Ananda Kumar JaIn Vs. State of Orissa - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2. for better appreciation, the prosecution case may succinctly be stated thus :m/s. from all these facts and circumstances the complainant being satisfied that 12,000 litres of high spped diesel had been unauthorisedly sold, launched prosecution against the accused under sections 7 and 9 of the act to stand his trial for violation of clause 5 read with clause 6 of the order. so on consideration of the prosecution allegations coupled with circumstances and in view of section 24 of the act, i am of the considered opinion that the prosecution launched against the accused is legally maintainable and the special judge-cum-sessions judge, kalahandi is well within his jurisdiction to take cognizance of the offence since according to the prosecution the lorry which was carrying the high speed diesel had entered inside the district of kalahandi.orderr.k. dash, j.1. the petitioner (hereinafter referred to as 'accused') facing criminal prosecution in ii(c) c. c. no. 2 of 1991 under sections 7 and 9 of the essential commodities act (for short, 'the act') for contravention of clause 6 read with clause 8 (a) (ii) and (vi) and clause 6 of the motor spirit and high speed diesel (prevention of malpractices in supply and distribution) order, 1990 (hereinafter referred to as 'the order') has filed the present criminal misc. case under section 488, cr. p. c. for quashing the proceeding pending before the special judge-cum-sessions judge, nalahandi, bhawanipatna.2. for better appreciation, the prosecution case may succinctly be stated thus : m/s. janta service station, bhawnipatna is a licensed dealer in petroleum products of bharat petroleum corporation limited having licence no. 6/80 issued by the collector, kalahandi. the accused on behalf of the said firm alleged to have sold one tank load of 12,000 litres of high speed diesel on 2-3-1991 in black market after lifting the same from visakhapatnam depot. complainant sarat chandra singh sammant, assistant civil supplies officer made an enquiry into the incident, in course which he verified the stock register of the firm and found that no stock of high speed diesel had been received in the service station in between 27-1-1991 and 3-3-1991. to ascertain correctness of the entry in the stock register, request was made to senior divisional manager, bharat petroleum corporation, bhubaneswer, to supply the information as to whether m/s. janta service station had lifted 12,000 litres of high speed diesel on 1/2-2-91. responding to the request, he confirmed that the dealer had lifted the aforesaid quantity of high speed diesel on 1-2-91 from visakhapatnam depot. on receipt of such information, stock register of petrol and diesel of the firm maintained from 1-4-90 to 20-2-91 was seized. thereafter, the marketing inspector inspected visakhapatnam depot to enquire from the despatch unit of bharat petroleum corporation about lifting of 12,000 litres of high speed diesel by the firm. on enquiry it came to light that firm by its own tank lorry bearing registration no. cem (sic) 3785 had lifted 12,000 litres of high speed diesel on 1-8-91 and left visakhapatnam on the very day. the further case of the prosecution is that the aforesaid tank lorry instead of travelling to bhawanipatra through the usual route came to kalahandi via (sic) sonki unified check-gate. from all these facts and circumstances the complainant being satisfied that 12,000 litres of high spped diesel had been unauthorisedly sold, launched prosecution against the accused under sections 7 and 9 of the act to stand his trial for violation of clause 5 read with clause 6 of the order.3. learned counsel appearing for the accused raised two fold conditions :(i) that there having no specific allegation in the prosecution report that 12,000 litres of high speed diesel has been sold within the district of kalahandi, the special judge-cum-sessions, judge, kalahandi, bhawanipatra, lacks jurisdiction to try the case; and(ii) that materials are lacking that the aforesaid quantity of high speed diesel had been unauthorisedly sold by the accused and therefore, filing of prosecutetion against him under sections 7 and 8 of the act was unwarranted.learned additional government advocate submits that a scrutiny of the materials on record will prima facie show that the accused has committed the offence as alleged within the district of kalahandi and so there is no justifiable ground to quash the proceeding in exercise of inherent power.4. sub-clause (e) of clause 2 of the order defines 'dealer'. according to the said definition 'dealer' means a person appointed by an oil company to purchase, receive, store and sell motor spirit and high speed diesel oil whether or not in conjunction with any other business, and shall include his representatives, employees or agents. the word 'malpractices' defined in sub-clause (a) includes the following acts of omission and commission in respect of licence or other document shall be on him. so on consideration of the prosecution allegations coupled with circumstances and in view of section 24 of the act, i am of the considered opinion that the prosecution launched against the accused is legally maintainable and the special judge-cum-sessions judge, kalahandi is well within his jurisdiction to take cognizance of the offence since according to the prosecution the lorry which was carrying the high speed diesel had entered inside the district of kalahandi.5. before parting with, i may observe that the accused had earlier approached this court in criminal misc. case no. 380 of 1991 to quash the proceedings. upon hearing the court rejected the prayer and dismissed the case. although the accused in his petition has stated that the matter was earlier before this court in the aforesaid criminal misc. case, but he has not specifically mentioned that the reference self-same prayer which has been made in the present proceeding was rejected. from the above it appears that the accused wants to stall the proceeding by approaching this court time and again. such an attempt should be depricated or also there would be no end to litigation. in view of discussions made above, i hold that this is a frivolous application filed by the accused seeking to quash the proceeding.6. in the result, the criminal misc. case is dismissed. the learned trial court is directed to take up expeditious hearing and dispose of the case within four months. the record reveals that the accused has not yet entered appearance. he is, therefore, directed to appear before the trial court on 1-11-95 to receive further direction in the matter. the lower court record be sent immediately.it may be stated that any observation made in this order will not influence the trial court while disposing of the case on merit.

Judgment:
ORDER

R.K. Dash, J.

1. The petitioner (hereinafter referred to as 'accused') facing criminal prosecution in II(C) C. C. No. 2 of 1991 under Sections 7 and 9 of the Essential Commodities Act (for short, 'the Act') for contravention of Clause 6 read with Clause 8 (a) (ii) and (vi) and Clause 6 of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 (hereinafter referred to as 'the order') has filed the present Criminal Misc. Case under Section 488, Cr. P. C. for quashing the proceeding pending before the Special Judge-cum-Sessions Judge, Nalahandi, Bhawanipatna.

2. For better appreciation, the prosecution case may succinctly be stated thus : M/s. Janta Service Station, Bhawnipatna is a licensed dealer in petroleum products of Bharat Petroleum Corporation Limited having licence No. 6/80 issued by the Collector, Kalahandi. The accused on behalf of the said firm alleged to have sold one tank load of 12,000 litres of high speed diesel on 2-3-1991 in black market after lifting the same from Visakhapatnam Depot. Complainant Sarat Chandra Singh Sammant, Assistant Civil Supplies Officer made an enquiry into the incident, in course which he verified the stock register of the firm and found that no stock of high speed diesel had been received in the service station in between 27-1-1991 and 3-3-1991. To ascertain correctness of the entry in the stock register, request was made to Senior Divisional Manager, Bharat Petroleum Corporation, Bhubaneswer, to supply the information as to whether M/s. Janta Service Station had lifted 12,000 litres of high speed diesel on 1/2-2-91. Responding to the request, he confirmed that the dealer had lifted the aforesaid quantity of high speed diesel on 1-2-91 from Visakhapatnam depot. On receipt of such information, stock register of petrol and diesel of the firm maintained from 1-4-90 to 20-2-91 was seized. Thereafter, the Marketing Inspector inspected Visakhapatnam depot to enquire from the Despatch Unit of Bharat Petroleum Corporation about lifting of 12,000 litres of high speed diesel by the firm. On enquiry it came to light that firm by its own tank lorry bearing registration No. CEM (sic) 3785 had lifted 12,000 litres of high speed diesel on 1-8-91 and left Visakhapatnam on the very day. The further case of the prosecution is that the aforesaid tank lorry instead of travelling to Bhawanipatra through the usual route came to Kalahandi via (sic) Sonki unified check-gate. From all these facts and circumstances the complainant being satisfied that 12,000 litres of high spped diesel had been unauthorisedly sold, launched prosecution against the accused under Sections 7 and 9 of the Act to stand his trial for violation of Clause 5 read with Clause 6 of the Order.

3. Learned counsel appearing for the accused raised two fold conditions :

(i) that there having no specific allegation in the prosecution report that 12,000 litres of high speed diesel has been sold within the district of Kalahandi, the Special Judge-cum-Sessions, Judge, Kalahandi, Bhawanipatra, lacks jurisdiction to try the case; and

(ii) that materials are lacking that the aforesaid quantity of high speed diesel had been unauthorisedly sold by the accused and therefore, filing of prosecutetion against him under Sections 7 and 8 of the Act was unwarranted.

Learned Additional Government Advocate submits that a scrutiny of the materials on record will prima facie show that the accused has committed the offence as alleged within the district of Kalahandi and so there is no justifiable ground to quash the proceeding in exercise of inherent power.

4. Sub-clause (e) of Clause 2 of the Order defines 'dealer'. According to the said definition 'dealer' means a person appointed by an Oil Company to purchase, receive, store and sell motor spirit and high speed diesel oil whether or not in conjunction with any other business, and shall include his representatives, employees or agents. The word 'malpractices' defined in Sub-clause (a) includes the following acts of omission and commission in respect of licence or other document shall be on him. So on consideration of the prosecution allegations coupled with circumstances and in view of Section 24 of the Act, I am of the considered opinion that the prosecution launched against the accused is legally maintainable and the Special Judge-cum-Sessions Judge, Kalahandi is well within his jurisdiction to take cognizance of the offence since according to the prosecution the lorry which was carrying the high speed diesel had entered inside the district of Kalahandi.

5. Before parting with, I may observe that the accused had earlier approached this Court in Criminal Misc. Case No. 380 of 1991 to quash the proceedings. Upon hearing the Court rejected the prayer and dismissed the case. Although the accused in his petition has stated that the matter was earlier before this Court in the aforesaid Criminal Misc. Case, but he has not specifically mentioned that the reference self-same prayer which has been made in the present proceeding was rejected. From the above it appears that the accused wants to stall the proceeding by approaching this Court time and again. Such an attempt should be depricated or also there would be no end to litigation. In view of discussions made above, I hold that this is a frivolous application filed by the accused seeking to quash the proceeding.

6. In the result, the Criminal Misc. Case is dismissed. The learned trial Court is directed to take up expeditious hearing and dispose of the case within four months. The record reveals that the accused has not yet entered appearance. He is, therefore, directed to appear before the trial Court on 1-11-95 to receive further direction in the matter. The lower Court record be sent immediately.

It may be stated that any observation made in this order will not influence the trial Court While disposing of the case on merit.