Crl.A. 92/2004 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA The judgment and order, dated 08.03.2004, passed by the learned Special Judge, C achar, Silchar, in Special Case No.34/2000, under Section 7 of the Essential Com modities Act, is in challenge in this appeal. 2. By the impugned judgment and order, the learned Special Judge co nvicted the appellant for the offence, under Section 7 of the Essential Commodit ies Act (hereinafter called ’the E.C. Act’) and sentenced him to suffer rigorous imprisonment for six years and pay fine of Rs.50,000/, in default suffer rigoro us imprisonment for another period of one year. Aggrieved by the said judgment and order of conviction and sente nce, the convict, as appellant, has come up with this appeal under Section 374(2 ) of the Code of Criminal Procedure (hereinafter called Cr.P.C. ). 3. Heard Mr. T.J. Mahanta, learned counsel, appearing for the appel lant. Also heard Mr. B.S. Sinha, learned Addl. Public Prosecutor, appearing for the State-respondent. 4. The prosecution case, in brief, may be stated as follows:- On 28.07.2000, at about 8.30 pm, Sri Shyamal Prasad Saikia, Addl . S.P.(HQ), Silchar (PW.3), on the basis of a secret information regarding conce alment of some K.oil and diesel etc. in the house of one Sri Nirod Chandra Nath @ Bolo Nath (hereinafter called ’the appellant’), rushed to the house of the app ellant along with Sri S.B. Sinha, SI of Silchar Traffic Branch (PW.7) and other police personnel. Thereafter, he conducted search in the house of the appellant and found 60 barrels of diesel and 60 barrels of blue dyed K.oil (about 200 litr es in each of the barrels). At the time of the said search, the appellant was no t available in his house. PW.3 informed the matter to Sri Hrishikesh Choudhury, S.I. of Food & Civil Supplies, Silchar (PW.8) and instructed him to lodge a FIR and make seizure of the items aforesaid. Accordingly, Sri Nihar Ranjan Nath, S.I . of Police, who was the O/c of Dholai P.S. at the relevant time, lodged the FIR and seized S.K. oil and diesel aforesaid, vide Ext.1, from the house of the app ellant. 5. On receipt of the said FIR, police registered a case under Secti on 7 of the E.C. Act and launched investigation into the matter. At the close of investigation, police submitted charge sheet against the appellant, under Secti on 7 of the E.C. Act. 6. The learned Special Judge, Cachar, Silchar, framed charge agains t the appellant, under Section 7(1)(A)(ii) of the E.C. Act. The charges were rea d over and explained to the appellant, to which he pleaded not guilty and claime d to be tried. 7. In order to prove its case, prosecution examined as many as 9 wi tnesses, including the Investigating Officer. At the close of examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C . He denied the allegations, brought against him and declined to adduce defence evidence. 8. The learned Special Judge, considering the evidence on record, f ound the appellant guilty of the offence charged under Section 7 of the E.C. Act and accordingly, convicted and sentenced him, as indicated above. 9. Mr. T.J. Mahanta, learned counsel, appearing for the appellant, drawing the attention of this Court to the provisions of Section 7 and Section 2 (a)(b)(bb)(bbb) of the Petroleum Act,1934 (hereinafter called ’the Act,1934’), h as submitted that, there is no evidence on record to show that the seized items were petroleum products belonging to the prohibited category. The learned counse l further submitted, that the informant, who lodged the FIR, as complainant, him self investigated the matter and submitted the charge sheet and as such the enti re investigation being illegal, the trial got vitiated. 10. Having heard the learned counsel for both the parties, I have ca refully perused the evidence on record. 11. PW.3, Sri Shyamal Prasad Saikia, who initially made the search a nd detected the S.K. oil and diesel aforesaid, stated that, he instructed Sri Ni har Ranjan Nath i.e. PW.9 to lodge the FIR and seize the S.K. oil and diesel afo resaid. Accordingly, PW.9 made the seizure, vide Ext.1 and lodged the FIR. He ha s exhibited the FIR, lodged by him as Ext.2. 12. In the FIR (Ext.2), PW.9 has stated that 60 Nos. of barrels (200 litres capacity) containing some liquid, suspected to be S.K. oil and 60 Nos. o f barrels (200 litres capacity) containing liquid, suspected to be diesel, were kept by the appellant for the purpose of sale at higher rate in the market and t hat he had seized the said items. Therefore, from the said FIR, it appears that PW.9 had suspected that the seized items were S.K. oil and diesel. There is no e vidence, on record, to show that the said items, suspected to be K.oil and Diese l were proved to be K.oil and Diesel by adducing cogent evidence, more particula rly by proving any report of chemical examination. 13. In order to hold a person guilty of keeping K.oil, diesel etc. i llegally, it must be proved that the seized item was petroleum products. Admitte dly, the seized items were not sent to the laboratory for chemical examination f or the purpose of ascertaining as to whether those were S.K. oil and diesel. The refore, in the absence of any chemical examination or expert opinion, it can’t b e held that the seized items were essential commodities, as defined by the E.C. Act. Section 2(a)(b)(bb)(bbb) and Section 7 of the Petroleum Act,1934 , read as follows :- 2(a) petroleum means any liquid hydrocarbon on mixture of hydrocarbons, and any inflammable mixture (liquid, viscous or solid) containing any liquid hydroc arbon; (b) petroleum Class A means petroleum having a flash-point below twenty-th ree degree centigrade; (bb) petroleum Class B means petroleum having a flash-point of twenty-three degrees centigrade and above but below sixty-five degrees centigrade; (bbb) petroleum Class C means petroleum having a flash-point of sixty-five d egrees centigrade and above but below ninety-three degree centigrade. 7. No licence needed for transport of storage of limited quantities of petroleu m Class B or petroleum Class C.- Notwithstanding anything contained in this Chap ter, 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 pla ce does not exceed two thousand and five hundred litres and none of it is contai ned in a receptacle exceeding one thousand litres in capacity; or (ii) petroleum Class C if the total quantity in his possession at any one pla ce does not exceed forty-five thousand litres and such petroleum is transported or stored in accordance with the rules made under section 4. 14. As provided by Section 7 and Section 2(a)(b)(bb)(bbb) of the Act ,1934, certain categories of petroleum products can’t be kept in possession, bey ond the maximum permissible quantity. In the present case, the prosecution faile d to prove that the seized items belonged to petroleum products and that storage of the same was not permissible, without permit issued by the appropriate autho rity. 15. Sri Nihar Ranjan Nath, S.I. of Police, who deposed as PW.9, lodg ed the FIR(Ext.2), as complainant. He made the seizure of S.K.oil and diesel afo resaid. He admitted that he had submitted the charge sheet, after obtaining nece ssary prosecution sanction. From the above, it is clear that the police officer, who lodged the FIR, as complainant, himself conducted the investigation and submitted the charge sh eet. 16. A Division Bench of this Court, in the case of Dipak Nath & Anr. Vs. State of Tripura, reported in 2009 (2) GLT 40, referring to the case of Meg ha Singh vs. State of Haryana, reported in AIR 1995 SC 2339, has observed that t his practice of conducting investigation by the informant is very unusual and un known to the criminal investigation and it goes against the principle of imparti ality as regards the investigation is concerned. 17. The Supreme Court, in the case of Megha Singh(supra), noticed th at Siri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and the cartridges were recovered from the accused and on the basis of his complaint, a formal first information report was lodged and the cas e was initiated. The Supreme Court, in the said case, observed that, the Head Co nstable being the complainant should not have proceeded with the investigation o f the case and such practice, to say the least, should not be resorted to so tha t there may not be any occasion to suspect fair and impartial investigation. The Supreme Court allowed the appeal and set aside the conviction and sentence pass ed against the appellant. 18. In view of above principle, in the present case, the investigati on, conducted by the informant himself, can’t be treated as impartial investigat ion and therefore, the trial as well as the conviction, recorded on the basis of such illegal investigation, suffers from legal infirmity and impediment. It nee d not be reiterated here that justice should not only be done but it must appear to have been done. The personal liability of any person can’t be taken away wit hout due process of law. Therefore, the procedure followed must not suffer from biasness. No action can stand the scrutiny of law if the procedure, adopted, is found to be bias. In the case at hand, as the complainant has conducted the inve stigation and submitted the charge sheet, the entire procedure, resulting submis sion of charge sheet, can’t be held to be free from biasness. Therefore, as the investigation does not appear to be impartial, the conviction based on such inve stigation can’t be allowed to stand in the eye of law. 19. In view of the above discussion, I find sufficient merit in this appeal, requiring interference with the impugned judgment and order of convicti on and sentence. 20. Accordingly, the appeal is allowed. The impugned conviction and sentence recorded against the appellant is set aside. Consequently, the appellan t is acquitted and set at liberty. His bail bond shall stand discharged. Return the Lower Court Records.