Aji vs State of Kerala

K. Ramakrishnan, J.—Accused Nos. 1 and 2 in Crime No. 515/2014 of Vizhinjam police station have filed this petition to quash the proceedings under Section 482 of the Code of Criminal Procedure.

It is alleged in the petition that the petitioners were arrayed as accused Nos. 1 and 2 in Crime No. 515/2014 of Vizhinjam police station alleging commission of offence under Sections 6 of Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation of Supplies) Order, 1979 and Sections 3 and 7(1)(a)(ii) of the Essential Commodities Act, 1955.

The prosecution allegation was that on 17.4.2014 while the Sub Inspector of Police, Vizhinjam police station was on patrol duty, he received information from the Control Room that two tanker lorries bearing Reg. Nos. KL-13-E-450 and KL-07-AQ-7374 are illegally transporting tar. On seeing the vehicles, he intercepted the same. On questioning the petitioners, they informed that the tar was being transported from Cochin Oil Refinery for M/s. Thoppil Constructions.

Later, the Manager of M/s. Thoppil Constructions produced two invoices issued by the Cochin Oil Refinery to Thoppil Constructions. On verifying such invoices, it was found that the petitioners were transporting tar without valid permission from the Government. Therefore, Annexure-A First Information Report was registered as Crime No. 515/2014 of Vizhinjam Police Station alleging commission of the above said offences and the petitioners were arrested and the vehicles were seized. Thereafter the petitioners were produced before the Judicial First Class Magistrate Court-II, Neyyattinkara and they were released on bail. The tar found in the lorries were transported for M/s. Thoppil Constrictions Pvt. Ltd., a Government A Class contract proprietorship engaged in the work of roads maintained by the Government and Local Self Government Institutions. Tar was transported for the purpose of construction of Varkala-Edava-Kappil road. M/s. Thoppil Constructions entered into an agreement with the Superintending Engineer, Roads and Bridges, South Circle, Thiruvananthapuram as per agreement No. 57/SESC/2013-14 for the work of improvements of Varkala-Edava-Kappil road. Tar was purchased from the Bharath Petroleum Corporation Limited as per Annexures-B and C invoices which will show the vehicle numbers in which it was permitted to be transported. The construction company is having a tar mixing unit at Chirakkara. Due to some objection raised by the panchayat and certain persons in the locality, the company could not run the tar mixing unit there. In the meantime, they purchased tar as per Annexures-B & C. There was no place to store the tar. The construction company took the tar to Melamkonam, where other tar mixing unit is functioning permitted as per Annexure-D letter dated 2.4.2014 issued by the Executive Engineer. The seizure of the vehicles was informed to the District Collector, Thiruvananthapuram for initiating action under Section 6A of the Essential Commodities Act, 1955 and the District Collector by Annexure-E order informed that tar is not an essential commodity which will not fall under the provisions of the Essential Commodities Act and directed release of the vehicles to the owners of the vehicles. So according to the petitioners, no offence as alleged has been committed and the prosecution is nothing but an abuse of process of court and law. So they have no other remedy except to approach this Court seeking the following relief:

For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Honourable Court may be pleased to quash Annexure-A FIR registered as against the petitioners as Crime No. 515/2014 of Vizhinjam Police Station, in the interest of justice.

The Sub Inspector of Police, Vizhinjam police station, who is conducting the investigation and representing the respondent filed a statement, in which it was alleged that the vehicles were seized on 17.4.2014 at 10 a.m. when he received information from the Control Room that the two tanker lorries were engaged in illegal transport of tar and they found the vehicle passing towards Chappath towards Poovar road. At the time when the vehicles were intercepted, there were no documents with the petitioners. So they registered a crime as Crime No. 515/2014 under Section 6 of Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation on Supplies) Order 1979 read with Section 3 & 7(i)(a)(ii) of Essential Commodities Act, 1955. Thereafter, the lorries with the tar were produced before the District Collector with a report and accused were produced before the Judicial First Class Magistrate Court-II, Neyyattinkara and they were remanded to custody and later released on bail on 21.4.2014. As per the direction of the District Collector vide Order No. A6/29461/2014 dated 24.4.2014, the tanker lorries with tar were released to the registered owners of the vehicles. During investigation it was revealed that the third accused, who is a Contractor of PWD, with the help of accused 1 and 2 was trying to transport Bitumen to Tamil Nadu for sale for making more profit instead of taking Bitumen to Varkala, it was being taken to Tamil Nadu side and thereby committed the offences punishable under Sections 406, 407, 409 and 34 of the Indian Penal Code and the third accused was implicated and earlier penal sections were deleted and Sections 406, 407, 409 and 34 of the Indian Penal Code were added. The third accused is absconding and investigation is still in progress. So, they prayed for dismissal of the petition.

Heard the learned counsel for the petitioners and the learned Public Prosecutor appearing for the respondent.

The learned counsel appearing for the petitioners submitted that the case was registered alleging violation of provisions under Section 6 of Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation on Supplies) Order 1979 read with Section 3 & 7(i)(a)(ii) of Essential Commodities Act, 1955 and as per the order of the District Collector, it will be seen that it is not an essential commodity coming under the above order or Act and so no offence as alleged has been committed by the petitioners. Further since there was some dispute in Chirakkara area and tar could not be stored there, as per the directions of the Executive Engineer, the same has to be transported to Melamkonam which is a place situated near Pappanamkode and in order to go there, they were going thorough bye pass road and at that time the vehicles were seized. So there is no offence as alleged of transporting tar to Tamil Nadu has been committed and as such the entire proceedings are liable to be quashed.

On the other hand, the learned Public Prosecutor appearing for the respondent argued that the vehicles were seized at the time when the petitioners were proceeding towards Tamil Nadu side and the investigation revealed that the third accused contractor in collusion with the present petitioners was trying to transport tar to Tamil Nadu to sell the same for higher price and for getting more profit with a view to cheat the Government and Public Works Department. The question as to whether he was going to Melamkonam as claimed by the petitioners or going towards Tamil Nadu as alleged by the prosecution is a matter for evidence and investigation is still in progress. So, it is not a case to be quashed at this stage.

It is an admitted fact that as per Annexures-B and C invoices tar was purchased for M/s. Thoppil Constructions, Varkala from Bharat Petroleum Corporation Ltd., Kochi as per invoice dated 16.4.2014 to be transported in tanker lorries bearing Reg. Nos. KL-13-E-450 and KL-07-AQ-7374 for the purpose of Thiruvananthapuram, PWD Roads Division as per the orders of the Executive Engineer, PWD Roads, Thiruvananthapuram. It is also an admitted fact that when the vehicles were passing through Chappath towards Poovar, the Sub Inspector of Police, Vizhinjam intercepted the same and at that time, since there was no document with them, he seized the vehicles with tar and registered Annexure-A First Information Report as Crime No. 515/2014 of Vizhinjam Police Station against the petitioners alleging offences under Section 6 of Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation on Supplies) Order 1979 read with Section 3 & 7(i)(a)(ii) of Essential Commodities Act, 1955. It is also an admitted fact that the vehicles along with Bitumen were produced before the District Collector, Thiruvananthapuram and he, as per Annexure-E order, found that Bitumen will not come under the definition of essential commodity under the Essential Commodities Act and no confiscation under that Act need be passed in respect of those vehicles and directed release of the vehicles to the owners. The petitioners were produced before the Judicial First Class Magistrate Court-II, Neyyattinkara and they were remanded to custody and after some days, they were released on bail. The petitioners produced Annexure-D letter dated 2.4.2014 of Executive Engineer, PWD Roads Division, Thiruvananthapuram permitting M/s. Thoppil Constructions to keep Bitumen at their mixing plant located at Melamkonam, Pappanamkode. It is also an admitted fact that Bitumen carried in the vehicles was purchased for the purpose maintenance work of Varkala-Edava-Kappil road. Normally the vehicles need not go to Chappath for going to Pappanamkode and the allegation of the prosecution was that it was intended to be transported to Tamil Nadu through Parassala. So, under the circumstances, whether there was any necessity for vehicles to go to Chappath towards Poovar road for reaching Pappanamkode and it was really going to Pappanamkode through that road as claimed by the petitioners etc is a matter for evidence. Further, the offences originally alleged namely Section 6 of Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation on Supplies) Order 1979 read with Section 3 & 7(i)(a)(ii) of Essential Commodities Act, 1955 were deleted and since it was revealed during investigation that with a view to cheat the Government and the Public Works Department, the Bitumen given for the purpose of Government contract works were intended to be transported to Tamil Nadu for the purpose of sale by the petitioners 1 and 2, who were arrayed as accused 1 and 2 along with the contractor, who is now arrayed as the third accused, they have deleted those sections and the third accused was implicated and Sections 406, 407, 409 and 34 of the Indian Penal Code were added. So it cannot be said at this stage that there is no intention to transport Bitumen to Tamil Nadu as it was found near Chappath which is a route going to Tamil Nadu via Parassala and whether this can be taken to Melamkonam at Pappanamkode through this route etc is a matter for evidence. If certain matter has to be decided on the basis of evidence and investigation is in the preliminary stage, it is not proper for this Court to quash the proceedings invoking the power under Section 482 of the Code unless the court is fully satisfied that even on the basis of the allegations, the offences alleged are not prima facie committed and proceeding with the case against the accused persons will be an abuse of process of law. But, in this case, it is not possible to come to such a conclusion on the basis of the allegations made and the circumstances now made out on the basis of the materials available from the case diary file. So the petitioners are not entitled to get the relief of quashing the proceedings as claimed by them in the petition and the petition lacks bonafide and the same is liable to be dismissed. I do so.

In the result, this petition is dismissed.