Om Prakash Jain vs State Of Rajasthan

Arun Monga, J

Challenge herein is to an order dated 18.07.2022 passed by the learned Additional District Magistrate-I, Jodhpur (hereinafter referred to as the ‘ADM’), whereby offending vehicles under Section 3/7 of the Essential Commodities Act, 1955 were though allowed to be released on superdari but the diesel contained therein was directed to be kept in police custody on providing of storage drums by the petitioner.

The relevant facts of the present case are that the SHO, KudiBhagtasani, Jodhpur (West) intercepted a tanker bearing No. RJ-19 GC-1254 near Mogra bridge, Jodhpur, suspecting theft of oil. Upon inspection, the SHO found that the tanker was transporting 6,300 litres of diesel illegally.

The tanker in question, along with 6,300 litres of diesel, was seized by the SHO on 04.06.2021 under the accusation of theft. A case was registered under the provisions of Section 3/7 of the Essential Commodities Act, 1955, against the owner of the tanker.

The petitioner, who is the owner of the tanker, filed an application under Section 457 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”), requesting the release of the tanker No. RJ-19 GC-1254 and the diesel contained therein on supurdaginama (custodial bond).

The learned ADM ordered the release of the tankers on the following surety and bond conditions:

Tanker RJ 19 GA 1052: ₹5,00,000 (five lakh rupees)

Tanker RJ 19 GA 0638: ₹4,00,000 (four lakh rupees)

Tanker RJ 19 GC 1254: ₹8,00,000 (eight lakh rupees)

Other conditions for Release:

No alterations or sale of the vehicles until the case is resolved.

The applicant must produce the vehicles in court when required.

The applicant must provide drums to empty approximately 6,300 litres of allegedly illegal diesel from the vehicles.

The vehicles were thus allowed to be released but the Diesel contained therein has been directed to be kept in police custody.

Mr. Moti Singh, counsel for the petitioner, argued that the petitioner was transporting the diesel with all necessary documents, including a valid bill and permit, and therefore, the diesel could not have been confiscated or detained by the police. He asserted that all documents were in order, and no valid case was made out against the tanker. He contended that the rejection of the application by the ADM was based on flimsy and unsustainable grounds.

He further argued that the lack of storage facilities at the police station cannot justify the direction to the petitioner to provide containers for the petroleum product.

He highlighted that the trial under the Essential Commodities Act will take considerable time, and if the diesel is kept seized during this period, it would not only deteriorate/deplete but also affect the quality of the petroleum product, apart from causing substantial financial loss to the petitioner.

The learned Public Prosecutor contended that there was a theft of petroleum products involving the tanker, and it would be required during the trial. However, the Prosecutor could not clarify or give satisfactory explanation whether the petitioner, as the tanker’s owner, was directly accused or if there was any other specific case of similar nature against him.

After hearing counsel for the parties and reviewing the record, it transpires that the main allegation against the accused pertains solely to the alleged theft of 6,300 litres of diesel. There are no allegations of adulteration or other malpractices concerning the diesel loaded in the tanker.

Given that the trial under the Essential Commodities Act will take considerable time, allowing the continued seizure of diesel could deteriorate and degrade the quality of the diesel. Moreover, storing highly inflammable substances in the police station poses a serious threat to life and property.

I am unable to convince myself with the reasoning adopted by the ADM. His reasoning to provide containers/drums to store such a large quantity of highly inflammable material contradicts the decision to retain the diesel but release the tanker. Storage in so many drums exposes the diesel to unnecessary risks, including fire hazards, thus undermining public safety and breaching safety regulations under the Explosives Act. Resultantly, it continues to be stored in the tankers which are per force thus still in police custody despite conditional release order of the vehicles.

The seizure of the tanker and diesel, despite the presence of proper documentation, is unjust and amounts to an arbitrary action by the authorities without giving reasons as to why the documents were not found valid.

Moreover, there is no direct allegation or evidence against the petitioner linking them to the theft of diesel. The seizure appears to be based on suspicion alone, without concrete proof of involvement in any criminal activity. The prosecution has also failed to establish any case directly against the petitioner as the tanker owner.

The prolonged seizure of diesel/tankers significantly disrupts the petitioner’s business operations, leading to financial losses that could be substantial. Given that the trial could take years, the petitioner stands to suffer irreparable harm, which is disproportionate compared to the nature of the alleged offense.

There is no gainsaying that Diesel is a perishable commodity that degrades over time, especially when stored improperly. Continued detention of the tanker at the police station poses a risk of spoilage or degradation, which not only affects the quality of the diesel but could also lead to environmental hazards, further increasing the petitioner’s liabilities.

The purpose of retaining seized goods is often to preserve evidence for trial. However, given that there is no prima facie case against the petitioner, and considering the highly perishable nature of the diesel, continued seizure serves no practical purpose in evidence preservation. The petitioner’s willingness to furnish sureties and bonds ensures that the vehicle and diesel can be made available whenever required by the court.

Consequently, the petition under Section 482 Cr.P.C. is allowed. The impugned order dated 18.07.2022 passed by the ADM is hereby modified qua tanker No. RJ-19 GC-1254 with a direction to release of the seized tanker No. RJ-19 GC-1254 along with the diesel loaded therein, subject to the petitioner furnishing two solvent sureties of Rs.30 lacs each and a personal bond of Rs.15 lacs to the satisfaction of the trial Court.

In the event that the exact measurement and sampling of the diesel in the tanker have not been carried out, the Investigating Officer shall ensure this is done in the presence of officials from the Indian Oil Corporation.

Stay application too stands disposed of accordingly.