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Madras High Court · body

1988 DIGILAW 406 (MAD)

Siva, In re. v. .

1988-10-14

ARUNACHALAM

body1988
Judgment The appellant was tried along with two others before the Court of the Special Judge, Madras (Essential Commodities) Act in S.T.C.No.27 of 1984, for violation of Clause 5(3) of the Furnace Oil (Fixation of Ceiling Prices and Distribution) Order, 1974, convicted thereof and sentenced to undergo rigorous imprisonment for three months and pay a fine of Rs.500 in default to undergo rigorous imprisonment for 15 more days. The other two accused were acquitted. 2. The Prosecution case is that P.W.7, the Inspector of Police, Civil Supplies C.I.D. on information inspected premises No.15, Gandhi Street, Janakiram Colony, Arumbakkam, Madras-29, on 17th May, 1983 at 12.30 noon and found 11 barrels of Furnace Oils stored therein totalling in all to 2200 litres. The appellant as well as the acquitted were present at the time of seizure. P:W.7 also found a lorry bearing registration No.TLN M.7939 stationed nearby. The 11 barrels of Furnace Oil were seized under a Mahazar Exhibit P.1. The appellant and the acquitted accused were arrested. P.W.7 registered Crime No.59 of 1983 on the basis of the seizure and exhibit P.3 is the first information report. On 24th May, 1983, at about 11.30 a.m. P.W.7 took samples from the barrels of Furnace Oil seized and through the court had them sent for chemical analysis and report. This sampling was in the office of P.W.7. 3. The trial Court sent the samples to the forensic laboratory for analysis and report, ExP.5 dated 29th August, 1983, is first report received by the trial Court from the Chemical Examiner to the effect that items 1, 2 and 3 sent for analysis were found to meet the I.S.I. specifications of medium viscosity grade furnace oil in regard to viscosity and flash point characteristics. On a request by the Chemical Examiner an authentic sample of furnace oil was sent by the trial court to the forensic laboratory and a second report dated 31st August, 1983, was sent by the laboratory to the trial Court and that is Ex.P7 in this case. It is stated in Ex.P7 that the authentic sample of furnace oil sent by the trial Court was found to be similar to items 1, 2 and 3 described in Ex.P5. 4. On the basis of the reports of the forensic laboratory, this prosecution was launched. 5. To substantiate the prosecution case, P.Ws.1 to 8 were examined and Exs.P1 to P7 were marked. 4. On the basis of the reports of the forensic laboratory, this prosecution was launched. 5. To substantiate the prosecution case, P.Ws.1 to 8 were examined and Exs.P1 to P7 were marked. No material objects were produced in court. 6. When the appellant was questioned by the trial court under Sec.313, Criminal Procedure Code on the evidence adduced, apart from denying charge, he stated that he was dealing in waste oil and it was false to say that he was dealing in furnace oil. The appellant examined Thiru Palani, a mason to lend credence to his case that he used to sell for building construction. 7. Out of the witnesses examined by the prosecution, P.Ws.2, 3 and 4 have been treated hostile. P.W.1 is a witness for seizure on 17th May 1983, P.W.5 is a witness for sampling at the office of P.W.7 on 24th May 1983. Admittedly, the accused were not present at the time when the sampling was done in the office premises of P.W.7. P.W.6, the Deputy Manager in the service of Indian Oil Corporation Ltd, had been examined for the limited purpose of showing that a person can possess up to the limit of 2500 litres of furnace oil without a licence. P.W.7 is the Investigating Officer and P.W.8 is the Scientific Assistant Grade-I who has been examined as an expert to prove the seizure as furnace oil. 8. The trial Court found that though the prosecution had not established sale of furnace oil, the evidence of D.W.1 proved such sale. The learned trial Judge accepted the version of P.W.8 and the chemical Analyst's reports Exs.P5 and P7 to conclude that the seizure was furnace oil. The trial court acquitted A-2 and A-3, since there was no connecting link between them and the appellant and there was no material whatsoever to indicate that they abetted A-1 in the sale on furnace oil. 9. Mr.S.Mahabubjan, learned counsel appearing for the appellant, challenged the conviction recorded by the trial court on the main ground that the prosecution had not proved the seizure to be furnace oil within the meaning assigned to it in item 10 of the first Schedule to the Central Excise and Salt Act, 1944 (1 of 1944). 9. Mr.S.Mahabubjan, learned counsel appearing for the appellant, challenged the conviction recorded by the trial court on the main ground that the prosecution had not proved the seizure to be furnace oil within the meaning assigned to it in item 10 of the first Schedule to the Central Excise and Salt Act, 1944 (1 of 1944). Some other ancillary points were also put forth by the learned counsel for the appellant, but there may not be any need to go into those aspects if the prosecution had not established the seizure to be furnace oil. 10. The Furnace Oil (Fixation of Ceiling prices and Distribution) Order, 1974 in Clause 2 (d) under the head definition, reads that the expression furnace oil shall have the meaning assigned to it in item 10 of the first schedule to the Central Excise and Salt Act, 1944 (1 of 1944). Furnace oil is described in item 10 of the first schedule to the Central Excise and Sale Act as follows: “10. Furnace Oil, that is to say, any mineral oil which- (i) has a smoke point of less than ten millimeters. (ii) Possesses a viscosity of one hundred seconds of more by Redwood 1 viscometer at 37.8 degrees of centigrade thermometer. (iii) Leaves carbon residue of not less than 1/4 per cent by weight when tested in Ramsbottium Carbon Residue Apparatus, and (iv) is as dark as, or darker than, 0.04 Normal Iodine solution when tested by colour comparison test. Explanation I - The Expressions ‘mineral oil’ and ‘smoke point’ have the meaning respectively assigned to them in Explanation I to item No.6 and Explanation II to Item 7 and the expressions ‘carbon residue’ and colour comparison test’ have the meanings assigned to them in Explanation II to item No.8. Explanation II-This item does not include-(a) base mineral oils suitable for use in the manufacture of lubricating oils and greases; and (b) lubricating oils including axle oil. Explanation I to item 5: ‘Mineral Oil’ means an oil consisting of a single liquid hydrocarbon or a liquid mixture of hydrocarbon (except for associated impurities) derived from petroleum, coal, shale, peat or any other bituminous substance, and includes any similar oil produced by synthesis or otherwise. Explanation I to item 5: ‘Mineral Oil’ means an oil consisting of a single liquid hydrocarbon or a liquid mixture of hydrocarbon (except for associated impurities) derived from petroleum, coal, shale, peat or any other bituminous substance, and includes any similar oil produced by synthesis or otherwise. Explanation II to item 7:-‘smoke point’ shall be determined in the apparatus known as the Smoke point Lamp in the manner specified in this behalf by the Central Government by notification in the official gazette. Explanation II to item 8: ‘Carbon Residue’ and ‘colour comparison test’ shall be determined or done in the manner specified in this behalf by the central Government by notification in the official Gazette”. 11. Now let us look into the evidence available in this case to prove the seizure to be furnace oil. Ex.P.5 and P.7 do not contain any details of/the tests carried out except a bald assertion that the items sent to the analyst were found to meet the ISI specifications of medium viscosity grade furnace oil in regard to viscosity and flash point characteristics. It is not clear as to why the expert wanted an authentic sample of the furnace oil to be sent to him. But whatever that might be, it was the duty of the expert to find out if the samples sent would fall within the meaning of furnace oil mentioned in item 10 of the schedule to the Central Excise and Salt Act. That not having been done, the reports which are bald in character cannot from a safe basis for holding that the seizure was furnace oil. It is unfortunate that the seizure had not been produced before the court. However, in this case, the scientific Assistant has been examined as P.W.8 and his expert evidence leaves much to be desired. 1 am extracting down below the answers of the expert, P.W.8 in cross examination- “It is not correct to say that the items 1, 2, 3 mentioned in Ex.P5 should possess the viscosity of 100 seconds or more by Redwood (1) Viscometer at 200 degrees F: Thermometer, I have examined with reference to viscosity and flash points. Flash points was found to be above 100 degree centigrade. I have not noted the height of the flame. Flash points was found to be above 100 degree centigrade. I have not noted the height of the flame. I have not examined the weight of any bitimunos substance.” The Cross-examination appears to be on the basis of the unamended item 10 of the first Schedule to the Central Excise and Salt Act, 1944. Whatever that might be, it is clear that none of the ingredients which will be necessary to establish the seizure as furnace oil has been kept in mind by the analyst when she examined the sample and gave her findings thereon. It is thus obvious that there is no proof whatsoever that the seizure in this case is of furnace oil within the definition of Clause 2(d) of the Furnace Oil (Fixation of Ceiling Prices and Distribution) Order, 1974, Clause 5(3) of the order only prohibits sale of furnace oil. If there is no scope for holding that the seizure was furnace oil, the question of sale or otherwise does not loom large for consideration. 13. In view of my finding, that the prosecution has not established that the seizure from the appellant was furnace oil, the appellant is entitled to be acquitted. 14. In the result, the appeal is allowed the conviction and sentence imposed on the appellant by the trial court are set aside. The fine, if already realised, shall be refunded. B.S. ----- Appeal allowed.