REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 504 OF 2001

M/s. Ipour GKC & RKC & Sons ...Appellants & Anr.

Vs.

State Rep. by Station House Officer ...Respondents

Pondicherry & Ors.

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned

Single  Judge  of  the  Madras  High  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

Hindustan  Petroleum  Corporation  Limited  from  Madras  is

distributing Kerosene to A1 firm at Pondicherry and Al firm

has to observe Clause 13 of the Pondicherry Kerosene 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.

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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.l10/- 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  registered  against  A1  firm as  well  as  A2  partner

alongwith driver  and cleaner  besides  charging A5,  A6 & A7

who are the retail sellers of kerosene to whom A1 claimed to

have sold the kerosene.

The trial Court on consideration of the evidence came to

hold  that  the  accusations  have  not  been  established.   The

State  of  Pondicherry  filed  an  appeal  before  the  High  Court

questioning  the  judgment  of  acquittal  recorded  by  the  trial

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court.  By the impugned order the High Court set aside the

acquittal so far as the present appellants are concerned while

dismissing the same qua the other five co-accused persons.

3. Learned  counsel  for  the  appellant  submitted  that  the

High  Court  has  lost  sight  of  the  fact  that  the  ingredients

necessary to bring in application of clause 13 of the Control

Order have not been established and, therefore, the conviction

as  recorded  by  the  High  Court  cannot  be  sustained.   It  is

pointed  out  that  the  basis  for  the  proceeding  against  the

appellant  was  alleged  statement  of  A3,  who  has  been

acquitted by the trial court and the same has been upheld by

the High court.

4. Learned counsel  for the respondent-State on the other

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 and, therefore,  the High Court was justified in

finding the appellants guilty.   

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5. Clause 13 of the Control Order reads as follows:  

“13. Restriction on sale of kerosene – No wholesale dealer shall sell kerosene, except to another  wholesale  dealer  licensed under  this order  or  to  registered  dealer  or  to  any institution or person approved by the licensing authority.   Such  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 sale. Both the trial Court and the High Court held that A3 is

purportedly to have made a statement that he had sold 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  the  appellants,  the  effect  of  such

statement to find the appellants guilty has been lost sight of

by the High Court.  The trial court found that there was no

evidence  to  show  and  no  steps  were  taken  and  no

investigation was focused, as to whether the articles were sold

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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  not

have any application.  The trial Court was, therefore, justified

in  directing  acquittal  of  the  appellant  and  the  High  Court

without  properly  analyzing  the  legal  position  directed

conviction which cannot 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.

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………..……………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 28, 2008   

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