M/s. Ipour Gkc & Rkc & Sons & Anr. v. State Rep. by Station House Officer Pondicherry & Ors.

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 504 of 2001 From the final Judgment and Order dated 22.11.2000 of the High Court of Judicature at Madras in Criminal Appeal No. 401 of 1993 M. Karpaga Vinayagam, Anil Kaush1k, Shiv Prakash Pandey and Gopal Singh for the A.ppellants. V. Kanakraj, S.J. Aristotle. V.G. Pragasam and Prabhuramasubramanian for the Respondent. The Judgment of the Court was delivered by Or. ARIJIT PASAYAT, J. 1.Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High 8,., Court setting aside the judgment of acquittal rendered by learned Special judge, Pondicherry in STR No .. 95 of 1984 so far as the appellants are concerned while upholding the acquittal in respect of five others. 2. The seven accused persons faced trial in the following manner:

The charges against the accused/appellants are that Al is a.partnership firm and A2 is the partner of the firm, A3 is the Driver of the Vehicle concerned and A4 is Cleaner, while A5, A6 .and A7 are said to be retail dealers of Kerosene. The I Hindustan Petroleum Corporation Limited from Madras is distributing Kerosene to A 1 firm at Pondicherry and Al firm has to observe Clause 13 of the Pondicherry Kerosen.e Control Order, 1969 (in short the 'Control Order') and sell the Kerosene only to another wholesale dealer licensed under that order or to registered dealer or to any institution or person approved by . the licensing authority. Such sales shall be in such quantities and or such intervals, as the licensing authority may, by general or special order, direct.

The prosecution case is that on 15-07-1984, at about 6 p.m. one tanker lorry PYZ-5699 was brought to the check post from Madras reporting import of 11,000 litres of Kerosene to Al firm and the driver also paid octroi of Rs.110/- vide receipt No.966260 dated 15-07-1984. After looking at the invoice No. 6124 dated 01-07-1984, which has been marked as Ex.P2 Series, the authorities entertained suspicion because the dispatch was on 14. 7.1984 and when they checked the vehicle they found it empty. Therefore, the driver was questioned, who gave statement (Ex.P3) written in his own hand writing, but did not sign and escaped with A4 cleaner. Therefore, a case was .. M/S. !POUR GKC & RKC & SONS & ANR v. STATE REP BY STATION HOUSE OFFICER [DR ARIJIT PASAYAT, J.] regist~red against A 1 firm as well as A2 partner alongwith driver A and ~ieaner besides charging AS, A6 & A 7 who are the retail sellers of kerosene to whom A 1 claimed to have suld the kerosE;!ne. ~·:·The trial Court on consideration of the evidence came to ·, hold t~at the accusations have not been established.

The State" 8 of Pondicherry filed an appeal before the High Court questioning thediidgment of acquittal recorded by the trial court. By the , · ~ impugn.ed order the High Court set aside the acquittal so far as · the present appellants are concerned while dismissing the spme. qu~ ~h~ other five co-accused persons. ti · 3.: Learned counsel for the appellant submitted that the. High· Court has lost sight of the fact that the ingredients.· ne~es~ary to bring in application of clause 13 of the Control . Order bave not been established and, therefore, the conviction~ D as-recorded by the High Court cannot be sustained. It is pointed ' outJhat the basis for the proceeding against the appellant was (;!ll~g~d· statement of A3, who has been acquitted by the tria! , .court and the same has been upheld by the High court. 4. Learned counsel for the respondent-State on the other .. E , hand submitted that the appellants produced certain documents to show receipt of the 11,000 litres of kerosene.

But on verification it was noticed that those documents are not relatable ~nd, therefore, the High Court was justified in finding the app.eUants guilty. 5. Clause 13 of the Control Order reads as follows: · •'13. Restriction on sale of kerosene - No wholesale dealer .. sha}I sell kerosene, except to another wholesale .dealer licensed under this order or to registered dealer or to any G . , , · irtstitution or person approved by the licensing authority. Su9h •. sales shall be in such quantities and at such intervals, as the .. licensing authority may, by general or special order, direct." . 6. A bare perusal of the provision shows that it is relatable " • to s~l.e. Both the trial Court and the High Court held th~fA3 is·.}:! .:. 4 ~. .. ~ i ~~: ·\ ; ~ ·, 896 SUPREME COUR.T R~PORTS purported to have made a statement that he had soid the kerosene on the way. Similar statement was purportedly given by A4.

But the officials proceeded to act on the aforesaid statements which were undisputedly not signed statement. Apart from the fact that the said statement did not in any way implicate s the appellants, the effect of such statement to find the appellants · guilty has been lost sight of by the High Court. The trial court foun:i that there was no evidence to show and no steps were taken and no investigation was focused, as to whe.ther the articles were sold on the way. The categorical findings of the trial Court and the High Court were that no such sale took place. Even if the stand of the prosecution is accepted that the receipt was not established that would in a sense relate to the purchase and not to sale and, therefore, Clause 13 read with Section 7 of the Essential Commodities Act, 1955 (in short the 'Act') do 0 not have any application.

The trial Court was, therefore, justified in directing acquittal of the appellant and the High Court without propPrly analyzing the legal position directed conviction which canPot be maintained. 7. The appeal is allowed. The bail bonds executed by the appellants for release on bail, pursuant to the order dated 20.4.2008 shall stand discharged. K.K.T. Appeal allowed.