IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 66 of 1990 For Approval and Signature: HON'BLE MR JUSTICE H.H. MEHTA ========================================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? 2. To be referred to the Reporter or not ? 3. Whether their Lordships wish to see the fair copy of judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5. Whether it is to be circulated to the Civil Judge? ========================================================= RAMESHKUMAR HARJIVANDAS Versus STATE OF GUJ ----------------------------------------------------------- Appearance: MR BC DAVE for Petitioners MS KATHABEN GAJJAR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of Order: 28/04/2000 CAV JUDGEMENT #. This is a Criminal Revision Application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973 (for short, Cr.PC) filed by the original accused who has been convicted and sentenced by the Judge of Special Court constituted under Section 12(A) of the Essential Commodities Act, 1955, (for short, "the Act") by rendering a judgement dated 7.2.1990 in Special Criminal Case No.110 of 1989 which was there pending on his file. The Criminal Revision Petitioner was original accused in Special Criminal Case No.110 of 1990. The Revision Opponent is the State i.e. the Prosecution. Therefore, the parties will be referred to hereinafter as the prosecution and accused respectively for the sake of convenience. By the said judgement the accused has been convicted for an offence punishable under Section 7 of the Act for a contravention of Section 3 of the Kerosene (Restriction on Use) Order 1966 (for short, "Order") and he has been sentenced to undergo RI for 3 months. Formerly, the accused had preferred Criminal Appeal No.136 of 1990. Looking clause (b) of Section 373 of Cr.PC no appeal lies in case in which accused has been convicted by a Court of Sessions for imprisonment for a term not exceeding three months. Therefore, on or about 6.3.1990 this Court (Coram: J.U. Mehta, J.) granted permission to the accused to covert his Criminal Appeal No.136 of 1990 into revision and therefore said Criminal Appeal has been converted to this present Criminal Revision Application. #. The facts leading to this present Criminal Revision Application in a nutshell are as follows:- On or about 12.12.1988, at about 5 PM the complainant, Shri R.S. Sindhi, PSI, was on his duty at Kalupur Overbridge, Ahmedabad. Along with him, certain traffic police constables and one expert from Forensic Science Laboratory ("FSL" for short) were also present. The complainant was in-charge of the raid at the relevant time to take action against auto-rickshaws which were found plying with kerosene as fuel. It is further the case of the prosecution that at that time one rickshaw bearing RTO registration No.GRS 3513 was seen coming from Ahmdupura side. That rickshaw was being driven by the accused who is the present Revision-Petitioner. The complainant and the persons who were accompanying him, found that the rickshaw was emitting huge smoke from its silencer. On seeing this rickshaw, the complainant stopped that rickshaw at the place where they were standing. At that time some sample fuel from the tank of the rickshaw was subjected to its preliminary examination by the expert of the FSL who was accompanying the complainant. The expert of the FSL opined that the fuel which was being used by driver/owner of the said rickshaw was adulterated with kerosene. Therefore, in the presence of two panch witnesses sample of fuel from the tank of the rickshaw was taken by the complainant. It was thereafter duly sealed by affixing one slip bearing the signatures of the two panch witnesses and the complainant. Thereafter, the complainant drew the panchnama in the presence of the panch witnesses with respect to what was found and what the formalities were done. The same was signed by the complainant and two panch witnesses. The complainant, thereafter, lodged his complaint against accused in Ahmedabad City Sheherkotda Police Station. That complaint came to be registered as C.R. No.II 805 of 1988 for offences punishable under Sections 3-7 of the Act. Thereafter, the said case which was registered on the basis of the complaint lodged by the complainant, was investigated by PSI Shri V.K.Sonwane and he chargesheeted the accused to the Court of SPecial Judge on or about 5th October 1989. That chargesheet came to be registered as Special Criminal Case No.110 of 1989. #. The learned Judge of the Special Court tried the case summarily as per the provisions contained in Chapter 21 of Cr.PC read with clause (b) of Section 12(AA) of the Act. Therefore, he recorded plea of the accused at Exh.1 on 14.12.1989. The accused pleaded not guilty to the charge. Thereafter, the prosecution examined four witnesses in support of its case by which plea was recorded. The prosecution led documentary evidence also. On completion of the recording the evidence of prosecution further statement of the accused u/s 313 of the Act was recorded on 6.12.1990. Thereafter the arguments of both the parties were heard at length by the learned Judge of the trial Court and thereafter, after appreciating the evidence led by prosecution, the learned Judge of the trial Court came to the conclusion that case against the accused has been proved beyond reasonable doubt and therefore by rendering his judgement dated 7.2.1990 he convicted and sentenced the accused as aforesaid. #. Being dissatisfied with and aggrieved against the said judgment of conviction and sentence, the original accused has preferred this Criminal Revision Application. #. I have heard Shri B.C. Dave, learned advocate for the Criminal Revision Petitioner and Ms Kathaben Gajjar, the learned APP for the Revision Opponent - State in detail at length. I have perused the entire record of the case which has been called for from the trial Court. #. Shri B.C. Dave, learned advocate for the accused has assailed the judgement of conviction and sentence passed in Special Criminal Case No.110 of 1989 mainly on the following grounds:- (A) The report of the FSL does not conform the requirements of analysis to prove that particular liquid which was being used as a fuel was a kerosene as defined in item no.2710.19 of Chapter 27 of the Central Excise Tariff Act, 1985. He has argued that as per item no.2710.19 definition of kerosene is as follows "Kerosene (which is ordinarily used as an illuminant in oil burning lamps) and aviation turbine fuel that is to say, any hydrocarbon (oil excluding mineral colza turpentine substitute) which has a smoking point of 18 mm or more and has a final boiling point not exceeding 300 degree Centigrade" Shri B.C. Dave has further argued that in view of the above definition, the expert of FSL ought to have carried out a test with regard to final boiling point. He has further argued that in this case an expert of FSL - Mrs. Pallaviben B Thakar, who has given her evidence at ex.4 has deposed nothing about any test with regard to boiling point of sample of fuel which was received by FSL and therefore his main thrust of the arguments is to the effect that the article which was analysed by the expert of FSL was not kerosene. (B) Mr Dave has further argued that after recording of the evidence of the witnesses of the prosecution the learned Judge of the trial Court recorded further statement of the accused under Section 313 of Cr.PC but in that statement he has not asked any question by drawing an attention of the accused that he has contravened Section 3 of the Order and therefore his defence has been prejudiced. In support of his arguments, he has cited one authority of Sharad V. State of Maharashtra reported in AIR 1984 SC 1622. He has further argued that as per the principles laid down in the aforesaid authority it was mandatory for the learned Judge to put the circumstnaces appearing against the accused in further statement and further that had he asked that question to the accused, accused could have given his explanation properly to the satisfaction of the Court and as such type of question has not been asked, the accused should be given a benefit of doubt and he should be acquitted. (C) During the course of the arguments the revision petitioner submitted one affidavit dated 24.3.2000 stating inter alia that after the incident he has sold out his rickshaw and he has stopped rickshaw plying since long and therefore now there is no question of repetition of the similar offences being committed in future. The Revision-Petitioner has also requested in his affidavit that he may be released on probation under the Probation of Offenders Act and in support of this request Shri Dave has cited an authority of the STATE OF GUJARAT V G.P. JOSHI 1988 (2) GLH 787 in which the benefit of probation was granted to the accused who was tried for an offence punishable u/s 7 of the Act. (D) Shri B.C. Dave has further argued that after an order of conviction and sentence, period of about 12 years has elapsed and therefore it would not be in the larger interest of justice to send the accused in jail for an offence which was committed before about 12 years. (E) It is one of his arguments that there is no evidence on record to show that accused had added kerosene in tank of the rickshaw and thus prosecution has failed to prove that accused has used kerosene. It is his further argument that sample of fuel was taken from carburettor and therefore naturally there would be presence of a mixture of oil and petrol in the carburettor and under these circumstances prosecution has not proved its case beyond reasonable doubt and therefore the accused should be given benefit of doubt and he should be acquitted. Shri Dave has vehemently argued that if this Court finds that there is a slightest breach in coming to a conclusion by the expert of FSL by analysing the sample then, that benefit should be given to the accused. #. In reply to the arguments of Mr Dave, Ms Kathaben Gajjar, the learned APP, for the State has vehemently argued that looking to the judgement there is no flaw in the judgement and the prosecution has proved the case beyong reasonable doubt and looking to the judgement the learned judge of the trial court has given all cogent and plausible reasons to arrive at a conclusion that accused has committed an offence for which he has been chargesheeted to the Court. She has further argued that looking to the report of FSL for analysis of the sample of fuel three different methods were adopted for analysis by the expert and as a result of such analysis the expert of the FSL has come to a definite conclusion that sample of fuel was found to be mixture of petrol and kerosene hydro-carbons considering the presence of lubricating oil and when the accused has not challenged this report exh.6 of the expert of the FSL, the prosecution has proved beyond reasonable doubt that the sample of the fuel which was taken from the tank of the rickshaw was containing kerosene and when it is an admitted fact that the rickshaw was of the ownership of the accused and it was being plied by the accused himself, then, presumption can be raised against him that he used kerosene by mixing it with petrol to ply the rickshaw, with knowledge. She has further argued that with regard to prayer for benefit of probation to be given to the accused, no such prayer was made before the learned Judge of the trial Court and therefore now that question does not arise for consideration as to whether benefit of probation should be given to the accused or not. It was also submitted by the learned APP for the State that in view of findings of expert of FSL, Ms Pallaviben Thaker had carried out a test for smoking point and as per the evidence of Mrs Pallaviben Thakar during analysis of the sample, smoke point was found to be 23 mm and therefore now it cannot be agitated by the accused that the sample of the fuel was not kerosene. She has lastly argued that there is no substance in the present Criminal Revision and therefore it should be dismissed. #. Before considering the rival submissions of both the parties, it would be necessary in the fitness of things to know the power and scope of this Court for deciding Criminal Revision Applications. (1) In case of KHETRA BASI SAMAL & ANOTHER V. THE STATE OF ORISSA reported in AIR 1970 SC 272 the Hon'ble Supreme Court has held that the revisional jurisdiction conferred on the High Court u/s 439 of Cr.PC 1898 (which is equivalent to Section 401 of Cr.PC 1973) is not to be lightly exercised. This jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. (2) In case of Narain Prasad v. State of Rajasthan reported in AIR 1978 Rajasthan 162, Full Bench of the Rajasthan High COurt has held that the revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is manifest error of point of law and consequently there has been flagrant miscarriage of justice. The procedure of appraising the evidence led by two parties can be equated almost to the process of holding a balance, the time honoured symbol of justice. Sometime when the two pans of balance are seemingly equal, even a slight evidence circumstantial or otherwise, tilts the balance of one side and thereby probablise the case of one party as against the other. In this process of holding the balance what pieces of evidence, of course excluding inadmissible evidence would lean the balance in favour of one party is dependent on the evidence available in a given case. But asking the Revisional Court to say that this piece of evidence should have weighed more than the other, is nothing more than seeking reassessment of evidence. Appreciation of evidence is a mental process involving selection, assessment and conclusion. Which statement ought to weigh and how much cannot be rigidly laid down. (3) In Bansi Lal & Ors. v. Laxman Singh AIR 1986 SC 1721 it has been held by the Hon'ble Supreme Court that from the very nature of the power of Revisional Court it should be exercised sparingly and with great care and caution. (4) In case of Ramu @ Ramkumar & Ors. v. Jagannath reported in AIR 1994 SC 26, the Hon'ble Supreme Court has made it clear that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised. Keeping in mind the above legal position with regard to powers of this High Court and scope in such revision application in dealing with Criminal Revision Application, I will deal with the submissions of Mr Dave which he has urged for setting aside the order of conviction and sentntence and to acquit the accused by giving the benefit of doubt. #. Admittedly, the case of the prosecution is very much specific that the accused has contravened Section 3 of the Order and as per Section 3 of the Order no person shall use or consume kerosene for any purpose other than cooking or ilumination both. In Section 2 of the said Order of 1966 a definition of "kerosene" is given and as per this definition kerosene shall have the meaning assigned to it in item no.7 of the First Schedule to the Central Excise and Salt Act, 1944 (No.1 of 1944) and shall not include aviation turbine fuel and therefore now it is necessary to refer to item no.7 of the First Schedule of the Central Excise and Salt Act, 1944. This item no.7 of the First Schedule below Central Excise and Salt Act, 1944, is there on page no.26 of of CENCUS (Central Excise Manual October 1979) by D.N. Kohli and as per this item no.7 of the First Schedule of the Central Excise and Salt Act, 1944, definition of kerosene has been given as under:- "7. KEROSENE Kerosene, that is to say, any mineral oil (excluding mineral colza oil and turpentine substitute) which has a flame height of eighteen millimetres or more and is ordinarily used as an illuminant in oil burnig lamps. Explanation I : The expression "mineral oil" has the meaning assigned to it in Explanation I to item No.6. Explanation II : "Flame height" shall be determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazette." ##. According to the definition of kerosene given in item no.1 of the First Schedule the only requirement to come to the conclusion that particular fuel is kerosene or not, is only to ascertain a flame height of that fuel and there is no reference with regard to any boiling point in this definition. It may be noted that prosecution has examined expert of FSL - Ms Pallaviben Thakar at Exh.4. She has deposed in detail at length and explained as to how the sample was received by the office of FSL and in what condition the sample bottle was received bythe office of FSL and the manner with regard to analysis of the sample and the contents of the report of Exh.6 given by her. It is pertinent to note that this witness had come to the trial COurt to give her evidence, by taking with her the work sheet in which observations which she noticed at the time of analysis were mentioned and on referring to that worksheet she found that during analysis smoke point was found to be 23 mm and thus the fuel which was analysed by her was conforming to the requirements to come to the conclusion that particular fuel is kerosene. As stated earlier, if for any mineral oil, the flame height is 18 mm or more and which is ordinarily used as illuminant in oil burning lamps then, that mineral oil is kerosene and therefore requirement of flame height was satisfied by the fuel which was analysed by the expert of FSL. It is pertinent to note that this expert of FSL Ms Pallaviben Thakar has been cross-examined by the learned advocate for acused and in the cross-examination she has deposed that petroleum substance is a carbonic substance. A suggestion was made to her which is denied by her that when the bottle of sample of liquid was received by her office, it was not in sealed and intact condition. There is no cross-examination with regard to contents of report at Exh.6 which she has given. There is no cross-examination on the point of procedure which she followed to arrive at a conclusion that particular liquid was a kerosene. It may be noted that the report of the FSL was exhibited and admitted in evidence with the consent of the learned advocate for the accused who appeared before the trial Court to defend the accused and therefore there is no dispute with regard to the conclusion arrived at by Ms Thakar and also with regard to contents of report at Exh.6. Looking to the cross-examination of Ms. Pallaviben Thakar, by the learned advocate for the accused, the only dispute taken by the accused is with regard to seal found on the bottom of sample of fuel which was sent to FSL. Looking to this cross-examination the report at Exh.6 of the FSL is not at all challenged and therfore all the contents of this report can be said tohave been admitted by the accused. When this Exh.6 is not challenged more particularly with regard to final result of the analysis, the prosecution has proved beyond reasonable dout that the fuel sample which was taken from the rickshaw of the accused, was nothing but kerosene. ##. Shri B.C. Dave, the learned advocate for the accused has argued that definition of kerosene as per item no.7 of the First Schedule to the Central Excise and Salt Act, 1944, cannot be looked into while deciding this case. It is his arguments that First Schedule to the Central Excise and Salt Act, 1944 has been omitted by Section 4 of the Central Excise Tariff Act with effect from 28.2.1986 and therefore any reference to the expression "First Schedule to the Central Excise and Salt Act, 1944" in any Central Act shall on or after commencement of the Act 5 of 1986 i.e. 28.2.1986 be construed as reference to First Schedule of the Central Excise Tariff Act ((5 of 1986). By advancing this argument, he has vehemently argued that now definition of kerosene as given in item no.7 of the First Schedule to Central Excise and Salt Act, 1944 cannot be looked into by this Court and further that this Court should take into consideration an item no.2710.19 of Chapter No.27 of the Central Excise Tariff Act, 1985. By drawing an attention of this Court to item no.2710.19, Shri Dave has argued that as per this item, kerosene is defined as follows:- "Kerosene (which is ordinarily used as an illuminant in oil burning lamps) and aviation turbine fuel, that is to say, any hydrocarbon (oil excluding mineral colza turpentine substitute) which has a smoke point of eighteen millimeters or more and has a final boiling point not exceeding 300 degree C." By citing this definition, Mr Dave has argued that in this case the expert of FSL has not carried out any test with regard to boiling point of the fuel in question. He has argued that looking to this definition of kerosene that fuel should conform to the test of the final boiling point which should be more than 300 degree Centigrade. Admittedly, looking to the report at Exh.6 of the FSL, Ms Pallaviben Thakar did not carry out any test with regard to final boiling point. Shri Dave could not show any material to show that particular test is very much required to be carried out to ascertain whether a particular fuel is kerosene or not. Looking to Exh.6, Ms Pallaviben Thakar has deposed about the method of analysis to ascertain as to whether the fuel in question was kerosene or not. It is not the case of the accused that this method of analysis is not recognised by any law or rules. As stated earlier, looking to fact that report at exh.6 is not challenged and more particularly the final result of the analysis, the arguments of Mr Dave cannot be accepted, because the words "that is to say any hydrocarbon oil excluding mineral colza, turpentine substitute which has a smoke point of 18 mm or more and final boiling point of not exceeding 300 deg. C." are used only for aviation turbine fuel and not for kerosene and therefore this Court is of the view that for ascertaining whether a particular fuel is kerosene or not, the tests stated in the aforesaid item no.2710.19 are not required to be carried out and that two tests are required to be carried out only for the aviation turbine fuel. For a moment if it is believed that the aforesaid two tests viz. one with regard to smoke point and another for final boiling point are required to be carried out to ascertain as to whether a particular fuel is a kerosene or not, then, that definition of kerosene as stated in point no.2710.19 is not applicable to this present case because, as per Rule 2 of Kerosene (Restriction on Use) Order 1966, definition