IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Crl.MC.No. 3213 of 2011(D) ------------------------- CC.796/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... PETITIONER: ACCUSED ------------------- T.J.MATHAI, THEKKANATH HOUSE, THOUNDAYIL ROAD, KOCHI. BY ADVS. SRI.P.KESAVAN NAIR SRI.P.M.SEBASTIAN RESPONDENT: ----------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MATTANCHERRY. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC.CASE HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JJJ Crl.MC.No. 3213 of 2011(D) APPENDIX PETITIONERS ANNEXURES: ANNX. A: COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, KOCHI ANNX. B: COPY OF THE F.I. STATEMENT FILED BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, KOCHI RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. NO: 3213 OF 2011 (D) ------------------------------------------ Dated this the 2nd day of November, 2011 O R D E R The petitioner is the accused in C.C.No:796/2010 of Judicial First Class Magistrate Court-II, Kochi. The charge sheet was laid against him for offence under clause 16 of Kerala Kerosene Control Order read with section 3 of Essential Commodities Act. The allegation against him is that an information was received by the District Supply Officer, Ernakulam, on 21.11.2009, that the accused herein was using blue coloured kerosene, supplied through authorised ration dealers, in his tar mixing unit and that about 180 litres of such blue coloured kerosene was seen kept on the road side, near the tar mixing unit of the accused. Accordingly, the District Supply Officer and other officers went to the spot. Blue kerosene, as mentioned above, was found on the road Crl.M.C.No:3213/2011 2 side. It was seized in the presence of the witness as per seizure mahazar. The accused was the contractor who had undertaken the road work at that place. After conducting investigation the charge sheet was laid against him. Learned counsel for the petitioner submits that the petitioner has been doing contract work for several years. He is now 74 years old and that the contract work was done by his agents and employees and that he, in fact, is residing about 10 kms away from the spot and he was not responsible for keeping the kerosene alleged to have been seized by the Officers mentioned above. It is further submitted by the learned counsel for the petitioner that the statements of the witnesses, recorded by the Investigating Officer, do not show that it was the accused who kept the kerosene at that place. Crl.M.C.No:3213/2011 3 The fact that it was blue coloured kerosene, supplied through the authorised ration dealers, is discernable by the statements of the District Supply Officer and other officers. The contention that since no scientific test was conducted, it cannot be found that the liquid seized was kerosene supplied through ARD cannot be countenanced at this stage. The statements, copies of which have been produced, would show that the barrel of kerosene was found near the tar mixing plant by the side of the road. The statements would also show that the information received was that kerosene supplied through ration shop was used in that tar mixing plant. There is no case for the accused that the kerosene seized by the officer was not supplied through the ration shop. Crl.M.C.No:3213/2011 4 The other contention raised by the learned counsel is that the witnesses did not say that it was accused who kept the kerosene at that place. The contention that since he was residing far away he cannot be held responsible for keeping the kerosene at that place, also cannot be accepted. The statement given by the witness Sathyan, would show that the petitioner was the contractor and that the tar mixing plant was that of the accused. It is also clear from his statement that the kerosene, used for operating that boiler plant, was made available by the accused. There is also statement to the effect that the kerosene, kept for use, was near the tar mixing plant. Another witness has also stated that at 3.30 pm, on the day of the incident, he had seen ration kerosene/blue kerosene being used in the tar mixing plant. It is also clear from his statement that it was he Crl.M.C.No:3213/2011 5 who gave the information to the District Supply Officer. He was acutally present when District Supply Officer seized the kerosene. Even if the accused was not immediately/physically present at the time of seizure, that may not absolve his liability, the prosecution contends. That is a matter to be considered and decided by the learned Magistrate, in the light of the evidence that may be adduced. Interference at this stage is not warranted. Hence this petition is dismissed. The petitioner can raise all his contentions before the trial Court. N.K. BALAKRISHNAN, JUDGE jjj