Karnataka High Court
Syed Wajid vs State By Bytarayanapura Police on 7 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE Mrs. JUSTICE S.SUJATHA
CRL. RP. NO.10/2011
BETWEEN
Syed Wajid S/o Syed Sadiq,
Aged Major, R/at No.342/1,
Opp.GEF Post Office,
Mysore Road, Bangalore. ... Petitioner
(By Sri. Satish V Advocate for
Sri. Mohammed Jaffar Shah)
AND
State by
Bytrayanapura Police. ... Respondent
(By Sri.S.Rachaiah-HCGP)
This Crl.R.P. is filed U/s.397 r/w 401 Cr.P.C to set
aside the order dated 10.11.2009 passed by the III Addl.
C.M.M., Bangalore City in C.C.No.4316/2008 and order
dated 28.10.2010 passed by the P.O., FTC (Sessions)-XI,
Bangalore in Crl.A.No.974/2009.
2
This Crl.R.P coming on for 'final hearing' this day,
the Court made the following:
ORDER
This Criminal Revision Petition is filed by the appellant/accused under Section 397 r/w 401 Cr.P.C. challenging the order of conviction passed in C.C.No.4316/2018 dated 10.11.2009 by the III Additional Chief Metropolitan Magistrate, Bangalore City, confirmed by the order of the Fast Track Court (Sessions)-XI, Bangalore in Crl.A.No.974/2009 dated 28.10.2010. Petitioner/accused is convicted under Sec. 248(2) of Cr.P.C. for the offences punishable under Sections 3 and 7 of Essential Commodities Act, 1955 (for short 'Act') and 2(a) and 2(e) of the Motor Spirit and High Speed Diesel Order, 1998 (for short 'Order').
2. The case of the prosecution is that on 30.09.2004 at 12.30 pm, Bapuji Petrol Bunk, Mysore Road, Bangalore run by the accused-Sri. Syed Wajid, was 3 inspected by the CW1 and it was found that accused was in possession of adulterated petrol and diesel in contravention of Sec. 2(a) and 2(e) of the order. On the complaint filed by PW2-Sri. Siddaiah, Deputy Director of Food and Civil Supply Department, West-Range, criminal action was set in motion. The accused not having pleaded guilty on the charges framed, trial commenced. Prosecution has examined seven witnesses as PW1 to 7 and got marked exhibits, Ex.P1 to 6. No evidence was led in by the accused. On appreciation of evidence learned Magistrate convicted the accused and sentenced him for 6 months simple imprisonment for the offences punishable under Sections 3 and 7 of the Act and 2(a) and 2(e) of the Order.
3. Being aggrieved by the same, the accused/petitioner preferred a criminal appeal bearing Crl.A.No. 974/2009 which came to be dismissed by the learned Sessions Judge by his order dated 28.10.2010. 4 The legality and correctness of this order is challenged by the petitioner in this criminal revision petition.
4. Sri. Satish V, learned counsel appearing for petitioner vehemently argued on the following points:
Firstly, it was submitted that Mr.Jagadeeshan, Deputy Manger (Lab) who conducted the mobile lab test on 30.09.2004 has not been examined. Non examination of this person invalidates Ex.P.1-mobile lab test report referred to by the complainant as well as reliance placed on by the prosecution.
Secondly, it was argued that no mahazer was conducted on 30.09.2004 as such, the alleged inspection/raid said to have been conducted by the HPCL Officer and his staffs, BPC and IOC Company is shrouded with doubt.
Thirdly, it was argued that the mobile lab test report-Ex.P1 and sample-Ex.P3 are referable to the period prior to drawing of mahazer on 02.10.2004 5 which indicates that there was no report of motor spirit conducted in terms of the required procedure.
Fourthly, it was argued that no order has been passed under Sec. 3 of the Act to convict the accused under Sec.7 of the said Act.
5. Thus, it was submitted that the prosecution has utterly failed to prove the committal of offence by the accused beyond reasonable doubt. The courts below, appreciating these vital aspects, convicted the accused invoking section 7 of the Act. It is further submitted that the accused is entitled to the benefit of the Probation of Offenders Act, 1958, since the petitioner is a first offender and no other criminal cases are pending against the accused. Further it is submitted that subsequent to the inspection in question, the accused has closed his petrol bunk and he is not carrying on the business of motor spirit. Thus, the learned counsel seeks to set aside 6 the orders passed by the courts below for the reasons aforesaid.
6. In support of his contention, the learned counsel for the petitioner relied on the decision reported in AIR 1970 CALCUTTA 167 in the case of Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Prohlad Agarwall.
7. Per contra, the learned HCGP appearing for the respondent supports the impugned orders. Learned HCGP would point out that Ex.P.1-mobile lab test report was prepared by PW1-T.Srinivas, HPCL Officer and the said officer was examined by the prosecution. Nothing positive is elicited in the cross examination of said witness to discard the case of prosecution. It is on the complaint lodged by PW2-Siddaiah on 01.10.2004, mahazer was drawn on 02.10.2004 in the presence of panchas and one pancha-PW7-Nagendra Pandit was examined to support the case of prosecution. The 7 evidence of witnesses i.e., P.W.1 to 7 coupled with documents Ex.P1 to P6 clearly establishes the offence committed by the accused/petitioner under Sections 3 and 7 of the Act, read with 2(a) and 2(e) of the Order and hence, the orders passed by the courts below do not call for any interference by this Court.
8. I have given my anxious consideration to the arguments of the learned counsel appearing for both the parties and perused the materials on record.
9. As regards non-examination of Mr.Jagadeeshan, Deputy Manager (Lab) it would be significant to note that Ex.P.1-mobile lab test report prepared by T.Srinivasa, HPCL officer demonstrates the adulteration of the motor spirit found at the time of inspection. The said mobile lab test report of motor spirit shows the required final boiling point as 215 degree centigrade. However, on the test conducted, it was found as 281 degree centigrade. On the basis of this report, 8 complaint was lodged on 01.10.2004 which culminated into criminal investigation. Ex.P2- Spot Mahazer and other documents Ex.P3 to P6 prove the offences committed by the accused beyond reasonable doubt.
10. PW1 is the HPCL Officer who has issued the certificate as per Ex.P1 who has been examined and non examination of Jagadeeshan is not fatal to the case of the proceedings as aforesaid. Mahazer was drawn on 02.10.2004 and it cannot be stated that the entire proceedings initiated by the BPC and IOC Company officers are doubtful. It is obvious that the sample of the motor spirit shall be collected at the time of inspection and the mobile test lab has to be conducted, based on the test report, decision has to be taken inasmuch as the inconsistency or violation of any order/notification issued under Sections 3 or 5 of the Act.
11. Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of 9 Malpractices) Order, 1998 dated 28.12.1998 has been issued by the Ministry of Petroleum and Natural Gas, New Delhi, the in exercise of the powers conferred under Section 3 of the Act. Clause 2 of the said order runs thus:
"a). "adulteration" means the introduction of any foreign substance into motor spirit/high speed diesel illegally or unauthorized with the result that the product does not conform to the requirements and specification of the product indicated in Schedule I:
b). ........
c). ........
d). ........
e). "malpractices" shall include the following acts of omission and commission in respect of motor spirit and high speed diesel:
i. adulteration
ii. Pilferage
iii. Stock variation,
iv. Unauthorized exchange
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v. Unauthorized purchase
vi. Unauthorized sale
vii. Unauthorized possession
viii. Over-charging
ix. Sale of off-specification product;
12. A bare reading of this Order issued exercising the power under the Act establishes that the accused has committed offences under Section 3 of the Act, indulging in the act of adulteration of motor spirit. Learned counsel for the petitioner emphasized on the decision of Superintendent and Remembrancer of Legal Affairs [supra], to point out that the order under Section 3 of the Act is sine-qua-non for convicting the accused under Sec.
7 of the Act. There is no cavil on this legal proposition. The Hon'ble Calcutta High Court in the case referred to supra, while considering the case of a person convicted under Sec. 7 of the Act, held that the said provisions of Sec. 7 can be invoked only when it is proved that there is contravention of any order made under Sec. 3 of the Act. There being no such contravention of direction given 11 under notification/order issued in exercise of the power under Article 14 of the Iron and Steel (Control), 1956 which was the subject matter of that appeal, observed that the alleged offence of contravention of Sec. 3 of the Act was not punishable under Sec. 7 of the Act. However, in the present set of facts, it is manifest that Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 has been issued under Sec. 3 of the Act and it is also proved beyond doubt that there was contravention of the said order. In the circumstances, the proceedings initiated under the provisions of Sec. 7 of the Act for convicting the accused in proof of contravention of Sec. 3 of the Act cannot be said to be unsustainable. The Judgment of Hon'ble Calcutta High Court is distinguishable and is not applicable to the present facts of the case.
13. In view of the aforesaid discussion, this Court is of the considered opinion that the committal of the 12 offence by the petitioner under Sections 3 and 7 of the Act is proved beyond doubt.
14. However, In considering the submission of the learned counsel for the petitioner that the business of the motor spirit has been closed subsequent to the inspection in question and no other criminal cases are pending against the accused, not being controverted by the State, the quantum of sentence awarded by the learned Magistrate, confirmed by the Sessions Judge requires modification. Accordingly, minimum sentence of imprisonment of three months would be appropriate in the considered opinion of this Court. Hence, following:
ORDER
(i) Criminal Revision petition filed by the petitioner is allowed in part.
(ii) The accused is convicted for the offences punishable under Sections 3 and 7 of Essential Commodities 13 Act, 1955 and 2(a) and 2(e) of the Motor Spirit and High Speed Diesel Order, 1998.
(iii) The order regarding sentence of the Courts below awarding six months simple imprisonment is modified and reduced to three months simple imprisonment.
(iv) The bail granted by this Court on
25.02.2011 stands cancelled.
Accused shall undergo sentence of
three months simple imprisonment.
Sd/-
JUDGE
JS/-