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Discretionary Power of Collector to prosecute u/s 7 of Essential commodities act, if the monthly quota is less than 10 % : MP High Court

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The question for consideration before the Division Bench upon a reference made by the learned Single Judge is “whether action for prosecution is mandatory if deviation is more than 10% of monthly quota and only discretionary if deviation is less than 10% of monthly quota or there shall not be any prosecution if deviation is less than 10% of monthly quota?”

This matter has come up before the Division Bench upon a reference made by the learned Single Judge vide order dated 19.07.2021, who, thereby expressing disagreement with earlier Single Bench judgment of this Court in Writ Petition No.13958/2016.

The court held that  It is evident from the plain reading of Clause 16(2) of the Control Order,

2015 that in case of violation of its Clause 13 for quantity more than 10 percent of the monthly allocation or repetition of violation under the same clause, a person shall mandatorily be prosecuted under Section 7 of the Essential Commodities Act, 1955.

Thus as far as the first part of question is concerned, if the deviation is more than 10 percent of monthly quota, no discretion is left with the competent authority except to order prosecution. But it would not be mandatory for the competent authority to direct prosecution, if the deviation is less than 10 percent of monthly quota, as in such cases, he may in his discretion impose any other penalty.

In the facts of the present case, since finding of a violation of various sub-clauses of Clauses 10 and 11 of the Control Order, 2015 has been recorded, the Collector may concerning sub-clause (8) of Clause 16 in his discretion direct prosecution but if the allegations are not very serious, he may instead impose any other suitable penalty.

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