Nagamanickam vs State

The 4th accused in S.T.C.No.9 of 1997 on the file of the Special Court for E.C/N.D.P.S Act cases, Coimbatore, Periyar and Nilgiris

Coimbatore described as an ""authorised dealer"" of fair prior shop No.2 represented by Nagamanickam, President, Udumalpet Co-operative

Marketing Society, Dharapuram Road, Udumalpet is the petitioner herein. A1 to A3 in that S.T.C. are the respective employees of the Society.

A complaint was lodged alleging violation of Clause 6(2) and (3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by

Card System) Order, 1982, in that A1 to A3 short measured kerosene to witnesses. The complaint also shows that there was an excess stock of

eight litres in the stock of the Society itself. The complaint specifically avers that A1 to A3 are responsible for the violation and the President of the

4th Accused Society was not even available at the time of the check. In the face of the above undisputed facts, the revision petitioner moved an

application in C.M.P.No.72 of 1998 in S.T.C.No.9 of 1997 with a request to drop the proceedings against him, as there are no materials at all,

either in the complaint or in the statements recorded during investigation implicating A4 in any manner with the offence complained of. The learned

trial Judge dismissed that application on merits. Hence the present revision.

Heard Mr.K.Kalyanasundaram learned counsel appearing for the revision petitioner and Mr.R.Karthikeyan learned Government Advocate

appearing on the criminal side for the State. The argument of the learned counsel for the petitioner is that, there are absolutely no materials on

record in the S.T.C. referred to above, from which it could even be inferred, that the revision petitioner is involved in the commission of the offence

and therefore the revision petitioner cannot be proceeded with. I heard Mr.R.Karthikeyan learned Government Advocate on this aspect. It

appears that originally summons were served on the Managing Director of the said Society. On his representation before court that he cannot be

made liable on the set of facts disclosed in the records his name was deleted and the Investigating Agency filed supplemental report implicating A4

as described earlier in this order.

The materials available on record do not show the involvement of the revision petitioner in his capacity as the President of the authorised dealer

in the commission of the crime. The entire averments available on record relate only to A1 to A3. It is stated in the complaint that the President of

the Society was not present during inspection and that the salesmen namely. Packer, Ravi Subramanian and Gnanasekaran are responsible for the

violations. It is also stated therein that the Accountant failed to discharge his duties properly and directly participated in the offence. In Tamil Nadu

Civil Supplies Corporation Ltd., Tirunelveli v. Inspector of Police, Civil Supplies, C.I.D., Tirunelveli, 1993 L.W.Crl. 601 a learned single Judge of

this Court had held that under Clause 14(1)(a) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order

1982, the authorised dealer cannot be straight away held liable for the criminal activities of the servants or the salesmen, unless it is shown that he

had any knowledge about the same. The complaint and the materials collected thereafter do not implicate the revision petitioner in his capacity as

the President of the authorised dealer, either directly or indirectly in the commission of the offence. The above referred to judgment had also been

cited in the judgment of the Full Bench of this court in Ganga Bai Vs. Inspector Civil Supply C.I.D., North Unit, Madras, . However the Full

Bench, noticing the above case law, went on to hold that the case law referred to above would not apply to that Full Bench judgment: In Tamil

Nadu Civil Supplies Corporation Ltd., Tirunelveli v. Inspector of Police, Civil Supplies, C.I.D., Tirunelveli, 1993 L.W.Crl. 601 it has been held as

follows:

''''Held: The facts in this case show that it was A5 salesman, who was transporting the eight bags of rice and that it was he, who made the false

entries in the bills books as if rice had been distributed to the card holders and that he is guilty of some offences. The question is how is A1 guilty of

any offence? it is not in dispute that A1 is an authorised dealer. "" I do not understand how clause 6(2) is violated at all by A1, from the facts of the

prosecution case."" This clause is to the effect that if a family card, which is registered with the authorised dealer is produced by the card holder, the

authorised dealer shall, after making necessary entries in the card, supply the scheduled commodities (not exceeding the quantity for which he is

eligible.) It is not understandable how A1 has violated this when A5 has made false entries in the bills as if rice has been supplied to card holders.

Therefore clearly no offence under clause 6(2) is committed at all.

Even if any offence is committed under this clause, again, it is difficult to understand how A1 the authorised dealer can be said to have committed

an offence.

Clause 14(1) prescribes that for any commission and omission of the partners, agents, servants and other persons, who are allowed to Work in the

fair price shop vis-a-vis the Regulation Order, the authorised dealer also is responsible. Certainly, the authorised dealer cannot be made

responsible for any intentional offence committed by its employees.

To the same effect is another judgment of this Court reported in Tamil Nadu Civil Supplies Corporation, etc., v. State, etc., 1996 (2) L.W Crl.

wherein it has been held as follows:

Merely because Clause 14(1)(a) says, that the authorised dealer can be held to be responsible, in the absence of any material, the appellant

cannot be held liable for an offence that has been committed by the salesman/A2 in this case.

In view of the law laid down by this court as stated above and in view of total absence of materials on record against the revision petitioner, I

am of the opinion that the learned trial Magistrate had erred in dismissing the discharge petition filed by the accused. Accordingly this revision is

allowed; the order under challenge is set aside and the revision petitioner/A4 is discharged from the proceedings in S.T.C.No.9 of 1997 on the file

of the Presiding Officer, Special Court for E.C/N.D.P.S. Act cases for the District of Coimbatore, Periyar and Nilgiris at Coimbatore.