Madhya Pradesh High Court
Mohd.Shamim & Ors. vs The State Of M.P on 1 July, 2009
Reported in 2009 (4) MPHT 499
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.820/1994
(1) Mohd. Shamim, aged 22 years,
Son of Mohd. Usman,
Resident of Village Naukheda,
Police Station Dateri, Distt. Vidisha
(2) Shailesh Patel, aged 37 years,
Son of Chandrakant Patel,
Resident of 132, New Bus Stand,
Distt. Sehore
(3) Prakash Chandra Vahne,
Aged 32 years, son of Pundlik Rao Vahne,
Resident of House No.904,
I.T. Bus Stop, Narmada Bhavan,
T.T. Nagar, Distt. Bhopal .......Appellants
vs.
The State of Madhya Pradesh, through SHO,
P.S. Khajuri Sadak, Distt. Bhopal .... Respondent
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Shri S.C. Datt, Senior Counsel with Shri Pushpendra Dubey,
Advocate for the appellants.
Shri J.K. Jain, Govt. Advocate with Shri Arvind Singh, P.L. for
the respondent-State.
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JUDGMENT
(01.07.2009) The judgment dated 05/08/1994 passed by the Special Court {(constituted under Section 12A of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act')}, at Bhopal is the subject matter of challenge in this appeal. Accordingly, each one of the appellants and the co-accused namely Kamal Kumar Malviya and Mohd. Sharif (both since expired), was convicted, under Section 3 read with Section 8 of the Act, and sentenced to undergo R.I. for 6 months and to pay a fine of Rs.200/- and, in default, to suffer S.I. for 1 month. They were found guilty of making an attempt to commit adulteration in respect of High Speed Diesel (for brevity 'the HSD'), :: 2 ::
Criminal Appeal No.820/1994which is a malpractice within the meaning of Rule 2(e) of the Motor Spirit and High Speed Diesel (Prevention of Mal-practices in Supply and Distribution) Order, 1990 (for short 'the Order 1990'). By this judgment only, Mohd. Sharif and appellant Mohd. Shamim were acquitted of the offence punishable under Section 3 read with 7 of the Act for contravention of Clause 3 of the M.P. Kerosene Dealers Licensing Order, 1979 (for short 'Order 1979') and a finding of not guilty was also recorded in favour of Mohd. Sharif for the offence under Section 407 of the IPC. Admittedly, no appeal against the order of acquittal has been preferred by the State.
2. Prosecution story, in short, may be narrated as under: -
(a) At the relevant point of time, appellant Prakash was the Proprietor of the Firm in the name of M/s Khajuri Highway, an authorized 'dealer' of the HSD as defined in Clause 2(c) of the Order, 1990. Its service station situated on Indore Road in Bhopal was being managed by the appellant Shailesh and co-accused Kamal Kumar Malviya was working there as Salesman.
(b) On 27/08/1992 at about 2 p.m., on receipt of credible information that a Tanker full of kerosene was brought to facilitate adulteration of the HSD to be supplied at the service station, N.S. Damle (PW9), the then SHO of P.S. Khajuri Sadak along with other members of the police force and two panch witnesses viz. Bansilal (PW2) and Ajab Singh (PW7) rushed to the spot where he found that -
(i) Tanker bearing Registration No.MBD-8448 and filled with kerosene was parked at the HSD pump.
(ii) A pipe for discharging kerosene from the Tanker into the HSD tank was duly fitted in the corresponding nozzle.
:: 3 ::
Criminal Appeal No.820/1994(iii) Two drums containing 200 litres of kerosene and 200 litres of the HSD respectively were kept near the Tanker.
(c) The Police Officer duly seized the pipe; sealed the Tanker; requested Avtar Singh (PW1), the Inspector, Weights and Measures to measure the volume of kerosene as available in the Tanker and also informed the Oil Company viz. M/s Indian Oil Corporation. Avtar Singh noticed shortage of 530 litres in the total volume of 11000 litres of kerosene, that was entrusted to appellant Mohd. Sharif as driver of the Tanker, on which appellant Mohd. Shamim was working as cleaner, for being transported from the depot of Indian Oil Corporation to the retail outlet run by M/s Bhati Oil Agency at Bairagarh. However, as indicated by Subramanyam (PW3), the Deputy Manager of the Oil Company in the in- house test report (Ex.P/11), the sample of the HSD drawn by Assistant Manager namely Rakesh Kumar Gupta (PW6) from the tank conformed to the standards prescribed.
3. On being charged with the respective offences, the appellants abjured the guilt and pleaded false implication.
4. Although, none of the panch witnesses namely Bansilal (PW2) and Ajab Singh (PW7) came forward to corroborate the prosecution version yet, learned trial Judge while placing reliance on a decision of the Supreme Court in Aher Raja Khima v. State of Sourashtra (AIR 1956 SC 217), concluded that in absence of any motive for false implication, evidence of N.S.Damle could not be underestimated merely because he happened to be a Police Officer.
5. At the outset, learned Senior Counsel, in all fairness, conceded that the finding as to veracity of version given by N.S.Damle is well reasoned. However, he is of the view that the facts proved from the :: 4 ::
Criminal Appeal No.820/1994evidence of the detecting Officer could only amount to preparation to adulterate the HSD. To fortify the contention, reference has been made to the following illuminating observations made by the Apex Court in Abhayanand v. State of Bihar (AIR 1961 SC 1698) -
"There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it falls due to reason beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence."
6. Adverting to the facts of the case, it may be observed that the sample of HSD drawn from the tank was not found to be adulterated. Although, the technical expert viz. Subramanayam (PW3) further opined that it was not possible to detect adulteration if a quantity of 200 litres of kerosene is mixed with 15000 litres of HSD, yet there was nothing on record to prove as to what was the actual quantity available in the HSD tank at the time of the drawing of the sample therefrom. Moreover, Avtar Singh (PW1) clearly admitted that the Tanker comprised 4 compartments, having capacity of 3000, 3000, 3000 and 2000 litres respectively, were found to contain 2750, 2989, 2980 and 1755 litres of Kerosene and it remained unexplained as to how a total volume of 430 litres of kerosene was taken out from these compartments. Further, N.S.Damle also did not specify the compartment from which the Kerosene was proposed to be taken out for being mixed with the diesel.
:: 5 ::
Criminal Appeal No.820/19947. In State v. Parasmal (AIR 1969 Rajasthan 65), an attempt to mix kerosene with the HSD was found proved in view of the fact that the kerosene had already been poured into the tank for being supplied.
But, the case is distinguishable on facts.
8. An attempt to commit an offence is an act, or series of acts, which leads inevitably to the commission of offence, unless something, which the doer of the act or acts neither foresaw nor intended, happens to prevent this. An act done towards the commission of an offence, which does not lead inevitably to the commission of the offence unless it is followed or, perhaps, preceded by other acts, is merely an act of preparation (See. Province of Bihar v. Bhagwat Prasad AIR 1949 Patna 326).
9. Taking into consideration the relative proximity between the act done and the evil consequence contemplated, it could easily be concluded that the appellants had made preparation to commit the violation of the Order 1990. However, the possibility of commission of the offence was not relevant as it is the actual commission of the act in attempting to commit the offence that constitutes the offence of attempt.
10. For these reasons, the appeal is allowed. The impugned convictions and consequent sentences passed against the appellants are hereby set aside. Instead, they are acquitted of the offence. Fine amount, if deposited, be refunded.
11. Appellants are on bail. Their bail bonds shall stand discharged.
Appeal allowed.
(R.C. Mishra) JUDGE 01.07.2009