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2001 DIGILAW 530 (KAR)

MEER NAVEED KHAN v. STATE BY GULPET POLICE, KOLAR

2001-07-11

MOHAMED ANWAR

body2001
MOHAMED ANWAR, J. ( 1 ) HEARD both sides. ( 2 ) THE petitioner-accused is prosecuted by the respondent-police in E. C. C. No. 11 of 2000 before the learned Magistrate on the charge of he having committed an offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 ('the Act' for short), as he being the dealer in petrol, was found on 6-1-1988 at about 10. 00 a. m. within the limits of the respondent-police station, selling adulterated petrol to the public at his petrol bunk, situate at Kolar, in contravention of Clause 2 (e) and 2 (i) of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 ('the Order of 1990' for short ). ( 3 ) IT is not in dispute that the petitioner was the owner of the said petrol bunk and that he was the dealer as defined in sub-clause (c) of clause 2 of the said order and that the samples of the petrol stored in the bunk were seized by the police on 6-1-1988 at about 10. 00 a. m. and the same were subjected to chemical examination of the Chemical Examiner, f. S. L. , Bangalore, and that on examination of the said sample, he furnished his report No. CS/386/98 dated 22-1-1998 with his following opinion. "the density of petrol does not confirm to the density standard as specified in the Government Order dated 22-9-1990". ( 4 ) THERE is no dispute as to the facts that the petrol in which the petitioner was dealing is the "motor Spirit" within the definition of sub-clause (e) of Clause 2 of the Order of 1990, which reads. "2. Definitions. In this order, unless the context otherwise requires: (a) to (d) xxx xxx; (e) "motor Spirit" means any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 25 degree Celsius, and which, either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines; (f) to (m) xxx xxx xxx". By Clause 5 of the Order of 1990, a dealer is prohibited from indulging in any manner in any of the malpractices listed in Clause 2 (d) of the order, which defines the term "malpractices" as follows. By Clause 5 of the Order of 1990, a dealer is prohibited from indulging in any manner in any of the malpractices listed in Clause 2 (d) of the order, which defines the term "malpractices" as follows. "2 (D) "malpractices" shall include the following acts of omission and commission in respect of motor spirit and high speed diesel: (i) adulteration, (ii) pilferage, (iii) stock variation, (iv) unauthorised exchange, (v) unauthorised purchase, (vi) unauthorised sale". ( 5 ) THE gravamen of the charge against the petitioner is that at the said date, time and place he was found selling adulterated petrol to the public from his petrol bunk in contravention of the Clause 5 of the said order. Therefore, we too need advert to the definition of "adulteration" contained in sub-clause (a) of Clause 2 of the Order of 1990. By this sub-clause, adulteration is defined as under. "2 (A) "adulteration" means the introduction of any foreign substance into motor spirit/high speed diesel illegally/unauthorisedly with the result that the product does not conform to the requirements indicated in Schedule I". ( 6 ) THEN we need to ascertain the requirements of the permissible chemical standard of the motor spirit in question indicated in Schedule I to the said Order of 1990, the material portion whereof is reproduced below. "the density at 15 degree Celsius of motor spirit of high speed diesel at the receiving end (received by dealer) shall be within 0. 0030 of the density at 15 degree Celsius at the despatch depot of the Oil Company as indicated in the delivery document". ( 7 ) THE combined reading of the aforesaid material provisions of the Order of 1990 makes this pertinent fact clear that for a dealer to be held guilty of the offence of adulteration, it is necessary for the prosecution to place material in support of its charge against him that the samples of the "motor spirit" (petrol), collected from the stock thereof in possession of the dealer was at variance by certain degrees either way with the standard of the density of the motor spirit prescribed by the aforequoted provision of Schedule I of the Order. In the instant case, admittedly, the basis for the prosecution to prosecute the petitioner was the aforestated report dated 22-1-1998 of the Chemical Examiner which lacks mention of the degree of variance in the quality or chemical composition of the said samples of the motor spirit (petrol), seized from the stock of petitioner and also that with what component material that the said motor spirit was found to have been adulterated. On the other hand, the report of the Chemical Examiner is a very bald one which simply states in evasive terms that the density of petrol examined by him did not conform to the density standard as specified by the Order of 1990. Such a bald opinion of the Chemical Examiner cannot be made foundation for prosecution of the petitioner for the alleged offence. Therefore, the petition deserves to be allowed. ( 8 ) HENCE, the petition is allowed. The criminal proceeding in E. C. C. No. 11 of 2000 on the file of the Court below against petitioner is quashed. --- *** --- .