HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 564 of 2002 Reserved on: 26.3.2010 Decided on: 1.4.2010 Rohit Saini and another ……… Appellants. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellants: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellants under Section 374 of the Cr.P.C. against the judgment of the learned Special Judge, Solan, dated 7.8.2002, vide which the appellants were held guilty and convicted and sentenced as under: Under Section 3/7 of Prevention of Essential Commodities Act, 1955 Simple imprisonment of three months each and fine of Rs.3,000/- each. In default of payment of fine, the convicted shall further undergo simple imprisonment of fifteen days. Under Section 23 of Petroleum Act, 1934 Simple imprisonment of one month each and fine of Rs.1,000/- each. In default of payment of fine, the convicted shall further undergo simple imprisonment of 7 days. Under Section 420 IPC Simple imprisonment of three years each and fine of Rs.10,000/- each. In default of payment of fine, the convicted shall further undergo simple imprisonment of six months. All the sentences were to run concurrently. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that on 25.9.1999, a written complaint was received by SHO, Police Station, Nalagarh from one Bagga Singh of Taxi Union, Nalagarh, alleging that the diesel is being put in the petrol at Petrol Pump Nalagarh with the result that there vehicles are not plying properly. It was alleged that action should be taken against the owners of the Petrol Pump. On this complaint Ext.PA, H.C. Sohan Lal, PW-9, when to Surendra Petrol Pump, whose owner was appellant No.1, namely, Rohit Saini and appellant No.2 Khem Chand was stated to be the Manager of the said Petrol Pump. PW-9 H.C. Sohan Lal lifted three sample bottles from the stock of petrol kept in the outlet, sealed all the three bottles with seal in presence of witnesses and prepared a panchnama. He gave one bottle to appellant No.2 and two bottles were deposited at the police station with the MHC Kirpa Ram. The said MHC sent these bottles to Indian Oil Corporation at Shimla for analysis. On receipt of the test report, the FIR was registered against the appellants and after investigation, the challan was filed for the offence punishable under Section 3/7 of the Essential Commodities Act, 1955, Section 23 of the Petroleum Act, 1934 and under Section 420 of the IPC. The learned Special Judge tried the appellants under the above Sections leading to their conviction, as detailed above. I have heard the learned counsel for the appellants and the learned Assistant Advocate General for the respondent/State. - 3 - The first point taken by the learned counsel for the appellants, during the course of arguments, was that the police officer H.C. Sohan Lal, who went to the petrol pump and collected the sample, was not authorized to take the sample for the purpose of analysis. My attention has been drawn to the circular issued by the Ministry of Industry, dated November 30, 1990, which is in the Petroleum Act 1934 and Petroleum Rules, 1976, (1991 Edition by H.L. Sarin). A perusal of the said circular clearly shows that the following types of officers are entitled to take samples under the provisions of the aforesaid Act. The persons authorized, as per the table, are as under: “Designation of the Officer (1) Limit of Jurisdiction (2) Chief Controller and Controller of Explosives Whole of India All District Magistrates Their respective districts All Magistrates subordinate to District Magistrates Their respective jurisdiction Police Officer not below the rank of an Inspector The area over which their authority extends.” According to the Rules prevalent at that time, this Rule is applicable and a police officer not below the rank of an Inspector was authorized to enter, inspect, search and seize any petroleum product. Accordingly, it is clear that a person below the rank of Inspector, namely, Head Constable, as in the present case, was not competent to take the sample under the provisions of Petroleum Act, 1934 under which the appellants have been charged. The learned Assistant Advocate General was not able to show any - 4 - notification issued in this regard under the Rules framed under this Act, which authorized a Head Constable to take the sample. Thus, it is clear that the Head Constable, who took the sample in the present case, was not authorized under the provisions of the Act and Rules framed thereunder to take the sample and, as such, the appellants cannot be held liable under Section 23 of the Petroleum Act, 1934. The second point taken by the learned counsel for the appellants was that under the provisions of the Essential Commodities Act, a police officer is not competent to take the sample and, as such, the Head Constable, who took the sample, was not authorized and as such, the appellants cannot be held liable under the provisions of Section 37 of the Essential Commodities Act. A perusal of the orders issued under Section 3 of the Essential Commodities shows as under: “(1) Any officer of the State Government, not below the rank of an Inspector, in the Department of Food and Civil Supplies, duly authorized and notified in the Official Gazette by such State Government, or any officer of an Oil Company not below the rank of a Sales Officer, may, with a view to securing compliance with the provisions of this Order, or for the purpose of satisfying himself that this Order or any order made thereunder has been complied with;” Nothing to the contrary could be pointed out by the learned Assistant Advocate General during the course of arguments that the police officers are also authorized under clause 7 or under any other provisions of the Act or the Rules framed thereunder to take sample of petroleum, as in the present case. The submission made by the learned counsel for the appellants has substance in it and once the - 5 - Head Constable was not authorized to take sample under the provisions of the Essential Commodities Act, the appellants cannot be held guilty accordingly. The third and the last point taken by the learned counsel for the appellants was that there is a major contradiction in regard to the fact as to which seal was used for sealing the bottles and as to whether the same bottles were sent to the office of the expert or not. My attention has been drawn to the testimony of PW-7 Shri Kirpa Ram, the then MHC, who is specific that two sample bottles containing petrol were deposited with him by the Head Constable Sohan Lal on 25.9.1999. Both the bottles were sealed with seal impression “A”. A perusal of the statement of PW-12 Shri R.S. Rawat, the then Deputy Manager and the expert in this case, who received the samples and analyzed them, shows that the samples were duly sealed with seal impression “K”. He also stated that these samples were lifted by the police i.e. SHO Nalagarh from the petrol pump of M/s Surendera Transport and Engineering Company, Nalagarh. This witness has been produced to prove the said report of the expert and his report has been relied upon by the prosecution as Ext.PJ. Once his statement shows clearly that sample bottles received by him were having seal impression “K”, it has to be concluded that same samples were sent to him for analysis in this case. On the other hand, the statement of the MHC with whom the samples were deposited clearly shows that these were having seal impression “A”. Thus, it clearly leads to the inference that the sample which was deposited with the - 6 - MHC by the said Head Constable was not sent for analysis. Therefore, the report of the expert PW-12, namely, Shri R.S. Rawat cannot be relied upon that the sample did not conform to the standards prescribed for the same. This is a major contradiction and cannot be ignored and the benefit of this has to be given to the appellants. The net result of the above discussion is that in view of the three points raised during the course of arguments by the learned counsel for the appellants, the appellants cannot be held guilty and accordingly, the findings of the learned trial Court holding the appellants guilty and convicting and sentencing them are liable to be set aside. In view of the above discussion, the appeal filed by the appellants is accepted and the conviction and sentence imposed by the learned trial Court is set aside. The fine, if realized, shall be refunded back to the appellants forthwith. A copy of this judgment be also sent to the learned Special Judge for information and compliance. The appeal stands disposed of accordingly. April 1, 2010. (V.K. Ahuja), (TILAK) Judge