DAMODARAN SADANANDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been charged "under S.24 (3) of the Industries (Development and Regulation) Act, 1951, r/w R.3 and 12 of the Kerala State Cement Control Order, 1961" and convicted by the District Magistrate "of the offence of contravention of R.9 of the Kerala State Cement Control Order, 1961"; and that has been affirmed by the Sessions Judge in appeal. Counsel for petitioner contends that the offences under R.3 and 12 of the Kerala State Cement Control Order hereafter 'the Order' for short are absolutely independent of an offence under R.9 of the same Order and as there was no charge under R.9 the. conviction is bad in law.

(2.) That the offences under R.3 and 12 of the Order are distinct from an offence under R.9 of the Order cannot be disputed. R.2 (vii) of the Order defined 'stockist' as a person who deals in cement involving the purchase, sale and storage for the sale of cement. The finding is that "he had been in possession of 59 bags of cement for his personal use", and that clearly takes him out of the definition of a stockist. R.3 of the Order, which prohibits carrying on business as a stockist except under a proper licence, could not be attracted to the petitioner. R.12 read:

(3.) In Nanak Chand v. State of Punjab ( AIR 1955 SC 274 ) S. R. Das, Bhagwati and Imam JJ., have held unanimously that a charge for a substantive offence under S.302 IPC. is for a distinct and separate offence from that under under S.302 read with S.149 and that a person charged with an offence read with S.149 cannot be convicted of the substantive offence without a specific charge therefor and further that a conviction for a charge not framed is an illegality and not an irregularity curable by the provisions of S.535 and 537, CrPC vide head note (h) of AIR report. Their Lordships observed: