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2023 Supreme(SC) 1178
SUPREME COURT OF INDIA
Abhay S. Oka, Pankaj Mithal, JJ.
Suresh & Ors. - Appellants
Versus
State of Madhya Pradesh - Respondent
Criminal Appeal No. 3512 of 2023
Decided On : 24-11-2023
For the Appellant(s) : Mr. Vinam Gupta, AOR
For the Respondent(s): Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Ms. Priyanka, Adv. Mr. Argha Roy, Adv. Mr. Gaurav Kumar, Adv.
IMPORTANT POINT
Unauthorised transportation of fuel oil – Unless there was a material forming part of charge-sheet to show nature of liquid, no offence is made out.
Headnote:
Essential Commodities Act, 1955 – Sections 3 and 7 – Indian Penal Code, 1860 – Sections 420 and 120B – Motor Spirit and High-Speed Diesel Oil (Regulation of Supply and Distribution and Prevention of Malpractices) Order 2005 – Criminal Procedure Code, 1973 – Section 482 – Unauthorised transportation of Petro and Diesel through Tanker – Allegation in charge-sheet is that hydrocarbons is mixed in fuel oil, thereby cheating ordinary customers – Appellants are causing illegal losses to customers – Even Government is deprived of tax which can be levied on petroleum and diesel – Entire foundation of charge-sheet is that there was a hydrocarbon mixture in seized tanker, which looks precisely like petrol and diesel and smells like petrol and diesel – Along with charge-sheet, respondent did not produce expert's report regarding precise nature of liquid in tanker – An expert’s opinion showing that liquid was neither petrol nor diesel, but hydrocarbon mixture has not been placed on record – Samples were sent more than two years back for testing and a report has not yet been received – In absence of report, taking charge-sheet as it is, no material is placed on record to show that liquid in tanker was neither diesel nor petrol but a mixture of hydrocarbons – Unless there was a material forming part of charge-sheet to show nature of liquid, no offence is made out – Now, it is too late for State to file a report after a gap of more than two years – Continuation of prosecution will be abuse of process of law – Impugned judgment of High Court set aside and FIR quashed and set aside. (Paras 5, 8 and 9)
Facts of the case:
Appellants invoked the jurisdiction of High Court under Section 482 of Code of Criminal Procedure, 1973 for quashing FIR registered against them for offences punishable under Sections 420 and 120B of Indian Penal Code, 1860 and Sections 3 and 7 of Essential Commodities Act, 1955. By impugned judgment, High Court has dismissed petition seeking quashing of FIR.
Findings of Court:
Though FIR was registered on 14th October 2021 and charge-sheet was filed on 11th February 2022, even as of today, expert’s report on the nature of the liquid found in seized tanker has not been produced. Entire foundation of the charge sheet is that there was a hydrocarbon mixture in seized tanker, which looks precisely like petrol and diesel and smells like petrol and diesel.
Result : Appeal allowed.
JUDGMENT :
ABHAY S. OKA, J.
FACTUAL ASPECT
1. The appellants invoked the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’) for quashing First Information Report (for short, ‘FIR’) registered against them for offences punishable under Sections 420 and 120-B of the Indian Penal Code, 1860 (for short, ‘the IPC’) and Sections 3 and 7 of the Essential Commodities Act, 1955 (for short, ‘the EC Act’). By the impugned judgment, the High Court has dismissed the petition seeking quashing of the FIR.
2. On 7th October 2021, invoices were issued by Bharat Petroleum Corporation Ltd. (‘BPCL’) in the name of MP Bombay Auto Service Petrol Diesel Pump owned by the third appellant for the sale and transportation of 9 Kilolitres each of petrol and diesel through a particular tanker. It is alleged that the subject fuel was shifted to another tanker due to the valve failure in the original tanker. The first appellant was the driver of the tanker, which carried the subject fuel. On 11th October 2021, the SHO of Police Station Kishanpura District, Indore, intercepted the truck while unloading the subject fuel at the third appellant's petrol pump. The SHO recorded the disclosure statements of the first and the second appellants. The second appellant was the manager of Shivam Industries. The truck was seized with the liquid inside. The police collected samples from the four compartments of the tanker. The appellants were given arrest memos on 13th October 2021. On the same day, the samples collected by the SHO were sent to State Forensic Laboratory. The Collector (Food) instructed on the same day to send the samples collected from the subject tanker to BPCL Quality Assurance Laboratory, Indore. On 14th October 2021, the aforesaid impugned FIR was registered. The Forensic State Laboratory at Indore recommended sending the samples to the Indian Institute of Petroleum, Dehradun. According to the appellants' case, BPCL Quality Assurance Laboratory submitted a test report on 19th October 2021, recording that the samples conformed with the required specifications. In the meanwhile, there was a show cause notice issued to the third appellant under Section 6(b) of the EC Act, which culminated in an order imposing a fine on the ground that the third appellant could not produce an invoice authorising transportation through the tanker in question and he did not seek permission for opening the seal and lock of the tanker. The charge sheet was filed on 11th February 2022.
SUBMISSIONS
3. The learned counsel appearing for the appellants has invited our attention to the material forming part of the charge sheet. He pointed out that in the chargesheet, the allegation is that fuel oil mixed with Hexin, C-09, Pentane and rover process oil were procured from Mumbai and Hazira through Shivam Industries. The allegation is that if these hydrocarbons are mixed in different proportions in a mixing machine, the mixture looks exactly like petrol and diesel and has the same smell. The allegation is that on 11th October 2021, the hydrocarbon mixture was loaded in the intercepted tanker. The learned counsel submitted that, admittedly, there is no report obtained by the prosecution of any expert agency about the nature of the liquid found in the intercepted truck. Learned counsel invited our attention to the finding recorded in the impugned order, which records that, though samples were sent to the laboratory in charge of BPCL, a report from the laboratory has not been received. He submitted that taking the charge sheet and material therein as correct, there is no material to show the nature of the liquid found in the tanker at the time of its interception. Hence, no offence was made out.
4. The learned counsel appearing for the State relied upon the statement under Section 27 of the Indian Evidence Act, 1872 of the first appellant stating that he used to pick up ‘concocted fuel’ from Shivam Industries for distribution to the fuel
