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2004 DIGILAW 373 (GAU)

Kailash Kumar Agarwalla v. State of Assam

2004-05-31

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This is an application made under Section 439 Code of Criminal Procedure seeking bail by the accused-Petitioner, namely, Kailash Kumar Agarwalla, in connection with Titabor PS Case No. 42/2004 under Section 7 of the Essential Commodities Act, 1955, read with Section 23(1)(a) of the Petroleum Act, 1934. 2. On 18.5.2004, Sri Dwijen Singh, Executive Magistrate, Titabor, lodged an FIR with reference to Titabor PS Case No. 42/2004 afore-mentioned, the allegations in FIR being, in brief, thus: It has been learnt by the informant from reliable source that M/s Balaji Tea Industries, Rangajan, has stored petroleum product (suspected crude oil) unauthorisedly for long and have also used the same to run their factory located at Rangajan whereupon, he (informant), under the instruction of the Sub-Divisional Magistrate, Titabor, seized the documents and oil tanker containing 4500 liters of petroleum product (suspected crude oil) from the premises of M/s Balaji Tea Industries on 18.5.2004 and also seized sample of the oil contained in 6 one litre gallons. Based on this FIR, Titabor PS Case No. 42/2004 aforementioned was registered. 3. During investigation, the police arrested the accused, Petitioner, namely, Kailash Kumar Agarwalla, and while forwarding the accused-Petitioner to the learned Chief Judicial Magistrate, Jorhat, the investigating officer alleged that during investigation, the police had seized some invoices/challans of furnace oil relating to purchase of 48,000 liters of furnace oil from M/s PG Oil Traders, Amguri, whose proprietor/owner is one Putul Gogoi, who is suspected to be involved in the commission of theft and sale of crude oil and against whom Pulibor PS Case No. 91/2003 under Section 379 and 411 IPC read with Section 3 of Prevention of Damage of Public Property Act, 1984 was under investigation and that the said M/s PG Oil Traders, Amguri, had not only sold suspected crude oil to the accused Petitioner but to other business houses as well. The forwarding report also disclosed that the sample from the seized oil had been sent to different places for experts opinion. On these premises, the investigating officer sought for, and obtained, the custody of the accused Petitioner along with his employees for as many as 6 days by two different orders passed on 19.5.2004 and 21.5.2004 in Titabor PS Case No. 42/2004 aforementioned. 4. On these premises, the investigating officer sought for, and obtained, the custody of the accused Petitioner along with his employees for as many as 6 days by two different orders passed on 19.5.2004 and 21.5.2004 in Titabor PS Case No. 42/2004 aforementioned. 4. On completion of interrogation of the arrested accused persons, the investigating officer, while producing the accused before the Chief Judicial Magistrate, Jorhat, and praying for not allowing the accused to be released on bail, submitted an additional forwarding report alleging, inter alia, that according to their investigation, the furnace oil need not be mixed with diesel, while using the same in the factory and the reports from the Forensic Science Laboratory and other experts were awaited, but in the meanwhile, the invoices seized from M/s Balaji Tea Industries had been verified. 5. The application for bail moved by the accused on 15.5.2004 itself, i.e., the date on which the accused was reproduced before the Court, was rejected by the learned Sub Divisional Judicial Magistrate (Sadar), Jorhat. 6. In the above backdrop, the present application for bail was moved before this Court. Though the case diary was called for the same has not submitted and no explanation has been offered by the State for its failure to produce the relevant case diary. However, a detailed report with regard to the case has been submitted by the State and the same has been carefully perused. Also perused the application for bail and other materials on record. 7. Heard Mr. B D Konwar, learned Counsel for the accused Petitioner, and Mr. FH Laskar, learned Addl. Public Prosecutor, Assam. 8. Upon hearing the learned Counsel for the parties and upon perusal the materials on record, what attracts the eyes, most prominently, is that one Putul Gogoi, who allegedly owns M/s PG Oil Traders, is suspected to be involved in the theft of crude oil from ONGC/IOC and sale thereof. It is, however, not in dispute that M/s PG Oil Traders is an authorized dealer for sale of petroleum products and does sell furnace oil from IOC Ltd. The materials on record also reveal that not only the accused, Petitioner, but many others purchase petroleum products from M/s PG Oil Traders. It is, however, not in dispute that M/s PG Oil Traders is an authorized dealer for sale of petroleum products and does sell furnace oil from IOC Ltd. The materials on record also reveal that not only the accused, Petitioner, but many others purchase petroleum products from M/s PG Oil Traders. The accused-Petitioner claims that M/s Balaji Tea Industries bonafide purchased the seized petroleum production, which is furnace oil, and payments therefore were made by A/c payee cheque against the requisite invoices as well as challans. That the accused Petitioner has so purchased the materials aforementioned is not presently denied by the investigating officer; but it is suspected that in the name of furnace oil, crude oil is being purchased by M/s Balaji Tea Industries. To ascertain as to whether the seized material is furnace oil or crude oil, some samples have been drawn from the seized oil and the same have been sent for opinion of the experts and opinions are awaited. 9. It is therefore, crystal clear that till date, there is no cogent material to show far less proof, that what was seized from the accused Petitioner was crude oil. Without such a satisfaction having been reached, the investigating agency ought not to have arrested the accused Petitioner, for, if it is assumed, for a moment, that the seized oil is found to be furnace oil, then, it cannot be said that the accused Petitioner purchased crude oil. A State, which runs by rule of law, cannot put on peril the liberty and freedom of its citizen on mere suspicion without having any cogent material that the oil seized is actually crude oil. This apart, the accused Petitioner has submitted that in furnace oil, some amount of diesel is, normally, mixed in order to avoid condensation in the tank and to avoid ignition problem in the burner, there being no statutory bar prohibiting mixing of diesel in furnace oil to generate more heat in the burner. There is nothing before this Court to show that mixing of diesel in furnace oil is an offence. 10. Coupled with the above, what is agitated in the FIR and also by the investigating agency is that the accused-Petitioner does not have the requisite licence for storage of furnace oil and that by such storage, the accused-Petitioner has committed an offence punishable under Section 23(1)(a) of the Petroleum Act, 1934. 10. Coupled with the above, what is agitated in the FIR and also by the investigating agency is that the accused-Petitioner does not have the requisite licence for storage of furnace oil and that by such storage, the accused-Petitioner has committed an offence punishable under Section 23(1)(a) of the Petroleum Act, 1934. Since the offence under Section 23(1)(a) is punishable by simple imprisonment, which, at the most, may extend to one month, it is not in dispute before me that the same falls under the first Schedule, contained in the Code of Criminal Procedure, and is bailable. Similarly, though nothing specific has been submitted before this Court to show as to what order framed under the/Essential Commodities Act has been violated by the accused Petitioner, Section 7, in the light of the law laid down in the case of State of Tamilnadu v. Parmasiva Pandian, reported in 2001 Cri L.J. 4772(SC) is now, bailable. 11. To a pointed query made by this Court, the learned Additional Public Prosecutor candidly concedes that there is no positive material on record to show that the oil seized from the premises of M/s Balaji Tea Industries, owned by the accused, Petitioner, is crude oil and/or that the seized oil purchased by the accused Petitioner, is stolen property and/or that the accused Petitioner purchased the seized oil knowing the same to be stolen proper Unless the accused-Petitioner is shown to be in possession of stolen property no responsibility lies on him to prove that tie is the bona fide purchaser thereof. In the case at hand, apart from the fact that so far, there is no definite material on record to show that the oil seized from the premises of the accused Petitioner's factory was a stolen property, the materials on record produced before this Court as well as before the police show, albeit tentatively and until contrary is shown, that the purchase of the said oil is a genuine transaction between the accused-Petitioner and M/s PG Oil Traders. 12. What, thus, crystallizes from the above discussion is that on the basis of the materials on record, further detention of the accused Petitioner will be ex facie illegal and unjust. 12. What, thus, crystallizes from the above discussion is that on the basis of the materials on record, further detention of the accused Petitioner will be ex facie illegal and unjust. This apart, the police had taken the accused Petitioner into their custody and have throughout interrogated him, they have not sought for further police custody of the accused Petitioner for the purpose of further interrogation, which indicate that no further interrogation of the accused Petitioner is required and that the police are merely awaiting the opinion of the experts. 13. Situated thus, I am firmly of the view that if the accused-Petitioner is allowed to go on bail, it will not hamper and/or adversely affect the further investigation of the case. 14. Considering, therefore, the matter in its entirety and in the interest of justice, the accused-Petitioner above-named is hereby allowed to go on bail of Rs. 25.000/- with two local sureties, each of the like amount, subject to the satisfaction of the Chief Judicial Magistrate, Jorhat. This direction for bail is further subject to the condition that the accused Petitioner shall make himself available for interrogation by police at all reasonable time and shall not leave the jurisdiction of the Chief Judicial Magistrate, Jorhat, without obtaining leave from the Court below. 15. With the above observations and directions, this bail application shall stand disposed of.