Illegal Sale And Possession Of Diesel: Prosecution Not Maintainable Under EC Act In The Absence Of Notification Prohibiting It: J And K And L High Court

The Jammu and Kashmir and Ladakh High Court recently remarked that when no order/notification as envisaged under section 3 of Essential Commodities Act prohibiting the possession of a particular quantity of diesel was placed on record, the petitioner could not be prosecuted for the commission of the said offence and convicted under section 7 of the Essential Commodities Act.

The allegation against the petitioner was that on May 31, 2008, the SHO, Police Station Jhajjar Kotli who was on the patrolling duty received information from the reliable sources that the petitioner was indulging in illegal sale of diesel and had it in his possession in his Karyana shop. The SHO along with police party raided the shop of the petitioner and five plastic gallons containing about 100 liters of diesel were found.

After completion of the investigation, the Investigating Officer proved the offences under sections 3/7 of the Essential Commodities Act against the petitioner and thereafter the challan was filed. 

As the respondent authorities failed to place on record any notification/order under section 3 of the Essential Commodities Act, the petitioner was discharged of the said offences by the trial court in 2011.

The revision petition against the said order of the trial court was allowed and the revisional Court set aside the said order and directed the trial court to frame charges against the petitioner. The revisional court also observed that the trial court should have granted some time to the prosecution to trace the said notification.

A petition was filed before the Court primarily on the ground that there was no order that had been contravened by the petitioner and when the prosecution had not placed on record any such order, the petitioner could not be prosecuted for the commission of the said offence and convicted.

Advocate Dheeraj Choudhary submitted that even despite repeated opportunities, no such notification/order was placed on record the violation of which was claimed by the respondent, to have been made by the petitioner.

Court's findings:

The Bench found that the said notification was neither submitted before the trial court nor before the revisional court and also no such notification/order purported to be issued under section 3 of the Essential Commodities Act, was placed on record before it despite number of opportunities.

Justice Rajnesh Oswal remarked that a trial court could sift through the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of the offences or not, but at the same time, it cannot conduct a mini trial to find out as to whether the accused can be convicted for a particular offence or not.

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

A perusal of Sections 3 and 7 also revealed that there must be a notification/order issued under section 3, violation of which entails the prosecution and if offence is proved, then subsequent conviction under section 7 of the Essential Commodities Act would happen.

Also, Justice Oswal noted that for launching prosecution under section 3/7 of the said Act, the Investigating Officer was required to place on record a valid notification/order, held the Supreme Court in Prakash Babu Raghuvanshi v. State of Madhya Pradesh.

Thus, when no notification prohibiting the possession of particular quantity of diesel was placed on record, the petitioner could not be prosecuted and convicted under section 7. 

"Needless to say that the present 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. This 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."

Accordingly, the petition was allowed and order passed by the revisional court was set aside and the order passed by the trial court was upheld. 

AAG Aseem Sawhney appeared for the respondent state.

Case Title: Surinder Singh v. State of J&K

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