Crl.Rev.Pet.No.3866 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** **Crl.Rev.Pet.No.3866 OF 2009** **AGAINST THE ORDER/JUDGMENT IN CRA 638/2008 DATED 26-09-2009 OF ADDITIONAL DISTRICT AND SESSIONS COURT, KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN CC 103/2006 OF CHIEF JUDICIAL MAGISTRATE ,KOZHIKODE** **REVISION PETITIONERS/APPELLANTS/ACCUSED:** - **1 C.V.HAMZA S/O.KUNHAMU, CHAMUNDI VALAPPU HOUSE, PANNIYANKARA AMSOM, KALLAI.** **2 H.A. ABBAS S/O. BEERAN, HAJIYRAKATH HOUSE, PANNIYANKARA, AMSOM, KALLAI.** ## **BY ADV. SRI.P.V.ANOOP** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI. M S BREEZ, SR. PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-07-2020, THE COURT ON 10-07-2020 PASSED THE FOLLOWING:** Crl.R.P.No.3866 of 2009 2 ## **M.R.ANITHA, J.** **--------------------------------Crl.R.P.No.3866 of 2009 --------------------------------Dated this the 10[th] day of July, 2020** ## **O R D E R** This Criminal Revision Petition has been filed against the concurrent finding of guilt, conviction and sentence passed against the revision petitioners. 2. Prosecution case is that on 23.03.2006 at about 17.00 hours accused were found to be keeping blue kerosene, to be given in subsidy by the Government, at Panniyankara Chamundi Valappu in the lonely property situated on the eastern side of the road for sale, without any permit or valid documents and thereby accused committed the offences punishable under Rule 16 of the Kerala Kerosene Control Order, 1968 r/w. Sections 3 and 7 of the Essential Commodities Act, 1955. 3. On the side of the prosecution, PW1 to PW6 were examined and Exts.P1 to P6 were marked. MO1 to MO11 were identified and marked. After the closure of prosecution evidence, Crl.R.P.No.3866 of 2009 3 accused were questioned under Section 313 Cr.P.C. They denied all the incriminating facts and circumstances put to them and there was no defence evidence. Thereafter, on hearing both sides, the trial court found both accused guilty under Sections 3 and 7 (1) (a) (ii) of Essential Commodities Act, 1955 and sentenced them to undergo rigorous imprisonment for six months each and to a pay fine of Rs.4,000/- each in default to undergo simple imprisonment for one month each. Against which, criminal appeal No.638/2008 was filed and as per the judgment dated 26.09.2009 the Additional District and Sessions (Fast Track Adhoc-I) Judge, Kozhikode, confirmed the conviction and sentence and dismissed the appeal. Aggrieved by the same, the revision petitioners came up in revision for various grounds stated in the memorandum of revision. 4. Notice was issued to the respondent and the respondent appeared through Public Prosecutor. Lower court records were called for and perused. Both sides were heard. 5. According to the learned counsel for the revision petitioners, sample was not sent for chemical analysis and hence it is not proved that the article alleged to have been seized is Kerosene. He would also contend that the possession or Crl.R.P.No.3866 of 2009 4 control over the articles seized by the accused persons was also not proved. The owner of the property from where the alleged article have been seized have not been examined. He would also contend that only PW3 an independent witness cited, turned hostile and according to PW6 it is a puramboke land and hence seizure of article from the accused persons also could not be proved and hence the conviction and sentence passed against the revision petitioners are not sustainable in law or on facts. 6. PW1 is the detecting officer, PW2 the police constable who accompanied him. PW6 who accompanied PW1 at the time of detection of the crime, subsequently conducted investigation of the case and filed the charge sheet against the accused. PW5 is the Inspector attached to City South Rationing Office during the relevant time who received the 8 barrels of kerosene (1450 ltrs) on 10.05.2006 at Panniyankara police station and according to him as per the Order of the Sub Divisional Magistrate it was handed over to the Kerosene dealers. 7. PW1 was the South Assistant Commissioner and his evidence is that upon getting a reliable information, along with PW6 and party he reached at Chamundi Valappu Mini beach at 17.00 hours and found some barrels in the property of Ummer Crl.R.P.No.3866 of 2009 5 Haji which is situated on the eastern side of the road and two persons were standing nearby and on examination, 8 barrels of 200 ltrs each containing blue colour kerosene were found without any documents for keeping the same. Hence being convinced of the unauthorised possession of the same for sale they were arrested. Arrest and inspection memo were marked as Exts.P1, P2 and P3. Samples were taken from all the barrels in 750 ml bottles each, sealed and seized and the sample bottles were marked as MO1 to MO8. He would also state that in the sample bottles signature of himself and accused and witnesses were obtained and the remaining kerosene were also sealed and labelled and it were marked as Exts.P1 to P8 and entrusted to the Civil Supplies Rationing Officer as per the order of the District Collector and MO9 is the iron barrel. MO 10 and MO11 are the mug and funnel respectively seized from the spot. Ext.P4 is the seizure mahazar prepared by him and thereafter he registered the crime as 40/2006 of Panniyankara Police Station and Ext.P5 is the FIR. 8. PW2 is the Constable who accompanied PW1 who also deposed in corroboration with PW1 regarding the seizure of the kerosene barrels and arrest of the accused persons. PW3 is the Crl.R.P.No.3866 of 2009 6 eyewitness who turned hostile though admitted the signature in Ext.P4 seizure mahazar. PW4 is the witness in the scene mahazar which is marked as Ext.P6. PW6 is the Sub Inspector of Police, Panniyankara who accompanied PW1 while seizing the articles and thereafter he conducted the investigation and questioned the witnesses, prepared the scene mahazar and finally concluded the investigation and filed the charge. 9. The main argument of the learned counsel for the revision petitioners/accused is about the failure of the prosecution to send the samples for chemical analysis. PW6 the investigating officer admitted during cross examination that he had not sent the samples for chemical analysis. Actually, the sample bottles were produced before court and have been marked as MO1 to MO8. So according to the learned counsel, prosecution failed to prove that the seized article is kerosene and that alone is sufficient to acquit the accused. In this context, the learned counsel took my attention to **Kunhimoideenkutty v. State of Kerala [1988 KHC 392]** wherein while dealing with Clause 16 of Kerosene Control Order, 1968 (Kerala), it has been held that in a case where samples of kerosene which is being seized from barrels by the officer not subjected to chemical Crl.R.P.No.3866 of 2009 7 analysis or any other scientific test, it would make it difficult for the courts to conclude the commodity of particular standard fixed by law. 10. In paragraph No.5 of the said judgment it has been discussed that Clause 2(a) of the Kerosene Control Order,1968(Kerala)(here after be referred as the Order) defines kerosene as “kerosene shall have the meaning assigned to it in item No.7 of the first schedule to the Central Excise and Salt Act, 1944 (Central Act 1 of 1944) and shall not include Aviation Turbine Fuel:” Item No.7 in the First Schedule to the Central Excise and Salt Act, 1944 defines kerosene as “any mineral oil (excluding mineral colza oil and turpentine substitute) which has a flame height of eighteen millimetres or more and is ordinarily used as an illuminant in oil burning lamps”. In explanation H of the said item it is mentioned that “flame height” shall be determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazette”. Explanation 1 of the said item defines mineral oil as an oil consisting of a single liquid hydro carbon or a liquid mixture of hydro carbons derived from petroleum coal-shale, peat or any other bituminous substance Crl.R.P.No.3866 of 2009 8 and includes any similar oil produced by synthesis or otherwise. Hence, it was stated that the definition postulates that the liquid must have a particular standard, if it is to be treated as kerosene under the Order. It shall not only be mineral oil of a particular variety mentioned therein, but its flame height shall be of a specified range. It is also stated that, in other words, if the range of the flame height is even one millimetre less than the standard fixed, the liquid would not be regarded as kerosene as defined in the Order even if it has the smell of kerosene and can be used as kerosene for any purpose. Finally, it has been concluded that, if the Supply Officers who inspect places of storage of such suspected commodities fail to take samples from such stocks and have them analysed in the laboratory, the consequence is inevitable that criminal courts would find it difficult to conclude that the commodity concerned is of the particular standard fixed by law. 11. Subsequently, in a Division Bench decision of this Court in **Manoharan Pillai v. State and Anr. [2005 KHC 682]** on a reference from a Single Bench of this Court, considered the correctness of the decision in Kunhimoideenkutty's case cited supra, while dealing with Clause 2(f) of Kerosene Control Order, Crl.R.P.No.3866 of 2009 9 1968 (Kerala), also categorically held that to satisfy the definition, the oil should satisfy the test of having a flame height of eighteen millimetres or more and is ordinarily used as a illuminant in oil burning lamps and it is also held that report of the Chemical Examiner that the contraband seized is “genuine kerosene” without the flame test is not sufficient for the purpose of prosecution. It is pertinent to note that in Manoharan Pillai's case cited supra, there was chemical examination report and the only defect was that smoke test was not conducted. Even in that situation this Court has categorically held that non-compliance of the smoke test indicates a nullification of the procedure and accused is entitled for benefit of doubt. 12. The learned counsel also cited **Saithalavi v. State of Kerala [2015 (5) KHC 696]** wherein while dealing with Section 3 and Section 7 of the Essential Commodities Act, 1955 and Kerosene Control Order, 1968 (Kerala) and Section 7 seizure of unauthorised quantity of kerosene, it has been held that in chemical examination for statutory offence under the Essential Commodities Act, requirement of smoke test is mandatory. It is also held that non compliance of the smoke test indicates a nullification of the procedure and accused is entitled to benefit Crl.R.P.No.3866 of 2009 10 of doubt. 13. In the present case, admittedly by the prosecution, samples were not sent for chemical examination and there is no report of the chemical examiner certifying the liquid seized as kerosene. So, in view of the settled position of law, without any further discussion, it can safely be concluded that the prosecution failed to prove that the articles seized from the barrels and the samples MO1 to MO8 are kerosene as defined in the Kerosene Control Order, 1968 (Kerala) which adopted the definition of item No.7 in the 1[st] Schedule of the Central Excise and Salt Act, 1944. So accused are entitled for benefit of doubt. Conviction and sentence concurrently passed against the accused persons by the courts below without adverting to the above aspect is illegal and unsustainable and is liable to be interfered with. 14. In view of the above finding, the argument advanced by the learned counsel about the failure of the prosecution to prove the possession or control of the seized article and that the owner of the property in which the articles were found has not been questioned etc need not be discussed further since it has been found that the prosecution was not able to prove that the Crl.R.P.No.3866 of 2009 11 liquid seized is kerosene as defined in the Order. In the result, conviction and sentence passed against the revision petitioners are set aside and the criminal revision petition is allowed and the revision petitioners/accused are acquitted. Bail bond executed by them stand cancelled and they are set at liberty. SD/- **M.R.ANITHA** Shg **JUDGE**