BACHCHU LAL YADAV vs STATE OF MP

This application under Section 482 Cr.P.C. is filed for quashment of show cause notice dated 03.12.2015 issued by Additional Collector, District-Indore, under para-3(7) and 4(1) of Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order Act, 1980 and Section 3/7 of Essential Commodities Act and also the FIR arising out of Crime No.605/2015 dated 07.11.2015, Police Station-Kanadiya, DistrictIndore, under Section 3/7 of Essential Commodities Act, 1922.

The relevant facts are that the present applicant is the owner of the vehicle bearing registration No.MP09 GG 1465 of Mahindra Bolero Pickup. A tank of 2000 liters capacity having two compartments of 1000 liters each, had been mounted on the vehicle. The fitness certificate was issued by RTO, Indore.

The Emerald Heights International School, Lawrence School and Shishukunj School were all situated on the outskirts of Indore city have a large fleet of school buses, which were used for bringing students to schools. They required large quantity of high speed diesel, and therefore, the schools submitted an application to District Magistrate stating therein difficulties faced in sending all the buses to petrol pump for refueling. The schools sought permission for transportation of fuel from the petrol pump to their respective parking areas through a tanker having capacity of 2,000 liters. The application was filed on 14.05.2015. In response to this application, the District Supply Controller issued a letter dated 25.07.2015 to the said schools, in which, it was informed that transportation and storage of diesel is governed by the Petroleum Act, 1934 and Petroleum Rules, 2002 and the schools were directed to act as per the provisions of Act under the said rules.

The aforementioned schools engaged the present applicant for transportation of diesel to fulfill their requirement.

The incident took place on 07.11.2017. The First Information Report was lodged by one Vijendra Singh S/o Hemendra Singh Solanki, who was Personal Secretary of Food and Civil Supply Minister Shri Vijay Shah. It was stated in the FIR that on 07.11.2015 at about 8:30 am in the morning, the Minister Vijay Shah was passing through Kanadiya square, in front of Shanti Niketan Indore. The Minister saw the present applicant transporting high speed diesel in Bolero Pickup bearing registration No. MP09 GG 1465. The present applicant alongwith the vehicle was sent to the police station at the instruction of the minister where a written complaint was filed by said Vijendra Singh. On the basis of this written intimation, the FIR was registered in Crime No.605/2015 under Section 3/7 of Essential Commodities Act, was registered.

The Additional Collector issued a show cause notice dated 03.12.2015 to the present applicant stating therein that the tanker, in which 1800 liters of diesel which was purchased from M/s Saheed Narendra Singh Petrol Pump on 07.11.2015 by a bill No.26264, was not registered as tanker and the transporting of the high speed diesel was found to be in contravention of Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980. The paragraph 3(7) and 4(1) was mentioned in the show cause notice. After completing the investigation, charge-sheet was filed.

This application is filed for quashment of the FIR arising out of Crime No.605/2015 on the ground that under Section 7 of Petroleum Act, 1934, no license is required for transporting high speed diesel up to 2500 liters when they are contained in receptacle and not exceeding the capacity of 1000 liters. It is also filed on the ground that there was no violation of para-3 and 4 of said order issued under Section 3/7 of Essential Commodities Act.

Learned counsel for the State opposed the application.

I have gone through the various provisions of Petroleum Act, 1934 hereinafter called the Act. The Section 2 (bb) provides definition of "Petroleum Class B" as under:- "2. Definition- In this Act, unless there is anything repugnant in the subject or context.

(a) ---------------------------------------------

(b) ---------------------------------------------

(bb) "petroleum Class B" means petroleum having a flash point of twenty three degrees centigrade and above but below sixty-five degrees centigrade;

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Section 7 of the Act provides as under:-

"7. No licence needed for transport or storage of limited quantities of petroleum Class B or petroleum Class C- Notwithstanding anything contained in this Chapter, a person need not obtain a licence for the transport or storage of-

(i) petroleum Class B if the total quantity in his possession at any one place does not exceed to two thousand and five hundred liters and none of it is contained in a receptacle exceeding one thousand liters in capacity; or

(ii) petroleum Class C if the total quantity in his possession at any one place does not exceed forty-five thousand liters and such petroleum is transported or stored in accordance with the rules made under section 4"

Para-3(7) of Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, provides as under:

"3. Regulation of Sale and Supply of Motor Spirit and High Speed Diesel Oil.

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(7) No person, other than a dealer or an oil company, shall sell oil to a user and a user shall not draw his requirement of oil except from a dealer or an oil company".

Para-4(1) of Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, provides as under:-

"4. Licensing of Dealer-

(1) No person shall carry in business as a dealer in oil except under and in accordance with the terms and conditions of a Licence issued in this behalf by the Licensing Authority".

As per specification of normal high speed diesel oil (not high flash HSD) as available on Internet site of Bharat Petroleum i.e. wwwbharatpetroleum.Com. The minimum flash point of normal HSD is 35? C, and therefore, it falls in the category of petroleum Class B. So far as the facts stated in the FIR in this case are concerned, the present applicant was found only transporting the diesel oil as mentioned in the show cause notice given to him by Additional Collector. It was mentioned that diesel oil was purchased by a regular dealer from a cash memo. The cash memo by which, the diesel oil was purchased stood in the name of Emerald School and not in the name of the present applicant. This apart, learned counsel for the applicant pointed out that anticipating a problem, the management of Emerald School wrote a letter to the Collector, District-Indore on 14.07.2015, which is enclosed as Annexure-P-5. In this letter, it was expressed by the management of the school that as many as 54 buses are maintained by the institution and there is also one generator set for it, large quantity of HSD is required, and therefore, a permission was sought for bringing in the premise of the school HSD in a tanker having capacity of 2000 liters to be used in the buses. A reply to this letter, the Collector informed them by letter dated 28.07.2015 enclosed as Annexure-P-6 that for transportation and storage of high speed diesel control provision in Petroleum Act, 1934 and Petroleum Rules, 2002 and they were advised to act accordingly.

Learned counsel for the applicant argues that so far as the relevant provisions quoted above was concerned, no violation of any rules or order issued under Section 3/7 of Essential Commodities Act was made by the present applicant, and therefore, the FIR itself does not show any commission of offence and liable to be quashed.

I have gone through the charge-sheet and after taking into consideration the arguments of both the counsel and taking into consideration the statutory provisions, I find that FIR arising out Crime No.605/2015, Police Station-Kanadiya does not disclose commission of a cognizable offence. It is therefore, liable to be quashed. Accordingly, this application is allowed. The FIR arising out Crime No.605/2015 Police Station-Kanadiya under Section 3/7 of Essential Commodities Act is hereby quashed. The notices issued to the present applicant by Additional Collector is also quashed. The present applicant stands discharged under aforesaid provisions of law.