M/S. Ipour Gkc And Rkc & Sons & Anr vs State Rep.By Station House Officer

2 The prosecution case is that on 15-07-1984, at about 6

p.m. one tanker lorry PYZ-5699 was brought to the check post

from Madras reporting import of 11,000 litres of Kerosene to

Al firm and the driver also paid octroi of Rs.l10/- vide receipt

No.966260 dated 15-07-1984. After looking at the invoice No.

6124 dated 01-07-1984, which has been marked as Ex.P2

Series, the authorities entertained suspicion because the

dispatch was on 14.7.1984 and when they checked the vehicle

they found it empty. Therefore, the driver was questioned,

who gave statement (Ex.P3) written in his own hand writing,

but did not sign and escaped with A4 cleaner. Therefore, a

case was registered against A1 firm as well as A2 partner

alongwith driver and cleaner besides charging A5, A6 & A7

who are the retail sellers of kerosene to whom A1 claimed to

have sold the kerosene.

The trial Court on consideration of the evidence came to

hold that the accusations have not been established. The

State of Pondicherry filed an appeal before the High Court

questioning the judgment of acquittal recorded by the trial

3 court. By the impugned order the High Court set aside the

acquittal so far as the present appellants are concerned while

dismissing the same qua the other five co-accused persons.

3. Learned counsel for the appellant submitted that the

High Court has lost sight of the fact that the ingredients

necessary to bring in application of clause 13 of the Control

Order have not been established and, therefore, the conviction

as recorded by the High Court cannot be sustained. It is

pointed out that the basis for the proceeding against the

appellant was alleged statement of A3, who has been

acquitted by the trial court and the same has been upheld by

the High court.

4. Learned counsel for the respondent-State on the other

hand submitted that the appellants produced certain

documents to show receipt of the 11,000 litres of kerosene.

But on verification it was noticed that those documents are

not relatable and, therefore, the High Court was justified in

finding the appellants guilty.

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5. Clause 13 of the Control Order reads as follows:

"13. Restriction on sale of kerosene - No wholesale dealer shall sell kerosene, except to another wholesale dealer licensed under this order or to registered dealer or to any institution or person approved by the licensing authority. Such sales shall be in such quantities and at such intervals, as the licensing authority may, by general or special order, direct."

6. A bare perusal of the provision shows that it is relatable

to sale. Both the trial Court and the High Court held that A3 is

purportedly to have made a statement that he had sold the

kerosene on the way. Similar statement was purportedly

given by A4. But the officials proceeded to act on the

aforesaid statements which were undisputedly not signed

statement. Apart from the fact that the said statement did

not in any way implicate the appellants, the effect of such

statement to find the appellants guilty has been lost sight of

by the High Court. The trial court found that there was no

evidence to show and no steps were taken and no

investigation was focused, as to whether the articles were sold

5 on the way. The categorical findings of the trial Court and the

High Court were that no such sale took place. Even if the

stand of the prosecution is accepted that the receipt was not

established that would in a sense relate to the purchase and

not to sale and, therefore, Clause 13 read with Section 7 of the

Essential Commodities Act, 1955 (in short the `Act') do not

have any application. The trial Court was, therefore, justified

in directing acquittal of the appellant and the High Court

without properly analyzing the legal position directed

conviction which cannot be maintained.

7. The appeal is allowed. The bail bonds executed by the

appellants for release on bail, pursuant to the order dated

20.4.2008 shall stand discharged.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, August 28, 2008

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