..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3698 OF 2007 Sandeep Mansingrao Kondedeshmukh and others. ..Applicants. Versus State of Maharashtra. ..Respondent. .... Mr.Ganesh Gole, Advocate for the Applicants. Mr.A.S.Shitole, APP, for State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 11th December, 2008. DATED : 11th December, 2008. DATED : 11th December, 2008. P.C.: 1. Heard the learned Advocate for the applicants - orig.accused and the learned APP for the State. 2. Applicant No.4 is the Manager of the Petrol Pump owned by applicant Nos.1 to 3. The applicants are seeking quashing of RCC No.0403305/2006 which is pending before the learned J.M.F.C. Court No.7 at Pune. It pertains to C.R.No.3012 of 2004 registered at Haveli police station, Dist.Pune. According to the prosecution, the case is under Sections 3, 7, 8 & 10 of the Essential Commodities Act, 1955 and Section 2(e) (vi), 284 and 3(8) of the Motor Spirit and Diesel Order. ..(2).. 3. As far as Motor Spirit and Diesel Order is concerned, the learned APP has admitted that there is no Rule 3(8) or 3(viii). So also there is no Rule 284. He fairly admitted that they have been wrongly mentioned in the charge-sheet. 4. The facts of this case briefly is that, on 17.2.2004 the complainant Supply Officer visited the petrol pump belonging to the applicant Nos.1 to 3 at about 8:30 p.m. Along with the complainant, officers of Maharashtra State Flying Squad of Food and Civil Supplies were present. They made enquiry with the person who was present there, who introduced himself as the Manager i.e. applicant No.4 herein. The raiding party informed applicant No.4 that the raiding party wanted to inspect the said petrol pump, whereupon he gave his consent. The books of record of petrol pump were inspected by the raiding party. The members of Flying Squad from Weights and Measures Department checked and inspected the measures of the dispensing units. It is alleged that one of the diesel dispensing unit was showing short delivery by 20 to 30 ml for a 5-litre measure and one of the diesel dispensing unit was showing 10 to 15 ml excess and short erratic delivery for a 5-litre measure. ..(3).. Therefore a notice under Section 39(2) of the Weight and Measures Act, 1985 came to be issued to the applicants by the Weights and Measures Department. The said dispensing units came to be sealed. In these circumstances, the case came to be registered as C.R. No.3012 of 2004 at Haveli police station. 5. As one of the allegations in the FIR dated 18.2.2004 was that from one nozzle i.e. unit there was short delivery of 30 ml. for a 5 ltrs. measure and through another nozzle though the diesel dispensing unit showed excess delivery of 10 to 15 ml. per 5 litre measure, there was short erratic delivery, the applicants, therefore, applied for rechecking the dispensing units which were said to give short delivery. The said application was made to the Controller of Legal Metrology, Maharashtra State, Mumbai. The said dispensing units which had been sealed were rechecked and it was found to be giving excess delivery of 5 to 10 ml. per 5 ltr. of measure. The said dispensing unit was rectified by the company mechanic/fitter and was restamped by the Department of Weights and Measures and the Weights and Measures Department has set aside the charge under Section 39(2) of the Standards of Weights and ..(4).. Measures Act, 1985 by order dated 20.9.2005. Thus, it is seen that charge under Section 39(2) of the Weight and Measures Act does not survive. 6. In the charge-sheet there is also allegation of difference in quantity as per pump meter reading and underground storage tank and daily sales register and that petrol or diesel was sold directly and not through nozzle, hence, offence under 2(e)(vi) of the Motor Spirit and High Diesel Regulation of Malpractices Order, 1988 was made out. As far as this aspect is concerned, the Sales Officer of Hindustan Petroleum Corporation Ltd. was aware that the sale was done directly without the nozzle and accordingly it was also mentioned in the retail outlet inspection reports dated 28.8.2000, 8.8.2001, 7.3.2003, 29.10.2003 etc. On perusal of the report dated 29.10.2003, it is seen that quantity of 128000 ltrs. was shown as direct sale (without nozzle). As far as direct sale through nozzle is concerned, the learned APP conceded that by itself such an act, does not constitute an offence. 7. It is an admitted fact that in the area of the petrol pump of the applicants, work of Prime ..(5).. Minister’s Golden Quadrilateral Project of the National Highway Authority of India at NH4 (Pune Bangalore National Highway) was in full swing and so also various dam sites were being constructed in the area due to which there was large requirement of diesel at the said sites of work. As there was load shedding of electricity supply in the said area and on several occasions the electricity had been cut off hence it was not always possible to fill petrol by nozzle. Due to non availability of petrol on account of load shedding, the huge machineries at the work site came to a halt. The said huge machineries at the work site could not be kept idle due to non-availability of petrol as it would cause huge loss and the work which was of national interest would be halted, therefore, the supply of the petroleum product was given uninterrupted by selling the petroleum product in bulk quantity and not through the nozzle. 8. It is pertinent to note that whenever there was a direct sale made by the said petrol pump without nozzle, then it was mentioned in the daily sales register on the relevant date. This itself shows that there was no concealment or suppression of any ..(6).. stock by the applicants in their daily sales record and balance sale as all the receipts and sales was shown in the record. All the sales made directly and not through nozzle are clearly reflected in the sales register. All these facts are also reflected in the official book which is provided by the Hindustan Petroleum Corporation Ltd. and which is accessible for inspection by the officers of any department without prior notice. 9. Leaving aside the charge under Section 39(2) of the Weights and Measures Act in the charge-sheet, it has been alleged that adulterated petrol and diesel was stored at the petrol pump of the applicants and that diesel was not sold through nozzle and hence, offences were made out under Sections 3, 7, 8 of Essential Commodities Act r/w. Section 2(e)(vi), 284, 3(8) of Motor Spirit Act and High Speed Diesel Regulation of Malpractices Order, 1988. As far as Rule 3(8), Rule 284 and 2(e)(vi) is concerned, I have already dealt with the same in para 3 & 6 above. 10. As far as Section 3 of the Essential Commodities Act is concerned, the prosecution case is that as there was adulteration of petrol hence ..(7).. Sections 3, 7, 8 and 10 have been applied. As far adulteration is concerned, Mr.Shitole the learned APP has categorically stated that the report shows that there is no adulteration. He further stated that the report shows that all the samples meet specification. 11. As far as offences under the Standards of Weights and Measures Act is concerned, the said charge has already been dropped which is reflected in the order dated 20.9.2005. As far as offences under Essential Commodities Act is concerned, the report does not support the prosecution, as the report shows that there is no adulteration and all the samples meet specification. As far as offences under Rule 3(8) and 284 is concerned, the learned APP has fairly admitted that there is no such rule or order. 12. Thus, in view of the above, RCC No.0403305/2006 which is pending before the learned J.M.F.C., Court No.7 at Pune pertaining to C.R.No.3012 of 2004 registered at Haveli police station, Dist.Pune and the proceedings relating thereto are quashed. 13. Criminal Application is disposed of accordingly. ..(8).. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)