Bompada Chandrasekhar and another vs State of A.P.

This Criminal Appeal is directed against the judgment dated 18-6-1996 in STC No.l of 1994 on the file of the Sessions Judge-cum-special Judge for Cases under Essential Commodities Act, Vizianagaram.

The appellants were found guilty for the offence u/s 7 of the Essential Commodities Act (for short the Act) read with clause 25 of the A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 for short Order, 1980) and Clause 5 of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 (for short the Order, 1990), convicted and sentenced each of them to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for one month.

The case of the prosecution is (hat A1 Bompada Chandrasekhar is proprietor of M/s. Babu Filling Station, H.P.C. Dealer, Parvathipuram and doing business in petroleum products ami A2 is son of A1 and managing the business. PW3 P. Rama Rao, Inspector of Police, Vigilance, Vizianagaram, on reliable information on 23-6-1993 inspected the business premises of M/s. Babu Filling Station. Parvathipuram at about 9-45 a.m. in the presence of mediators PW2 K. Somulu, Revenue Inspector and another and found the second petitioner attending to the business, inspected the records and found book stock of 3630 litres of High Speed Diesel as opening balance and 1011 litres of Motor Spirit as opening balance on that day and also checked the ground balance and found within permissible limits, then he conducted density test of H.S.D. and found to be 0.8315 and found the density as 0.8519 noted in the invoice. He also conducted density test of Motor Spirit and found to be 0.7286 and found it to be within permissible limits. Then he collected the samples of both Motor Spirit and High Speed Diesel in clean bottles, handed over one such bottle of M.S.D. and M.S. to A2 and sent one set of bottles for analysis and seized stock book, bill books of H.S.D. and M.S. credit coupons, density record in the presence of PW2 under Ex.P3. PW1, ,7. Satyanarayana, Analyst, Indian Oil Corporation analysed the sample and found the density of M.S. at 0.7305 and that of H.S.D. at 0.8343 and compared the density recorded by the dealer on 22-6-1993 as 0.8315 and found to be beyond permissible limits. He also found the density of Motor Spirit as 0.7305 and compared the density recorded by the dealer at 0.7278 and found it within permissible limits and sent report, Bx.P2. PW3 registered a case and issued FIR, F,x.P4 and after completion of investigation, he filed charge-sheet after obtaining permission from the Joint Collector, sanction proceedings.

On behalf of prosecution, three witnesses were examined as PWs.1 to 3 and marked F.xs.P1 to P6. The defence of the accused is that while Section 6A proceedings were pending before the Joint Collector, another sample bottle was sent for analysis and found that the variation is within permissible limits and hence, they have not committed any offence and on their behalf two witnesses were examined as DWs 1 and 2 and marked Exs.D1 to D4.

On considering the material on record, the learned Special Judge found the appellants guilty for the offences aforementioned, convicted and sentenced each of them as slated supra.

Aggrieved by the said conviction and sentence, the appellants preferred this appeal.

The learned Counsel for the appellants submitted that DW2 A.R. Harish Pasha, Deputy Manager, Indian Oil Corporation Laboratory, Sanathnagar examined the density of H.S.D. and M.S. sent by the Joint Collector at the request of the appellant-accused and issued report, Ex.D4 stating that the density is compared with the density recorded by the dealer on 22-6-1993 anci found it within permissible limits and hence, the accused have not committed any offence and the trial Court, without properly appreciating the material on record, erroneously convicted the appellants and he relied on a decision Vinod Kumar Sanghai Vs. State of Madhya Pradesh,

But the learned Public Prosecutor submitted that the sample was taken on 23-6-1993 and immediately sent to the Analyst and found tha the density of IT.S.D. is beyond permissible limits, on analysing the sample nearly after five months the result thereof cannot be taken into consideration as the product should have been changed due to long lapse of time and hence, no credence can be given to such a report and the trial Court has rightly found the appellants guilty, convicted and sentenced them and there is no merit in the appeal.

It is not in dispute that the first appellant is proprietor of M/s. Babu Filling Station doing business in petroleum products at Parvathipuram and A2 was Managing the business at the time of inspection by PW3. It is also not disputed before me about PW3 taking samples of H.S.D. and M.S. from the said filling station and sent one set bottles for analysis. PW1, Analyst, working in Indian Oil Corporation at Visakhapatnam, analysed the sample and found the density of Motor Spirit at 0.7305 and that of High Speed Diesel at 0.8343 and the dealer recorded the density on 22-6-1993 at 0.7278 of M.S. and at 0.8502 of H.S.D. and issued report Ex.P2 stating that the variation of density of M.S. is within permissible limits as the difference is only 0.0027, but so far as the High Speed Diesel is concerned, the difference is 0.0159 and it is beyond permissible limits. It also appears that while Section 6A proceedings were pending before the Joint Collector, the appellant-accused filed a petition to send the sample bottle for the purpose of analysis and the same was sent and DW2. S.A. Hameed, Dy. Manager, Indian Oil Corporation Laboratory, Sanathnagar, Hyderabad, received the same bottles on 2-12-1993, tested the sample and found the density of Motor Spirit at 0.7294 and that of High Speed Diesel at 0.8519 and issued report, Ex.D4.

The density recorded by the Dealer with regard to the H.S.D. on 22-6-1993 is 0-8502 and the variation is only 0.0017. If the density, as found by DW2 is taken into consideration, them it is within permissible limits.

The only consideration is whether the density found by DW2 on testing the sample bottle on 2-12-1993 can betaken into consideration in deciding the guilt or otherwise of the appellants.

This Court had an occasion to consider whether the dismissal of the petition filed by the accused requesting to send the sample to another Analyst, is proper or not; and held that the dismissal of the said petition is erroneous and directed the Trial Judge to send the sample for analysis as requested by the appellant-accused-petitioner and thus observed in paras 5 and 6 of its judgment in M. Chakravarthi and another v. State. 1991 (2) APLJ 336, as under:

"..The dismissal of the petition on the ground that there is no provision in the order is erroneous. The very fact that the Vigilance Authorities while seizing the sample have kept one bottle with the accused shows that the said bottle is intended to give a right to the accused to exercise their option of sending the sample for fresh analysis if they are not satisfied with the analysis made by the Indian Oil Corporation Test Laboratory Hyderabad otherwise keeping of one sample bottle with the accused is meaningless. Hence, it is held that the petitioners-accused have got a right to request the Special Judge for cases arising under Essential Commodities Act to send the sample given to them to any other Laboratory.."

The Madhya Pradesh High Court in Vinod Kumar Sanghai''s case held that when the Inspector had taken three samples of H.S.D. from the Petrol Bunk of the petitioner on 13-7-1992 and the Public Analyst, on examination, reported to have found the High Speed Diesel not upto the standard prescribed in the Control Order, and on the request of the accused third sample bottle was sent to another Analyst and lie did not find any sub-standard material and it was found to be of the prescribed standard, in the said circumstances, the Madhya Pradesh High Court quashed the criminal proceedings when the charge was framed against the petitioner stating that there is no prima facie material to proceed against the petitioner. Thus, even though there is no provision in the State Order, 1980 or the Central Order, 1990, when the sample was sent to the Analyst and the report discloses that there is no variation of the density beyond permissible limits, then it cannot be said that the petitioners have committed any offence, as alleged by the prosecution.

The other contention of the learned Public Prosecutor is that DW2 analysed the sample nearly after five months. DW2 was cross examined on that aspect and he categorically stated that the seals were intact and in case of diesel, there is no possibility of variation of density where there is no passage of air in the bottle or any foreign material. DW2 is also Deputy Manager, Indian Oil Corporation Limited, Sanathnagar, Hyderabad, which is also one of the laboratories mentioned in Schedule III at item No.38, to test the H.S.D. and thus DW2 is a competent person to analyse the density of H.S.D., as per the Schedule appended fo the Central Order, 1990. If the material on record discloses that due to long lapse of time, there is possibility of variation of the product, consequently if the density also can be changed, then the second report cannot be taken into consideration in deciding the guilt or otherwise of the appellants. But as already observed, the evidence of DW2 clearly shows that there is no possibility of variation of density, so far as H.S.D. is concerned, except where there is passage of air and the seals were found intact, hence, there is no passage of air, in the said circumstances, I do not find any valid material to reject the report of DW2-under Ex.D4. When two analyst reports arc available on record, it is settled principle of law that the report which is favourable to the accused should be taken into consideration. As already observed, if Ex.D4 is taken into consideration, the density of the High Speed Diesel is only 0.0017 and it is within permissible limits and thus the prosecution has failed to prove guilt of the accused beyond ail reasonable doubt.

Therefore, in the light of foregoing discussion, it emerges that if there is no change of nature of the product by the time of second analysis and if it is found that the density is within permissible limits, it cannot be said that the accused have committed any offence.

Therefore, the appeal is allowed, the conviction and sentence awarded against the appellants-accused are set aside and they are found not guilty and acquitted. The tine amount, if paid, is ordered to be refunded after expiry of revision time.