IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.296 of 2008 Inbaraj .. Petitioner Vs 1.District Collector District Collector Office Erode 2.Special Tahsildar Flying Squad Erode .. Respondents PRAYER: Criminal Revision Case filed under section 482 of Criminal Procedure Code praying to call for the records relating to the order dated 13.12.2007 passed by the learned Sessions Judge of the Additional District Cum Fast Track Court I, Erode in Criminal Appeal No.110 of 2007 confirming the order passed by the first respondent in e/v/70680/05/f3 dated 23.04.2007 and set aside the same. For Petitioner : Mr.G.R.Swaminathan For Respondents: Mr.I.Paul Nobel Devakumar Govt.Advocate (Crl.side) ORDER The first respondent, namely, the District Collector, Erode passed an order on 23.04.2007 vide his proceedings e/f/70680/f3 confiscating 10,300 litres of MTO (Mineral Terpen Oil) and imposed a fine of Rs.10,000/- on the petitioner herein in exercise of the powers conferred on him under the Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of use in Automobiles) Order 2000 on the premise that the petitioner did not possess a valid license for the storage of the said quantity of MTO. As against the said order of the first respondent, the petitioner preferred a criminal appeal before the Sessions Judge in Crl.A.No.110 of 2007, https://hcservices.ecourts.gov.in/hcservices/ which came to be disposed of by the Additional District and Sessions Judge (Fast Track Court No.I) Erode. Questioning the correctness of the same, the present criminal revision case has been filed. 2. The first respondent is the District Collector, Erode and the second respondent is the Special Tahsildar, Flying Squad, Erode, who seized the above said quantity of MTO from the premises of the petitioner. Both the respondents were served and they are represented by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side). 3. The arguments advanced by Mr. G.R.Swaminathan, learned counsel for the petitioner and by Mr. I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) representing the respondents were heard. The copies of the impugned orders of the first respondent as well as the Fast Track Court and the connected papers presented on both sides were all perused and taken into consideration by this Court. 4. The learned counsel for the petitioner argued that neither the first respondent nor the lower appellate Court properly understood and correctly applied the provisions of the Solvent Raffinate and Slop (Acquisition, Sale, Storage and Prevention of use in Automobiles) Order, 2000; that the mistake committed by the first respondent did not catch the attention of the learned appellate Judge and hence, the impugned order dated 13.12.2007 of the appellate Judge passed in Crl.A.No.110 of 2007 is erroneous. The learned counsel for the petitioner mainly relies on the following two contentions:- i)The petitioner being a manufacturer of Fabric Thinner and MTO being used in such manufacture, could keep in his possession 20 kiloliters of MTO without a license. The said aspect was not considered in proper perspective by the first respondent and the lower appellate Judge. iii)The Officer, who conducted inspection and seized the MTO, did not follow the procedure prescribed by the above said Solvent Raffinate and Slop (Acquisition, Sale, Storage and Prevention of use in Automobiles) order, 2000 regarding drawal of samples. The first respondent has also closed his eyes to the material defect, passed an order confiscating the MTO seized from the petitioner and imposed a fine on the supposed admission of the petitioner that the same was MTO and that he did not posses license for keeping in it in his possession. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned Government Advocate (Crl.side) relying on the copy of Form B, Certificate of Registration under the Central Sales Tax (Registration and Turnover) Rules - 1957 submitted that as per the said certificate of registration, the petitioner was authorized to keep Mineral Terpen Oil for resale and it was not intended to be used in manufacture and processing of goods for sale; that the permission to have MTO upto 20 Kiloliters, without license was applicable only to persons having it for manufacturing purpose and that hence, the first contention raised by the learned counsel for the petitioner should be rejected as untenable. 6. Of course, it is true that Form B Certificate of Registration under the Central Sales Tax (Registration and Turnover) Rules -1957 was initially issued to the petitioner on 18.03.2003 to be valid from 17.03.2003. In the certificate originally issued Mineral Terpen Oil (MTO) was shown under Clause (a) dealing with solvents for resale and under Clause (b) no substance had been shown to be held by him for use in manufacture or processing of goods for sale. But the said certificate came to be amended by an endorsement by the Commerical Tax Officer wherein Mineral Terpen Oil (MTO) came to be shown in Column (b) of Item 16 to the effect that the same was intended to be used for manufacture and processing of goods for sale. Such an endorsement was made applicable with effect from 11.03.2005. The said particulars are ascertained from the copy of Form B included in the additional typed-set of papers produced by the petitioner, the authenticity of which is admitted by the learned Government(Crl.side) Advocate appearing for the respondent. In addition to that a duplicate certificate issued by the Assistant Commissioner, Perundurai dated 29.10.2010 has been produced for the perusal of the Court, in which Mineral Terpen Oil (MTO) among other items have been shown to be the items that may be kept by the petitioner for use in manufacture or processing of goods. The amended Form B came into effect from 11.03.2005. The check made by the Flying Squad was on 20.10.2005. Therefore, on the date of check and seizure, the petitioner had registered himself as a manufacturer of Fabric Thinner, for the manufacture of which MTO is used. 7. The notification issued by the Ministry of Petroleum and Natural Gas, Government of Tamil Nadu dated 21.11.2001 lists MTO as one of the solvents for the purpose of solvent control order which requires license. However, an explanatory clause has also been appended to the following effect:- " No licence would be required for consumption of 50 Kiloliters per month or less and storage of 20 Kiloliters or less of solvents listed above combined". It has also been decided that the Solvent Control Order as amended vide amendment order dated 21.11.2001 shall be implemented w.e.f 1st December 2001." https://hcservices.ecourts.gov.in/hcservices/ 8. A reading of the said Clause will make it clear that a manufacturer can use solvents listed in the above said order to the tune of 50 Kiloliters per month and if the consumption of such manufacturer is not more than 50 Kiloliters, no license need to be obtained. Similarly, solvents notified can be stocked upto the quantity of 20 Kiloliters at any point of time. So long as it does not exceed 20 Kiloliters, subject to the condition that the consumption per month shall not exceed 50 Kiloliters, no license for such possession of the solvent shall be needed. 9. In this case, in the impugned order of the first respondent, the quantity of the solvent, namely MTO, found in the possession of the petitioner and seized is furnished as 10,300 litres. Therefore, it is quite obvious that no licence for the petitioner was needed to keep in his possession that much of solvents without any licence as he got the Form B Registration Certificate for use of the solvent concerned for manufacturing purpose. It is also not the case of the respondents that apart from MTO, the petitioner was having in his possession other solvents notified under the said order to make the total quantity of solvents in his possession at the point of check to be more than 20 Kiloliters. Therefore, the very basis of the seizure and the consequent confiscation order, which also impose penalty, is on an erroneous application of the concerned provision of the control order, which cannot withstand the scrutiny of this Court. 10. The second contention of the learned counsel for the petitioner also deserves to be countenanced. Clause 5 of the control order deals with the Sampling of the product. It says the officer authorized under clause 4 shall draw sample from the tank, nozzle, vehicle or receptacle, as the case may be, to check whether the provisions of the Order are being or likely to be contravened; that the officer authorised in Clause 4 shall take sign and seal three samples of 750 Ml to 1 litre each, of the product. One shall be given to the concerned person under acknowledgment with instructions to preserve the sample in safe custody till the testing and investigations are complete. The second sample shall to be kept by the concerned oil company or Department and the third is to be used for laboratory analysis. It also mandates that the samples shall be taken in clean glass or aluminum containers and no plastic container shall be used for drawing samples. It also says that the label of the sample shall be jointly signed by the officer who has drawn the sample and the concerned person or his representative and the label shall also contain information as regards the product, place of seizure, quantity of sample, date, name and signature of the concerned person or his representative. For the purpose of better appreciation, the entire Clause 5 is reproduced here under:- "5.Sampling of Product:- (1)The officer authorized in clause 4 shall draw the sample https://hcservices.ecourts.gov.in/hcservices/ from the tank, nozzle, vehicle or receptacle as the case may be to check whether the provisions of this Order are being or likely to be contravened. (2)The officer authorised in clause 4 shall taken sign and seal three samples of 750 ml to 1 litre each of the product one to be given to the concerned person under acknowledgment with instructions to preserve the sample in his safe custody till the testing and investigations are complete the second sample shall to be kept by the concerned oil company or Department and the third to be used for laboratory analysis. (3)The samples shall be taken in clean glass or aluminum containers and no plastic containers shall be used for drawing samples. (4)The samples label should be jointly signed by the officer who has drawn the sample and the concerned person or his representative and the label shall contain information as regards the product, place of seizure quantity or sample date, name and signature of the concerned person or his representative. (5)The authorized officer shall send the third sample of the product taken under the sub-clause (2) within a period of ten days to any of the laboratories specified in Schedule III of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order 1998 for the purpose of analysis of sample to check the product." 11. Admittedly, the authorized officer, namely the second respondent herein, did not draw samples from the alleged contraband seized from the petitioner. Not even a single sample was drawn. On the other hand, the first respondent, in his order, has chosen to state that the petitioner did not dispute the description of the contraband, namely MTO and that hence no sample needed to be drawn. The above said approach made by the first respondent is erroneous and it shows total non-application of mind to the mandatory provision of the control order. 12. It also shows total non-application of mind on the part of the first respondent to the Control Order, which says that a manufacturer can have in his possession, solvents to the extent of 20 Kiloliters and the quantity seized from the petitioner was much below the maximum exempted quantity and that the petitioner had been permitted to use them for manufacturing purpose. The said aspects were not properly dealt with by the learned appellate Judge also. Therefore, this Court comes to the conclusion that the impugned order passed by the first respondent is infirm, defective and liable to be set aside and the appellate Judge has also failed to notice the above said defect found in the impugned order of the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 13. In the result, the criminal revision case succeeds and the order of first respondent dated 23.04.2007 is set aside. The barrels and the MTO seized and confiscated as per the order of the first respondent shall be returned to the petitioner. The petitioner is also entitled to the refund of find amount collected from him as penalty. In case the contraband had already been either sold or used by the Government, the petitioner shall be entitled to the value thereof. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gpa To 1.District Collector District Collector Office, Erode 2.Special Tahsildar Flying Squad, Erode 3.Sessions Judge of the Additional District Cum Fast Track Court I, Erode. 4. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. R. Thiagarajan, ADvocate SR.79369 Crl.R.C.No.296 of 2008 LA(CO) Eu 24.11.10 https://hcservices.ecourts.gov.in/hcservices/