Madhya Pradesh High Court
Kamlesh vs The State Of Madhya Pradesh on 31 July, 2018
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HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH: HON. SHRI JUSTICE RAJEEV KUMAR DUBEY,J.
MCRC No.4524/2008
Kamlesh & others
Versus
State of Madhya Pradesh
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Shri S.C. Datt, Senior Counsel with Ms. Kishwar Khan, Advocate for
the applicants.
Shri Akhilendra Singh, Government Advocate for the
respondent/State.
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ORDER
(Reserved on 19/07/2018) (Delivered on 31/07/2018) This petition has been filed under Section 482 of the Code of Criminal Procedure against the order dated 8/8/2007 passed by Special Judge, Katni in Cr. Revision No.2/2007 (State of M.P. vs. Kamlesh & 6 others) whereby learned Special Judge set aside the order dated 05/02/2004 passed by JMFC Katni in Cr. Case No.494/2000 whereby learned JMFC discharged the applicants/accused from the charge punishable under Section 420 of the IPC and 3/7 of the Essential Commodities Act and remanded the case to JMFC with the direction to again pass a fresh order again after hearing both the parties.
2. Brief facts of the case which are relevant to the disposal of this case are that on 4/6/1999, on the information of the informant that applicant no.5 Balmukund owner of firm M.B.M.C. Bulk Carrier, Katni was illegally mixing kerosene oil in the diesel in the godown situated at Jalpa Ward (Purana Tilak Ward), Katni, S.H.O. P.S. Katni, Anil Vaidya along with Food 2 Inspector R.P. Sharma, S.K. Tiwari and Pramod Pandey and other members of police force went to the spot, where they found tanker bearing registration no. MOJ-7878 filled with blue kerosene oil and tankers bearing registration nos. MP21-7161, MP 21-7155 and MP 21-7050 filled with diesel standing there. The seals of all four tankers were tempered and applicants/accused no.1 to 4 Kamlesh, Vrindavan, Tejilal Sahu and Ramji, Manager of the said firm were present there and were mixing blue kerosene oil from tanker no. MOJ-7878 into the diesel of tanker no. MP 21-7155. Applicant no.4 Ramji informed the raiding party that the godown was owned by applicant no.5 Balmukund. Firm M.B.M.C. Bulk Carrier Katni runs the business of transporting diesel and furnace oil and they were mixing the blue kerosene oil in diesel at the instance of applicant no.5 Balmukund. On that, R.P. Sharma, Food Inspector took samples from all four tankers and seized all four tankers and two Electric Motors with the help of which the kerosene oil was being transferred from tanker no. MOJ-7878 to tanker no. MP 21-7155 in which the diesel was already filled and also seized 26000 liters of diesel and 6000 liters of blue kerosene oil. He also prepared the memo of the action taken on the spot and lodged the report of the incident at P.S. Katni and also sent the report of the incident to the Collector Katni. On that, police registered Crime No.376/1999 for the offence punishable under Section 420 of the IPC and Section 6A and 3/7 of the Essential Commodities Act, for contraventions of clause 3(1),3(2) and 5 of The Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1990, clause 3(1)and 3(2) of Kerosene (Restriction on Use and Fixation of Sealing Price) Order, 1993(for brevity "the Order 1993) and clause 3(1) of M.P. Kerosene Dealers (Licensing) Order, 1979 (for brevity "the Order" 1979). Police also sent the samples to laboratory for chemical analysis from where the report to the effect that the sample of 3 diesel taken out from tanker no. MP 21-7155 was found adulterated and seized kerosene was blue in colour was received. After investigation, police filed a charge sheet against present applicants and Gopal Das (who died during the pendency of Revision) before the JMFC Katni.
3. Learned JMFC by order dated 5/2/2004 discharged the applicants observing that according to clause 4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution Prevention of Malpractices) Order, 1998 (for brevity "the Order 1998") only the gazetted officer of Central and State and D.S.P. can take the sample of diesel, Food Inspector has no authority to take the sample likewise prosecution did not sent the analysis report of seized diesel and kerosene to the applicants, and did not send samples for reanalysis and a valuable right of the applicants was denied by the prosecution. So from the charge sheet, cognizance for the offences punishable under Section 3/7 of the Essential Commodities Act can not be taken against the applicants and the offence under Section 420 of the IPC is also not made out from the charge sheet. Being aggrieved from that order, the State filed Cr.R.no.2/2007 before the Sessions Court, which was disposed of by the Special Judge vide order dated 08/08/2007 whereby the learned Special Judge set aside the order passed by JMFC Katni and remanded the case back to JMFC with the direction to again pass a fresh order that after hearing both the parties. Being aggrieved by that order the applicants filed this revision.
4. Learned counsel for the applicants submitted that although in the charge-sheet, it is mentioned that the violation of provisions of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1990 was found but before the incident, the Motor Spirit and High-Speed Diesel (Regulation of Supply and 4 Distribution and Prevention of Malpractices) Order, 1990 had been repealed by the Motor Spirit and High-Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 incident and at the time of incident the later order was in force. So, the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 will apply and the prosecution did not produce any document and material on record from which it appears that the proceedings of the seizure were made by the competent authority mentioned in Section 4 of the said order. Apart from that, applicants filed an application for re-analysis of the samples but prosecution did not send the samples for re-analysis after repeated requests of the applicants and the applicants were denied a valuable right by the prosecution. So charges under section 3/7 of Essential Commodities Act can not be framed against the applicants. Thus, learned JMFC rightly discharged the applicants. Learned special Judge without appreciating these facts wrongly set aside the order of JMFC. So order be quashed. In this regard, he also placed reliance on this Court judgement passed in Mohd.Shamim and others Vs State of M.P. reported in 2009(4) M.P.H.T. 449.
5. On the other hand, learned counsel for the State opposed the prayer and submitted that sufficient evidence was available on record to frame the charge against the applicants. Learned Special Judge after appreciating all the facts and circumstances of the case rightly passed the impugned order.
6. This Court has gone through the record and the argument advanced by the learned counsel for both the parties. Hon'ble Apex Court in his judgment passed in Sajjan Kumar Vs CBI report in (2010) 9 SCC 368 after considering our earlier judgements held as under;
5On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
vi) At the stage of Section 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that 6 the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
Which shows that if on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge. Even on the basis of grave suspicion against the accused which has not been properly explained, the Court can frame the charge.
7. Although, according to Section 4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution Prevention of Malpractices) Order, 1998 action under this order only can be taken by the -
" Any Gazetted Officer of the Central or State Government or any Police Officer not below the rank of Deputy Superintendent of Police (DSP) duly authorised, by general or special order by the Central Government or State Government as the case may be or any Officer of the concerned Oil Company not below the rank of Sales Officer.
8. While in this case, the raid was conducted by the Food Inspector and police Inspector. There is no evidence on record to show that they were legally authorised, by the State Government for conducting such raid according to clause 4 of the order and it is also clear from the record that in spite of the order of the Sessions Judge passed in Cr.R. No.325/1999 prosecution did not send sample for re-analysis and did not comply the provisions of section 20 of Petroleum Act.
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9. But in the charge sheet, it is also mentioned that applicants also violets the provisions of clause 3(1)and 3(2) of Kerosene (Restriction on Use and Fixation of Sealing price) Order 1993 and clause 3(1) of M.P. Kerosene Dealers(Licensing) order,1979 (for brevity "the Order 1979") .
Clause 3.(1) and (2) of Kerosene (Restriction on Use and Fixation of Sealing price) Order 1993. reads as thus;- Restriction on use of kerosene supplied under public distribution system:-
(1) No person shall use kerosene supplied under the public distribution system for any purpose other than cooking and illumination:
Provided that the Central or State Government may by order permit any person to use kerosene for such other purposes as it may specify in that order.
(2) No dealer appointed under the public distribution system or a transporter shall sell, distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for;
And clause 3(1) of M.P. Kerosene Dealers(Licensing) order,1979 (for brevity "the Order 1979) reads as under:
3. Licensing of Dealers.-(1) No person shall carry on business as a dealer in Kerosene except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority.
Food inspector is empowered to act under Kerosene (Restriction on Use and Fixation of Sealing price) Order 1993 according to Gazette Notfn.No.S.O. 509(E), dated 7/7/1994, Pub.in M.P. Rajpatra, Pt.I, dated 27- 10-1995, p. 1746 and also empowered to act under M.P. Kerosene Dealers(Licensing) order,1979 according to clause 18 of the order.
Clause 3(1) of the order 1993 clearly says that No person shall use kerosene supplied under the public distribution system for any purpose other than cooking and illumination. While in the case diary statement of the 8 prosecution witnesses i.e. R.P. Sharma, S.K. Tiwari and Pramod Pandey it is mentioned that on the date of incident when they reached on godown of firm M.B.M.C. Bulk Carrier Katni situated at Jalpa Ward (Purana Tilak Ward), Katni they found tanker bearing registration no. MOJ-7878 filled with blue kerosene oil (The Kerosene supplied for public distribution system) and tankers bearing registration nos. MP21-7161, MP 21-7155 and MP 21-7050 filled with diesel standing there. The seals of all four tankers were tempered and applicant/accused no.1 to 4 Kamlesh, Vrindavan, Tejilal Sahu and Ramji Manager of the said firm were present there and were mixing the blue kerosene oil from tanker no. MOJ-7878 into the diesel of tanker no. MP 21- 7155. Applicant no.4 Ramji informed the raiding party that the godown was owned by applicant no.5 Balmukund. His Firm M.B.M.C. Bulk Carrier Katni runs the business of transporting the diesel and furnace oil and they were mixing the blue kerosene oil in diesel at the instance of applicant no.5 Balmukund.
10. In the test report, it is also mentioned that the sample was of blue Kerosene. Although, learned counsel of the applicants submitted that the applicants did not get the opportunity of getting the sample re-tested. But, it is not mentioned in the report that sample of kerosene was adulterated. Only what is mentioned is that the sample sent for analysis was of blue kerosine. The JMFC has also recorded the confession of applicant/accused Kamlesh and Ramji Dubey. In their statements, it is mentioned that they were mixing Blue kerosene in the diesel at the time of incident. In these circumstances, whether any prejudice was caused to the applicant because of denial of opportunity of retesting of the samples and what was its impact is a matter of evidence and only on that ground applicants can not be discharged at this stage. Although, learned senior counsel of the applicants also submitted that at the time of recording the confessional statements of applicants/accused 9 Kamlesh and Ramji Dubey, learned JMFC did not follow the procedure established by law for recording the confessional statements of accused persons. So, that statement can not be read in evidence against the applicants but at the time of recording, the statement of applicants whether learned JMFC followed the provisions of law or not and what is the evidentiary value of these statements is also a matter of evidence. It can be considered for framing charge.
11. The facts of the case Mohd. Shamim and others Vs State of M.P. (Supra) relayed by the learned senior counsel of the applicant do not match with the present case, in that case there was no evidence on record to show that accused mix the kerosene with diesel. But, in this case the statement of prosecution witnesses and confessional statement are on record. What is their evidentiary value it will decided after evidence. Even in this case, violation of provisions of clause 3(1) and 3(2) of Kerosene (Restriction on Use and Fixation of Sealing price) Order 1993 and in the report, it is also mentioned that 6000 liter blue kerosene was also seized from the possession of the applicants no. 1 to 4. So, that judgement do not help applicants much.
12. In the considered opinion of this Court, learned trial court without considering the facts as discussed above wrongly discharged the applicants. So, learned Special Judge did not commit any mistake in remanding the case to JMFC with the direction to again pass a fresh order after hearing both the parties.
13. Hence, petition is dismissed.
(RAJEEV KUMAR DUBEY) JUDGE m/-
Digitally signed by MONIKACHOURASIA Date: 2018.07.31 10:29:42 +05'30'