REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                 OF 2008 (Arising out of SLP (Crl.) No. 8113 of 2007)

M/s Precious Oil Corporation and Ors. ...Appellants  

Versus

State of Assam  ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Guwahati High Court  upholding the conviction of the appellants for

offence punishable  under Section 7(1)(a)(i)  of the Essential  Commodities

Act, 1955 ( in short the ‘Act’). The allegation was that the appellant had

violated Clause 3 of the Lubricating Oil and Greases (Processing, Supply &

Distribution Regulation) Order, 1987 (in short the ‘Control Order’).  Simple

imprisonment  of  one  month  and  fine  of  Rs.3,000/-  each  with  default

stipulation was awarded to the accused persons.    

3. The prosecution against the accused-appellants was initiated on the

basis of an offence report submitted by Sir Dhiraj Choudhury, Inspector of

Food and Civil Supplies, Assam, Guwahati PW-3 alleging inter-alia that on

1-10-1996 he along with two other Inspectors of Food and Civil Supplies

Department visited the processing industry of lubricating oil belonging to

the  appellant  no.2,  situated  near  Lankeswar,  Jalukbari,  Guwahati  and on

such inspection,  it  was  found that  the concern did not  possess  necessary

license  as  required  under  the  Control  Order  and  also  proper  books  of

account etc as required under the law were not produced. The inspecting

team found that no license could be produced for the processing unit and

thereby violated Clause 3 of the Control Order.  The accused had failed to

obtain  proper  license  as  required  under  law  within  6  months  of

commencement of processing and thereby has violated clause 5(5) of the

Control  Order.  The  inspecting  team  collected  and  sent  the  samples  of

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lubricating oil for necessary analysis to thee approved laboratory. After such

analysis, it was found that the said lubricating oil could not be considered as

Automotive  Lubricating  Oil,  thereby  violating  Clause  4  of  the  Control

Order attracting punishment for sale of adulterated lubricating oil. The team

seized from the appellants re-refined lubricating oil in 380 sealed tins of 1

litre each, 1,210 litres in 6 barrels containing 205 litres each, 19,475 litres of

used lubricating oil in 95 barrels containing 205 litres in each, 20 kgs. of

grease in one loose barrel, 920 numbers of empty tins of 1 litre capacity for

TOPOL 20 W/40,  one book of  accounts,  an extract  copy of  the Display

Board  of  Stock  and  Prices  displayed  in  the  office  premises,  3  litres  of

TOPOL, 20 W/46 contained in 3 sealed tins. The inspector having found

prima  facie  violation  of  Clauses  3,  4  and  5(5)  of  the  Control  Order

punishable under Section 7 of the Act, submitted the offence report against

the  appellants  in  the  Court  of  the  learned  Sessions  Judge,  Kamrup  for

necessary  prosecution  under  the  law.  The  accused-appellant  no.1  is  the

concern itself  and the accused No.2 is  the Proprietor  of  the concern and

accused no.3 is an employee of the concern. On the basis of the aforesaid

offence report,  Sp1.  Case No.5 of  97 was  registered  in  the  Court  of  the

learned Sessions Judge, Guwahati.

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4. Summons having been served, the appellants appeared in the case and

vide order dated 19.8.1997, the learned trial judge explained the offences to

them about  allegations  of  contravention  of  Clauses  3,  4  and  5(5)  of  the

Control Order punishable under Section 7(1)(a)(i) of the Act.  

5. Accused  persons  pleaded  not  guilty  and  therefore  trial  was  held.

Three  witnesses  were  examined  to  further  the  prosecution  version.

Appellant No.2 examined himself as DW-1. The stand of the appellants was

that appellant No.2 the proprietor of the concern had applied for issuance of

license under the Control Order to the competent authority. Since no action

was taken even though all formalities were complied with, the High Court

was approached by filing Civil Rule 2185 of 1997 for necessary directions

to issue the license. The High Court by its order dated 20.5.1997 disposed

of the writ petition directing the appellant to consider the case of the writ

petitioners in the matter of issuance of license for processing lubricating oil

and  grease.  It  was  further  submitted  that  Inspector  of  Food  and  Civil

Supplies was not authorized to conduct the inspection and/or to submit the

offence report in terms of Clause 8 of the Control Order. Strong reliance

was placed on a decision of this Court in Murarilal Jhunjhunwala v. State of

Bihar and Ors. (AIR 1991 SC 515).  The trial  Court found the appellants

guilty and the High Court affirmed the same. The High Court  noted that

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different  stands  were  taken  before  it.  A  plea  relating  to  Probation  of

Offenders Act, 1958 (in short the ‘Probation Act’) was rejected holding that

the offence alleged was a white-collar offence.   

6. Stand of the appellants in the present appeal is that no mens rea was

involved. There was no sale involved and, therefore, Clause 4 of the Control

Order does not apply.  Even though the trial Court held that Clause 4 was

not violated, it went wrong in holding that clause 3 was violated. Though

the trial Court appreciated the bona fides of the appellants, yet the sentence

of one month was imposed.  

7. Learned counsel for the respondent on the other hand supported the

judgment.  

8. Clauses 3 of the Control Order read as follows:

“Restriction  on  Processing  and  Storage  of Lubricating Oils and Greases- No person shall carry on the  business  of  a  processor  except  under  and  in accordance  with  the  terms  and  conditions  of  a  valid licence granted to him under this order.”

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9. A bare reading of  Clause  3 shows that  no person is  authorized  to

carry on business of a processor except and in accordance with the terms

and  conditions  of  a  valid  license  granted  to  him under  the  order.   The

evidence  of  PW-3  who  led  the  inspecting  team clearly  established  that

processing was being undertaken.

10. Clause  5  deals  with  application  for  grant  or  renewal  of  a  licence.

Clause 5(5) provided that all existing processors shall obtain licence under

the Control Order within 6 months of the commencement thereof.  Clause 6

(5) provides for making an application for renewal of licence before three

months  of  its  expiry.  The  Control  Order  has  been  promulgated  under

Section 3 of the Act.

11. At the time of  inspection,  large quantity of stocks  and/or  products

was  stored.  Though  the  allegations  inter-alia  were  that  no  licence  was

obtained,  proper  books  of  accounts  were  not  maintained  and  adulterated

lubricating  oil  was  stored.   The  following  articles  were  seized  during

inspection:  

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(1) Re-refined  lubricating  oil  (TOPOL  20-40)  380  sealed

tins of one litre each, Grade-II.

(2) Re-refined  lubricating  oil  1,  210  litre  in  six  barrel

containing 205 litres in each.

(3) 19,475  litres  of  used  lubricating  oil  in  95f  barrels

containing 205 litres in each.

(4) Greases 20 Kgs. in one loose barrel.

(5) 920  numbers  of  empty  tins  of  one  litre  capacity  for

TOPOL 20W/40.

(6) One  book  of  accounts  having  incomplete  accounts  of

finished products.

(7) An extract copy of the display board of stocks and prices

displayed in the office premises of the firm.

(8) 3 litres of TOPOL-20W/40 contained  in 3 sealed tins of

one litre each (for sample)   

12. Although the accused persons took the plea that there was no sale, but

interestingly  there  was  display  board  showing  stocks  and  prices  of  the

articles.  This  itself  was indicative  of  the  fact  that  sale  transactions  were

being carried on. The trial Court and the High Court had rightly decided that

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there has been contravention of Clause 3 of the Control Order. In that view

of  the  matter  the  conclusions  cannot  be faulted.  Coming to  the  question

whether the Probation Act can be applied, this  Court had an occasion to

with the same.    

13. The rehabilatory purpose of the Probation Act is  pervasive enough

technically  to  take  within  its  wings  an  offence even  under  the  Act.  The

decision in Ishar Das v. State of Punjab (1973 (2) SCC 65) is authority for

this  position.  Certainly,  “its  beneficial  provisions  should  receive  wide

interpretation and should not be read in a restricted sense”. But in the very

same decision this Court indicated one serious limitation:

“Adulteration of food is a menace to public health. The Prevention  of  Food Adulteration  Act  has been enacted with the aim of eradicating that anti-social evil and for ensuring  purity  in  the  articles  of  food.  In  view of  the above  object  of  the  Act  and  the  intention  of  the Legislature  as  revealed  by  the  fact  that  a  minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21  years  of  age  found  guilty  of  offences  under  the Prevention of Food Adulteration Act ....”

14. The kindly application of the probation principles is negatived by the

imperatives  of  social  defence  and  the improbabilities  of  moral  proselyti-

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sation. No chances can be taken by society with a man whose anti-social

operations, disguised as a respectable trade, imperil numerous innocents. He

is a security risk. Secondly, these economic offences committed by white-

collar  criminals  are  unlikely  to  be  dissuaded  by the  gentle  probationary

process.  Neither casual  provocation nor motive against  particular  persons

but  planned  profit-making  from  numbers  of  consumers  furnishes  the

incentive - not easily humanised by the therapeutic probationary measure. It

is not without significance that the 47th report of the Law Commission of

India has recommended the exclusion of  the Act to social  and economic

offences by suitable amendments. It observed:

“We appreciate that the suggested amendment would be in  apparent  conflict  with  current  trends  in  sentencing. But ultimately, the justification of all  sentencing is  the protection  of  society.  There  are  occasions  when  an offender  is  so  anti-social  that  his  immediate  and sometimes prolonged confinement is the best assurance of  society’s  protection.  The  consideration  of rehabilitation has to give way, because of the paramount need  for  the  protection  of  society.  We  are,  therefore, recommending  suitable  amendment  in  all  the  Acts,  to exclude probation in the above cases.” (p. 85).

15. In the current Indian conditions the probation movement has not yet

attained sufficient strength to correct these intractables. Maybe, under more

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developed conditions a different approach may have to be made. For the

present  we  cannot  accede  to  the  invitation  to  let  off  the  accused  on

probation.

16. The aforesaid position was also highlighted in  Pyarali  K. Tejani v.

Mahadeo Ramchandra Dange and Ors. (1974 (1) SCC 167).

17. Above being the position, there is no merit in this appeal which is

accordingly dismissed.  

………………………….J. (Dr. ARIJIT PASAYAT)

………….………………J. (P. SATHASIVAM)

………….……………… J.

(AFTAB ALAM) New Delhi, February 05, 2009

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