Rakesh Gupta vs State of M.P.

S.K. Palo, J.—Heard. The petitioner by filing this application under Section 482 of Cr.P.C. requested to quash the Criminal Complaint No. 203/08 pending before the Judicial Magistrate First Class, Gohad, District Bhind and also to quash the FIR registered at Crime No. 23/08 for offence under Section 3/7 of Essential Commodities Act, 1955 by invoking the inherent powers of this Court.

The facts giving rise to this petition are, on 6-2-2008 a joint inspection was carried out by the Officers of Department of Weights and Measurement as well as Officers of Food Department, in the outlet for distribution of Motor Spirit, High Speed Diesel Oil to the consumers at the petrol pump established at Bandharoad, Gohad owned by the petitioner known as, Rakesh Filling Centre. Licence in this regard was issued to the petitioner, which is Annexure P-2 under Section M.P. Motor Spirit and High Speed Diesel Order, 1980. Through this joint inspection after measuring the retail outlet, measure was found short 100 ml. for five Uteres. Therefore, on the basis of the said allegation separate proceedings were initiated and seizure memo was prepared by the department of Weights and Measurement. An FIR was lodged that cash memo of diesel were not being issued by the petitioner in the retail outlet to the consumers and the petitioner has taken benefit from the consumers and violated Clause 2(f) of the Motor Spirit and High Speed Diesel Oil Order, 2005 and violated Clause (10) and also violated condition No. 10 of the Licence Conditions.

On these allegations of 100 ml. short of every 5 litres diesel, charge sheet was filed before JMFC, Gohad, District Bhind. Summary trial under Sections 260 and 264, Cr.P.C. was initiated in Criminal Case No. 84/2006 in which the petitioner was charged under Section 39(2) of the Weight and Measurements, Manak Pravarthan Adhiniyam. On his admission, the petitioner Sanjay Kumar and son of the petitioner were imposed fine of Rs. 3,000/- each and the case was disposed on 27-7-2008. Subsequently, FIR Crime No. 23/08, dated 7-2-2008 was lodged under Section 3/7 of Essential Commodities Act. On the same offence Criminal Complaint No. 203/2008 has been registered before JMFC, Gohad, District Bhind.

In this back drop, the petitioner claimed that two different al legations are made in the FIR. That the measurement is not proper and that the cash memo was not issued by the petitioner to the consumers, therefore, the petitioner has breached the conditions of the Licence.

The petitioner contended that once the petitioner has faced the trial and was imposed fine of Rs. 3,000/-, for the same offence, he cannot be tried for the second time. That would amount to double jeopardy and Section 300, Cr.P.C. prohibits such prosecution. Cash memo was issued by the petitioner only on demand of the customers. It is not mentioned in the enquiry report that who is the customer, who demanded the cash memo of and to whom such bill has not been given. Looking to the facts and circumstances of the case, the entire action of the respondents cannot be sustained and the same deserves to be quashed.

Ms. Sudha Shrivastava, learned Panel Lawyer, for the State has claimed that the prosecution earlier was under the Weight and Measurement Act, therefore, that was a different proceeding. But, the present FIR is under Section 3/7 of the Essential Commodities Act, which is a different proceeding and is under a different statute. Therefore, the same cannot be attracted the Section 300 of Cr.P.C.

A Division Bench of this Court in Virendrasingh v. Collector, District Indore, reported as AIR 1986 MP159, has held that:--

"(B) Constitution of India, Art. 226.--Alternative remedy--Writ petition heard and admitted on merits--Order impugned passed in clear violation of statutory provisions--Writ petition could not be rejected on ground of existence of alternative remedy."

Section 300 of the Cr.P.C. reads as follows:--

"Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of Competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."

The principle of double jeopardy is based on the rule of "Autre fois acquit", means that "so long as an order of acquittal or conviction at a trial held by a Competent Court of a person charged with an offence stands that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom."

In Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao and Another, AIR 2011 SC 641 : (2010) 1 BC 669 : (2011) 112 CLT 79 : (2011) CriLJ 1094 : (2011) 1 Crimes 266 : (2011) 2 CTC 459 : (2011) 1 RCR(Civil) 901 : (2011) 1 RCR(Criminal) 803 : (2011) 2 SCALE 148 : (2011) 2 SCC 703 : (2011) 1 SCC(Cri) 882 : (2011) 106 SCL 233 : (2011) 2 SCR 364 : (2011) AIRSCW 788 : (2011) 1 Supreme 636 , Hon''ble the Supreme Court has propounded that:--

"Criminal Procedure Code, 1973, Section 300--Applied-Distinction with Art. 20(2), Constitution of India, stated--Appellant having been convicted under Section 138, N.I. Act, held, cannot be prosecuted under Section 420, IPC for the same set of facts-Constitution of India, Art. 20(2)--Negotiable Instruments Act, 1881, Section 138."

It is reckoned that Article 20(2) of the Constitution only states that no person shall be prosecuted and punished for the same offence more than once but Section 300(1), Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence on the same facts.

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence while such conviction or acquittal remains in force. No person can be tried again for the same facts for any other offence for which a different charge from the'' one made against him might have been made under sub-section (1) of Section 221 of Cr.P.C. for which he might have been convicted under section thereof.

In my considered opinion, when the petitioner in a case instituted against him was tried and was convicted and the said conviction has attained finality, and still remains in force, in such state of affairs on the same set of facts the petitioner cannot be prosecuted for the offence under Section 3/7 of Essential Commodities Act. Thus, this petition is allowed and the FIR Crime No. 23/2008, dated 7-2-2008 registered at Police Station, Gohad, District Bhind under Section 3/7 of Essential Commodities Act is quashed and subsequent proceedings are also quashed.