that based on below analysis of law and
facts and the documents thereof relied upon, the alleged contravention under S/3
of ECA cannot be made out:-
A. DEFECTS IN THE FIR, CHARGE SHEET AND
SUPPORTING STATEMENTS:
a. Accused No.1 is not involved in business
of rationing of essential goods under ECA.
b. Accused no. 1 was a flying squad
non-governmental member nominated by Ministry, so the occupation mentioned is
incorrect under the FIR and so not in business rationing of essential goods
under ECA. (Refer Page no. 88 and 89 for Identity Card and appointment letter
issued by relevant ministry)
c. Accused no. 1 was unwell on the day of
inspection/raid i.e. 14th March 2016 by Rationing Officer (Refer
Page no. 176)
d. Accused no. 1 present and verified
address mentioned in FIR is incorrect and false as he was staying then at 503,
Ganesh darshan, Malahabar Hill Road, Mulund Colony, Mulund West, Mumbai – 82
and no verification has been done.
e. The whole criminal prosecution was malicious
in nature and based on false facts because Accused no. 1 is not nephew
of Accused no. 2. The Statement made by Informant/Complainant and other
witnesses contradicts while though are identical statement made without keeping
in mind that during the panchnama and inspection time most of the time the
Complainant and other witnesses were at their residence which can be easily
traceable through location verification of their mobile numbers.
f. The name of panch to be examined are missing
in police say and particulars of witnesses to be examined have some name of
panch who were not present on the day of panchnama and their statement also
clearly states a date different than the actual inspection. All the panch are
not mentioned making the requirement of neutral and unbiased panch is not been
fulfilled. There statement made for the panch are identical and is made to
merely implicit the accused instead of speaking about how it came to be panch
and reason for their absence in work place and how they happened to be at place
of inspection. The neighbouring shops are not considered as witness but witness
preferred by rationing officer/witness are called and made part of the
submission by prosecution.
g. MISCALCUALTION AND FACTUAL ERROR: The excess goods noted in the
inspection report is result of miscalculation and unreliable tools used to
arrive at a figure of excess kerosine and grains(refer Page no. 110 for wrong
working in the stock ledger). Furthermore, such incorrect facts and miscalculation
is prima facie seen on the documents submitted by prosecution
i. Refer page no. 31 Panch statement vs
FIR describing the property seized and recovered does not match;
ii. The actual stock is shown as property
seized and recovered in FIR on 15th March 2016 however, on page no.
40 supurdnama/handover of possession of property shows that given to Accused
no. 1 on 14th March 2016, so statement contradicts property is
seized with police on 15th Mar 2016 and also returned one day prior.
iii. Similarly, miscalculation is found in
stock book leading to excess stock shown(refer Page 110);
iv. Further, knowing that rationing of
essential goods there every chance of difference in weight and measurement,
hence a relaxation of 1% is always permitted to each rationing office. By
virtue of which, no rationing shop can explain the reason of excess or deficit
because of the nature of work and that is why, certain exemption in practice are
permitted like every bag has 500 to 750gm weight of bags alone, so the gross
weight may vary in each bags of grains. During the inspection, it is duty of
the officer to show deduction made for the same while arriving at present stock,
in excess or deficit, however inspection report does not depict the same in the
inspection report or stock book.
v. Further any wastage that gathered on
daily basis or spoiled goods remaining in the shop are also not accounted, as
the same is either to be disposed-off or thrown for various reasons like cannot
sell the same to any ration card holder;
vi. Further, measurement tools for
measuring kerosine in tank shape container requires tools certified by legal
metrology department and which was not used in the present inspection. To
design or shape of tank container mentioned hence the calculation cannot be
relied and so on.
vii. In the FIR and all the statement of
prosecution, depicts the whole stock as for black-marketing and the same is
shown as property seized/recovered in witness or panch statement to exaggerate
the weight and measurement. The market price shown is beyond the normal market
price to increase the demand value.
viii.
General practice is after the inspection, show cause notice of
difference and give opportunity to explain but as the inspection was for
malafide reason and extort money asking Accused no. 1 to negotiate for the
rationing officer with license holder and as Accused no. 1 refused to do so,
hence all the expedite action and falsely implicated Accused no. 1.
ix. Every miscalculation was to be first to
be fully verified by Rationing Officer and if any contravention found then take
action as per limits specified in the GR(as explained hereinbelow). The FIR was
to be filed with police only as per the GR however Rationing Authority intended
to maliciously prosecute hence skipped the whole process and filed FIR against
Accused no. 1.
B. ALL DOCUMENTS SUBMITTED, ORDERS, GRs AND
INSPECTION REPORT ARE DEEMED TO BE ISSUED UNDER ECA AND ARE TO BE CONSIDERED AS
EVIDENCE UNDER INDIAN EVIDENCE ACT 1872- Pursuant to S.13 of ECA[Presumption as to
orders], when an order purports to have been made and signed by an
authority, in exercise of any power conferred by or under the ECA, a Court
shall presume that such order was so made by that authority within the meaning
of Indian Evidence Act 1872, accordingly the below Govt Resolution(GR) has
sanctity of law and valid and enforceable under ECA.
a. Page 76 – Application for compounding - The complainant / Informant Ms. Sonali
Dhandarnekar has filed before magistrate 27th Court, stating that there
is no misappropriation at all been done by accused and agreed to compound the
same. The informant is public servant on whose report in writing the FIR was
filed however she has submitted to court that no offence is made out and
misappropriation is not happened so the prosecution witness/complainant was
sole base of the FIR and the same is been withdrawn hence legally no cognizance
of offence can be taken as per section
11 of ECA, as the report writing is deemed to be withdrawn. [“Cognizance of
offences.―No Court shall take cognizance of any offence punishable under this
Act except on a report in writing of the facts constituting such offence made
by a person who is a public servant as defined in section 21 of the Indian
Penal Code (45 of I860)”]. SOLELY BASED ON STATEMENT OF “NO
OFFENCE/MISAPPROPRIATION” BY THE PROSECUTION COMPLAINANT, THE PROSECUTION
CANNOT SUCCEED UNDER THIS MATTER.
b. Page 84- Order by Ministry, makes the
offence groundless – As per the said Order dated 20th July 2016 by Shri Girish
Bapat (Minister of Food, citizen provision and consumer protection), appellate
authority has quashed the suspension and
demand notice dated 23rd March 2016, sole base of the
misappropriation and black-marketing. Appointed investigation officer was asked
to investigate the bills of total Rs. 41,475/-which was shown as sole evidence
of black-marketing under the FIR and Chargesheet. However, the home visit
report (i.e. below clean chit order) has clearly stated that no offence is made
out against accused. Ministry order had also levied fine for non-compliance of
license terms and appropriate fine was levied and recovered from Accused no. 2.
c. Page 87 - Clean Chit Order by investigating Rationing Officer appointed
by the Ministry for home visit of all 110 bills and a report dated 7th
Sept 2016 was submitted Rationing Authority giving clean chit to Accused and
stated no contravention committed by Accused.
d. Accordingly, there is no contravention
or offence committed under ECA by Accused no. 1 because no misappropriation or
offence is made out as per the Rationing Authority and in any other reports.
e. From abovesaid reasons, the discharge
of accused no. 1 is sufficient and well-reasoned to be discharged.
C. However, if for any reason, the court
is unsatisfied then analysing the GR issued by Rationing Authority(RA) in
related to offences under ECA and condition thereof as to when FIR to be filed
can be studied.
a. GR dated 12th Nov 1991
relevant extract enclosed herewith whereby 3 types of offences are identified
Simple, Medium and Severe. As per GR, only in case of Severe offences, RA can
file FIR provided the demand is beyond Rs. 10000/-, however the
present case was for difference in stock ledger amounting to approx. Rs. 1845/-.
The offence if argued as alleged falls within “Medium” category offences under
the GR and only remedy is to pay for the same.
b. Circular / Patrak – Further details on
filing FIR for severe offence with value above 10000/- [Severe category of offence was
further divided into below 10000Rs and above 10000Rs and above 10000RS as per circular/patrak,
when FIR is required to be filed is clarified]
c. Offence s/6 r/w s/11 [excerpts
hereunder] requires compliant in writing from Rationing Authority and clean
chit is clear case of withdrawal by defacto complainant hence the complaint is
null and void ab initio hence cannot be relied upon by prosecution and
this hon’ble court to make out offence against accused no. 1
d. s/10C of ECA. Presumption of culpable
mental state– (2) - a fact is said to be proved only when the court believes it
to exist beyond reasonable doubt and not merely when its existence is established
by a preponderance of probability
e. S/209, S/193 and 194 of CrPC – Session
court has jurisdiction to try this case pursuant to these provisions, if any
objection on jurisdiction. [193. Cognizance of offences by Courts of Session. Except as
otherwise expressly provided by this Code or by any other law for the time
being in force, no Court of Session shall take cognizance of any offence as a
Court of original jurisdiction unless the case has been committed to it by a
Magistrate under this Code.] [194. Additional and Assistant Sessions Judges to try cases made
over to them. An Additional Sessions Judge or Assistant Sessions Judge shall
try such cases as the Sessions Judge of the division may, by general or special
order, make over to him for trial or as the High Court may, by special order,
direct him to try.]
D. Accused no.1 is not licensor of the
ration office and has no direct involvement with benefits or black-marketing
done by Accused no. 2, as alleged. Accused no. 1 was called to the place of
raid and arrested for no offence due to vengeance as he was an activist and
flying squad member helping crime detection and eradication of black-marketing
within segment of rationing distribution racket.
E. Pursuant to aforesaid justification and
for speedy trial either through this hon’ble session court by way of discharge
u/s 227 of CrPC or through Lokadalat considering the above GR r/w Circular/Patrak
r/w Clean Chit Order and Ministry Order as mentioned above. In such
circumstances, the defacto complainant lacks authority to stand as
informant/prosecution witness in prosecution case.
F. Further, RA/Prosecution has no locus
standi as against the Accused no. 1(Stranger/third person) and all action by
the prosecution can at the most be against the licence holder (i.e. Accused no.
2 under the FIR) not against accused no. 1 so by virtue of no ground to
prosecute or if permitter allowing compounding of offence under ECA, to meet
the ends of justice.
G. In view of the above, accused no. 1
(shailesh gori), who was wrongly implicated in this matter, cannot be
prosecuted under the same complaint or tried for offence not committed under
ECA.
H. RELEVANT CASE LAWS, ENCLOSED BY VIRTUE
OF WHICH THIS COURT HAS SUFFICIENT POWER TO DISCHARGE ACCUSED NO. 1 FROM ALLEGATIONS
OF CONTRAVENTION OF OFFENCES, TO MEET THE ENDS OF JUSTICE.
I. Excerpts of other relevant
provisions of ECA
·
s/6
of ECA. Effect of orders inconsistent with other enactments.―Any order made
under section 3 shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act or any instrument
having effect by virtue of any enactment other than this Act.
·
S/11
of ECA. Cognizance of offences.―No Court shall take cognizance of any offence
punishable under this Act except on a report in writing of the facts
constituting such offence made by a person who is a public servant as defined
in section 21 of the Indian Penal Code (45 of I860) 5 [or any person aggrieved
or any recognised consumer association, whether such person is a member of that
association or not]. 6 [Explanation.―For the purposes of this section and
section 12AA, “recognised consumer association” means a voluntary consumer
association registered under the Companies Act, 1956 (1 of 1956) or any other law
for the time being in force.]
·
s/12
of ECA. Special provision regarding fine.―Notwithstanding anything contained in
section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be
lawful for any Metropolitan Magistrate, or any Judicial Magistrate of the first
class specially empowered by the State Government in this behalf, to pass a
sentence of fine exceeding five thousand rupees on any person convicted of
contravening any order made under section 3.
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