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2008 DIGILAW 3120 (MAD)

S. Mahendran v. State by the Inspector of Police

2008-08-27

K.N.BASHA

body2008
Judgment :- The petitioner has been arrayed as A-1 out of two accused and he has come forward with this petition seeking for the relief of quashing the proceedings in C.C.No.1945 of 2005 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur for the alleged offence under section 7 of the Essential Commodities Act for contravention of Clause 14 of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973. 2. Mr. B. Kumar, learned senior counsel appearing for the petitioner mainly contended that for initiating the proceeding for the contravention of clause 14 of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973 (hereinafter referred to as "order") and consequentially for the offence under section 7 of the Essential Commodities Act, there is specific provision under clause 25 of the order contemplating previous sanction for prosecution. 3. It is contended by the learned senior counsel that in the instant case though the prosecution has obtained sanction, the same was not obtained from a competent authority as contemplated under clause 25 of the order. 4. It is submitted by the learned senior counsel that in the instant case, sanction was accorded by the Deputy Commissioner of Civil Supplies and Consumer Protection Department, North City, Chennai, but he was not empowered or competent to accord such sanction as contemplated under 25 of the order. The learned senior counsel also pointed out the specific provision under clause 25 of the order and submitted that it is only the Commissioner or the Collector concerned or such other officer as may be authorized by the Collector under Clause 1-A and section 2 of the Essential Commodities Act 1955 to perform the functions and exercise the powers of the Collector under the said Act. The learned senior counsel would therefore submit that it is only the Commissioner or the Collector or any such officer as may be authorized by the Collector alone is empowered to sanction prosecution. It is pointed out by the learned senior counsel that as per the additional counter affidavit filed by the Inspector of Police, Civil Supplied CID, it is specifically stated at paragraph 5 that as per the orders of the Collector of Madras in Notification No.o.VI(2) 616/77 dated 28.03.1977, the Deputy Commissioner of Civil Supplies has granted sanction on 15. 2005 to prosecute the accused. 2005 to prosecute the accused. It is further submitted that in the very same paragraph it is stated that the Deputy Commissioner of civil Supply has granted sanction on 16.05.2005 in this case to prosecute the petitioner/accused and another accused who has been arrayed as A-2 and the District Collectors of Chennai and Chengleput have delegated the powers under section 2(a) of the Essential Commodities Act to Deputy Commissioner of Civil Supplies to perform the functions and exercise the powers of the Collector under section 6(A) and 6(B) of the Essential Commodities Act. Therefore, it is contended by the learned senior counsel that the power of Collectors were delegated only in respect of provisions under section 6(A) and 6(B) and 6(A) is for confiscation and 6(B) is for issuing show cause notice in respect of confiscation and both the sections are nothing to do for according sanction to initiate prosecution. Therefore, it is contended that sanction was accorded in this case by the incompetent officer and he has no jurisdiction or power to accord sanction for prosecution in this case and on that sole ground the proceeding is liable to be quashed. 5. Per contra, learned Additional Public Prosecutor contended that there is no infirmity in the sanction accorded for prosecuting the petitioner herein. It is submitted that the Deputy Commissioner of Civil Supplies, North City, City has been empowered to accord sanction as per the delegation of powers by the District Collectors of Chennai and Chengleput. It is further contended that the petitioner cannot seek the relief of quashing the proceeding on the ground of certain infirmity in the sanction order and It is open to the petitioner to raise such points at the time of trial. 6. I have carefully considered the rival contentions put forward by either side and also perused the entire materials available on record including the sanction order and other relevant provisions. 7. It is seen that the petitioner has been arrayed as A-1 out of two accused and he has been implicated for the alleged offences as stated above. The only point raised in this matter is to the effect of according sanction to initiate prosecution against the petitioner by an incompetent authority. 7. It is seen that the petitioner has been arrayed as A-1 out of two accused and he has been implicated for the alleged offences as stated above. The only point raised in this matter is to the effect of according sanction to initiate prosecution against the petitioner by an incompetent authority. It is also seen that for contravention of above said provision and the offence said to have been committed by the accused/petitioner, a previous sanction is necessary as per clause 25 of the order. Clause 25 of the orders reads hereunder: "25. Prevous sanction for prosecution: No person shall be prosecuted for contravention, attempt to contravene, or abet the contravention of any of the provisions of this order, or of the terms and conditions of the licence or registration certificate, issued to him under this order or the terms and conditions applicable to authorization issued by the Government or the Licensing authority or the authorized officer except with the previous sanction of the Commissioner or the Collector concerned or such other officer as may be authorized by the Collector under clause (i.a.) of section 2 of the Essential Commodities Act 1955 (Central Act 10 of 1955) to perform the functions and exercise the powers of the Collector under the said Act. .8. A reading of the above said provisions makes it crystal clear that it is only the Commissioner or the Collector concerned or such other officer as may be authorized by the Collector alone is empowered or authorized to accord sanction to initiate prosecution. As far as the instant case is concerned, it is not disputed by the learned Additional Public Prosecutor that the sanction was accorded by the Deputy Commissioner of civil Supplies and Consumer Protection, North City, Chennai and as such, it is necessary for the Collector to authorize such officer to accord sanction. It is pertinent to be noted that the additional counter filed by the respondent herein at paragraph NO.5, it is stated as here under: ."5. It is further submitted that the sanction for prosecution was given by Deputy Commissioner of Civil Supplies and consumer Protection, North city, Chennai. As per the orders of the Collector of Madras in Notification No.o.VI(2)/616/77 dated 28th March 1977, the Deputy Commissioner, Civil Supplies is the Competent Authority to grant sanction for prosecution of the accused. It is further submitted that the sanction for prosecution was given by Deputy Commissioner of Civil Supplies and consumer Protection, North city, Chennai. As per the orders of the Collector of Madras in Notification No.o.VI(2)/616/77 dated 28th March 1977, the Deputy Commissioner, Civil Supplies is the Competent Authority to grant sanction for prosecution of the accused. In this case, the Deputy Commission of Civil Supplies has granted sanction on 15. 2005 to prosecute the accused Mahendran and also one Ravi. The District Collectors of Chennai and Chengleput have delegated the powers under section 2(2) of the Essential Commodities Act to Deputy Commissioner of Civil Supplies and perform the functions and exercise the power of the Collector under sections 6(A) and 6(B) of the Essential Commodities Act." 9. A reading of the above said paragraph of the additional counter filed by the respondent clearly shows that the Deputy Commissioner of Civil Supplies has been authorized by the District Collectors of Chennai and Chengleput as per the delegation of powers to exercise the powers of the Collector only under section 6(A) and 6(B)of the Essential Commodities Act. It is pertinent to be noted that 6(A) deals in respect of confiscation and 6(B) deals in respect of issuing show cause notice for confiscation and as such both the provisions are nothing to do with the power of according sanction to initiate prosecution. .10. Therefore, it is crystal clear that the officer accorded sanction in the instant case to prosecute the petitioners is not competent. It is also relevant to refer the decision rendered by the Honble Supreme Court of India in MANSUKHLAL VITHALDAS CHAUHAN VS. STATE OF GUJARAT reported in ( 1997 (7) SCC 622 ). In that decision, the Apex Court has held that, ."The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty." 11. In yet another decision in STATE OF GOA VS.BABU THOMAS reported in (2005) 8 SCC 130 ), the Honble Apex Court while dealing with the provision under the Prevention of Corruption Act has held as follows: "12. As already noticed, the sanction order is not a mere irregularity, error or omission. In yet another decision in STATE OF GOA VS.BABU THOMAS reported in (2005) 8 SCC 130 ), the Honble Apex Court while dealing with the provision under the Prevention of Corruption Act has held as follows: "12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2-1-1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7-9-1997 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14-9-1994, which is bad. The cognizance was taken by the Special Judge on 29-5-1995. Therefore, when the Special Judge took cognizance on 29-5-1995, there was no sanction order under the law authorizing him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction." 12. Therefore, in view of the above well settled principle of law laid down by the Honble Apex Court, the sanction was accorded by an incompetent authority in this case and thereby this fundamental error invalidates the cognizance of the case itself as without jurisdiction. Therefore, this Court is left with the inevitable conclusion to quash the proceedings and accordingly, the proceedings pending in C.C.No.1945 of 2005 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur, is hereby quashed. It is open to the respondent to obtain sanction in accordance with law if the respondent desires so and proceed with the matter. This petition is ordered accordingly. Consequently, connected M.P. is closed.