The court established that while confiscation proceedings and criminal prosecution can be initiated simultaneously, the absence of mandatory sanction for prosecution can lead to the quashing of the criminal prosecution.

JUDGMENT

(Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., to call for the records relating in C.C.No.242 of 2017 on the file of Judicial Magistrate No.1, Krishnagiri and quash the same.)

1. This Criminal Original Petition to quash the complaint in C.C. No.242 of 2017 filed against the petitioners for offences under Section 17 of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973 r/w Section 7(1) a (ii) of the Essential Commodities Act, 1955.

2. On 10/09/2016, the petitioners were found in possession of 600 litres of kerosene worth Rs.9,000/- transporting in 3 barrels each 200 litres in the Bolero Pickup Van bearing registration number KA 08 4491. According to the Respondent Police, the said kerosene is meant for public distribution and these petitioners had purchased it from the cardholders for less price and transporting it with an intention to sell it in the black market for higher price.

3. The petitioners admit the guilt. However the prosecution is challenged on the ground that the respondent police cannot prosecute for the said offence since for the very same offence, the DRO had conducted enquiry and levied fine of Rs.8520/- for the first petitioner and in lieu of confiscation of the vehicle, fine of Rs.80,000/- levied on the second petitioner. Both the petitioners have paid the fine levied. Therefore, for the very same offence, they cannot be again prosecuted.

4. It is contended by the learned counsel for the petitioners that, the complaint is filed without application of mind. There cannot be two prosecution for the same offence. As per the Kerosene Control Order, the Competent Authority can launch prosecution only on prior sanction. No Court can take cognizance without sanction. However, in this case the complaint is not supported by a valid sanction for prosecution.

5. The learned Government Advocate(Crl.Side) submitted that under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, any person, who is in possession of 20 litres or more of kerosene at any time shall unless otherwise established, be presumed to be a dealer. The onus to establishing that he is not a dealer shall be on the person concerned. Therefore, the petitioners, who were in possession of 600 litres of kerosene were presumed to be a dealer and take action under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 and under Section 7(1)(a)(ii) of the Essential Commodities Act.

6. The DRO, Krishnagiri passed the order dated 22/12/2016 imposing penalty in the confiscation proceedings initiated by him in exercise of the power under Section 6 A of the Essential Commodities Act, 1955. Whereas Section 6-D of the Essential Commodities Act, 1955 clearly state that the award of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby, liable under this Act. The prosecution impugned in this petition is independent of the confiscation proceedings and the same is legally permissible and valid.

7. Section 2 A of the Essential Commodities Act, 1955, defines “Essential Commodity” means a commodity specified in the Schedule to the Act. Petroleum and Petroleum products is mentioned in the Schedule at serial Number 5. Thus, kerosene being an essential commodity, in exercise of delegated power to make Orders under Section 3 of the Eessential Commodities Act, the Government of Tamil Nadu has notified the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 in Government Gazattee dated 14/11/1973 and the same has come into force at once. As per this Order, no person shall, on and after the commencement of this Order, carry on business as a retailer, unless he had been registered as such under this order by the Licensing Authority. In the instant case, the petitioners having been in possession of more than 20 litres of kerosene were deemed to be a dealer as per the Explanation II of the Clause 2. The DRO in exercise of the power under Clause 23 of the