Madhya Pradesh High Court
Mukesh Kumar Gupta vs The State Of M.P. on 5 July, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF JULY, 2023
WRIT PETITION No. 19149 of 2019
BETWEEN:-
1. MUKESH KUMAR GUPTA S/O SHRI VISHWANATH
GUPTA, AGED ABOUT 45 YEARS, OCCUPATION:
TRUCK OWNER R/O. KUTHLA P.S. KUTHLA
(MADHYA PRADESH)
2. LOK CHAND VISHWAKARMA S/O SHRI
BHAGWALI VISHWAKARMA, AGED ABOUT 42
YE A R S , OCCUPATION: DRIVER R/O MASADI,
POLICE STATION BADWARA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI D.K. DIXIT - ADVOCATE)
AND
THE STATE OF M.P. THROUGH POLICE STATION BARHI
DISTT. KATNI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI VIVEK KUMAR SHUKLA - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioners, namely, Mukesh Kumar Gupta and Lok Chand Vishwakarma, who are respectively owner and driver of the tanker bearing registration No.MP- 21/9367, have filed this petition challenging the order dated 17.06.2019, passed by learned VII Additional Sessions Judge, Katni, in Sessions Trial Signature Not Verified SAN No.196/2017, whereby, learned Additional Sessions Judge, Katni, has refused Digitally signed by ASHWANI PRAJAPATI Date: 2023.07.05 18:12:09 IST to entertain an application filed on behalf of petitioners under Section 20 of the 2 Petroleum Act, 1934 (hereinafter referred to as the 'Act of 1934' for short).
2. Shri Dixit, submits that petitioners had appeared on 09.08.2017, before the Presiding Officer and had filed an application under Section 20 of the Act for resampling. Since said application was filed within seven days of getting knowledge of the earlier report of sampling, therefore, that application should have been allowed and trial Court erred in dismissing said application.
3. Shri Vijay Kumar Shukla, learned Panel Lawyer for the State, in his turn supports the impugned order and submits that there is no provision for condonation of delay. It is pointed out that in fact, petitioners had knowledge of the earlier report of the sampling as is evident from the order sheet dated 21.06.2017 passed by the Judicial Magistrate First Class, whereby, order of committal was passed. It is submitted that in the order of committal itself, it is mentioned that except for one accused Satish, all other accused were present along with their counsel. It has categorically observed that copy of the charge sheet and other documents enclosed with the challan were supplied free of cost to all the accused persons. Though Shri Dixit disputed this fact, but at the same time, he has not provided the order of the trial Court to show that as to on which date he had received copy of the charge sheet and the documents enclosed with the challan.
4. Another important aspect is that petitioner No.1-Mukesh Kumar Gupta was absconding. Seizure proceedings were undertaken in presence of the driver petitioner No.2-Lok Chand Vishwakarma. Sample was taken on 20.10.2016, when tanker was seized under Police Station Barhi. It is mentioned that from the order sheet dated 13.04.2017, when charge sheet was filed, it is mentioned Signature Not Verified SAN that copy of the charge sheet was provided free of cost to all the accused Digitally signed by ASHWANI PRAJAPATI Date: 2023.07.05 18:12:09 IST persons. Report of the FSL Sagar is dated 03.12.2016. On 20.10.2016, seizure 3 was made from the possession of Lok Chand Vishwakarma. Sample was seized in presence of Lok Chand Vishwakarma. It has also come on record that sample was taken from possession of Lok Chand Vishwakarma which Shri Dixit admits that he is the driver of petitioner No.1-Mukesh Kumar Gupta. Copy of memo of seizure was provided to Shri Lok Chand Vishwakarma who is the driver of petitioner No.1 and also agent of the petitioner No.1. It is also mentioned in the said order though disputed by Shri Dixit that later on, accused persons were absconding. Since all other accused were absconding, therefore, sample was taken in presence of Lok Chand Vishwakarma. Since on the date of filing of the charge sheet i.e. 13.04.2017, copy of the charge sheet along with FSL report were produced, therefore, petitioners were obliged to move an application within seven days so to exert their right under Section 20 of the Act o 1934. Application was admittedly filed on 0.08.2017. Section 20 of the Petroleum Act reads as under :-
"20. Right to require re-test.- (1) The owner of any petroleum, or his agent, who is dissatisfied with the result of the test of the petroleum may, within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under Section 14 to have fresh samples of the petroleum taken and tested.
(2) On such application and on payment of the prescribed fee, fresh samples of the petroleum shall be taken in the presence of such owner or agent or person deputed by him, and shall be tested in the presence of such owner or agent or person deputed by him.
(3) If, on such re-test, it appears that the original test was erroneous the testing officer shall cancel the original certificate Signature Not Verified SAN granted under section 19, shall make out a fresh certificate, and shall furnish the owner of the petroleum, or his agent, with a Digitally signed by ASHWANI PRAJAPATI Date: 2023.07.05 18:12:09 IST certified copy thereof, free of charge."4
5. Thus, it is evident that there is no provision to condone the delay in filing the application. Admittedly, there was intimation to Lok Chand Vishwakarma about filing of the charge sheet and he was in receipt of the charge sheet. Sample was taken in presence of Lok Chand Vishwakarma. Therefore, since there is no provision to condone the delay in making the application for re-test under Section 20 of the Act of 1934, trial Court has rightly dismissed the application. Said order does not call for any indulgence or interference in the writ or supervisory jurisdiction of this Court.
6. Accordingly, petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE A.Praj.
Signature Not Verified SAN Digitally signed by ASHWANI PRAJAPATI Date: 2023.07.05 18:12:09 IST