High CourtDivision Bench2008-08-28Appeal Allowed

M/S IPOUR GKC & RKC & SONS & ANR. v. STATE REP. BY STATION HOUSE OFFICER PONDICHERRY & ORS.

Case / Petition Number:Criminal Appeal No. 504 of 2001

Neutral Citation:(2008) 12 S.C.R. 892

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
Dr. Mukundakam Sharma
Judgment Date: 2008-08-28
Court Decision / Holding: Appeal allowed. The bail bonds executed by the appellants for release on bail shall stand discharged.
Final Disposition: Appeal Allowed

Parties to the Case

Appellants / Petitioners

M/S IPOUR GKC & RKC & SONS & ANR

Respondents

State rep. by Station House Officer Pondicherry & Ors.

Legal Representation & Advocates

Counsels for Petitioners

• M. Karpaga Vinayagam
• Anil Kaushik
• Shiv Prakash Pandey
• Gopal Singh

Counsels for Respondents

• A Prabhuramasubramanian

Case Synopsis & Summary

Seven accused including a partnership firm A1 and its partner A2 were charged under Clause 13 of the Pondicherry Kerosene Control Order, 1969, read with Section 7 of the Essential Commodities Act, 1955, for allegedly dealing kerosene to unlicensed entities. A tanker lorry from Madras purportedly delivered 11,000 litres of kerosene to the A1 firm; at the Pondicherry check-post the vehicle was found empty. The statements of the driver (A3) and cleaner (A4) that the goods were sold en route were not signed. The trial court acquitted all accused; the High Court, on appeal, convicted the firm and its partner while maintaining acquittal of several others. On appeal the Supreme Court held that the unsigned statements could not implicate the appellants; the evidence did not show a sale anywhere along the route, and there was no investigation or steps to confirm sale. Even if the receipt (Ex. P2) was not established, that refers to purchase, not sale; thus Clause 13 read with Section 7 has no application. The trial court’s acquittal was correct, and the High Court’s conviction could not be sustained. The appeal was allowed and the bail bonds executed by the appellants were discharged.

Provisions of Law Cited

Clause 13 of Pondicherry Kerosene Control Order, 1969Section 7 of the Essential Commodities Act, 1955

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that Clause 13 of the Pondicherry Kerosene Control Order, 1969 read with Section 7 of the Essential Commodities Act, 1955, cannot be invoked on the facts since the prosecution relied on unsigned statements of A3 and A4 and there is no admissible proof of sale. The trial court found no evidence that the kerosene was sold en route, and the High Court's conviction of the firm and its partner rests on similarly ill-placed inferences from unsigned statements and documents that do not establish sale by the appellants. The receipt noted by the prosecution concerns receipt of kerosene rather than its sale to a person approved by licensing, and even if the receipt is not proved, purchase evidence cannot establish the alleged sale. The provisions are designed to regulate wholesale sales and prevent diversion; absent sale or authorized buyer, the elements of Clause 13 are not satisfied. On these grounds the acquittal of the appellants by the trial court is proper and the High Court's concurrent conviction cannot be sustained. The appeal should be allowed, restoring acquittal and discharging the bail bonds.

Contentions of Respondents

The State contends that the appellants did receive and sell 11,000 litres of kerosene by a check-post discovery and the series of documents including Ex. P2 indicate shipments to the firm; however, some documents are not relatable, but the court should view the matter in totality and view the issue of sale to be proven beyond reasonable doubt. The licensing regime requires sale only to wholesale dealers or registered dealers; the prosecution's theory is that sale occurred to a dealer or agent, which would violate Clause 13. The High Court's reversal of acquittal as to the other co-accused and the conviction of A1 and A2 was consistent with the evidence on record; the State requests that the conviction be restored; but the Supreme Court would analyze the evidentiary material and hold that the unsigned statements cannot convict; the evidence does not prove sale and there is no mechanism of investigation that confirms sale. The State seeks to sustain the conviction under Clause 13.

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Extracted Judgment Text

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(2008) 12 S.C.R. 892 r A ## M/S. IPOUR GKC & RKC & SONS & ANR. _v._ STATE REP. BY STATION HOUSE OFFICER PONDICHERRY & ORS. (Criminal Appeal No. 504 of 2001) B ## AUGUST 28, 2008 ## [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] c _Pondicherry Kerosene Control Order, 1969/Essential Commodities Act, 1955_ - _Clause 131 s._ 7 - _Violation of the provisions_ - _Vehicle reporting carrying kerosene for the accused firm found empty at check-post...:. Driver and cleaner of the vehicle stated to have sold the kerosene on the way_ - D _[Prosecution ][of ][the ][firm, ][its partner, driver, cleaner and retail ] dealers on the basis of the statement_ - _Trial court acquitting all the accused_ - _High Court convicting the firm and its partner_ - _On appeal, held: The provisions are not. applicable to the present case so as to warrant conviction of the firm and its partner._ c E Seven accused were charged for having violated Clause 13 of Pondicherry Kerosene Control Order, 1969. Appellant-A1 was a partnership firm-wholesale dealer of kerosene. Appellant-A2 was. the partner of the firm, A3 F[and A4 were the ][driver ][and cleaner respectively ][of ][the ] vehicle in which the kerosene was being imported to A·1 firm. AS, AG and A7 were the retail dealers of kerosene. According to prosecution, the v~hicle reporting import of 11,000 litres of kerosene, when was stopped G and checked at the checkpost, it was found empty. Statement of A3 (driver) was recorded to the effect that he had sold the oil on the way. The statement, however, was not signed by him. Prosecution was initiated. Trial court acquitted all the accused. High Court convicted A1-firm H 392 H ).... _?_ ~ -L I '· + .\, --+ M/S. !POUR GKC & RKC & SONS & ANR. _v._ STATE 893 REP. BY STATION HOUSE OFFICER and A2-Partner and upheld acquittal as regards other. A accused. Hence the present appeal. . Allowing the appeal, the Court HELD:Both the trial Court and the High Court held that A3 is purported to have made a statement that he B had sold the kerosene on the way. Similar statement was purportedly given by A4. But the officials proceeded to act on the aforesaid statements which were undisputedly not signed statement. Apart from the fact that the said statement did not in any way implicate the c appellants, the effect of such statement to find the appellants guilty has been lost sight of by the High Court. The trial court found that there was no evidence to show and no steps were taken and no investigation was focused, as to whether the articles were sold on the 0 way. The categorical findings of the trial Court and the High Court were that no suc.h sale took place. Even if the stand of the prosecution is accepted that the receipt was not established, that would in a sense relate to the purchase and not to sale and, therefore, Clause 13 of Pondicherry Kerosene Control Order, 1969 read with E Section 7 of the Essential Commodities Act, 1955 do not have any application. The trial Court was, therefore, justified in directing acquittal of the appellant and the High Court without properly analyzing the legal position directed conviction. [Para 6] [895 H 896 A,B,C,D] F CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 504 of 2001 From the final Judgment and Order dated 22.11.2000 of the High Court of Judicature at Madras in Criminal Appeal No. 401 of 1993 G . ,; M. Karpaga Vinayagam, Anil Kaush1k, Shiv Prakash Pandey and Gopal Singh for the A.ppellants. V. Kanakraj, S.J. Aristotle. V.G. Pragasam and H (2008] 12 S.C.R. 894 SUPREME COURT REPORTS A Prabhuramasubramanian for the Respondent. .......- The Judgment of the Court was delivered by **Or.** ARIJIT **PASAYAT, J.** 1.Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High 8,.,[Court setting aside the judgment of acquittal rendered by learned ] Special judge, Pondicherry in STR No .. 95 of 1984 so far as the appellants are concerned while upholding the acquittal in respect of five others. -,,.___ 2. The seven accused persons faced trial in the following c manner: The charges against the accused/appellants are that Al is a.partnership firm and A2 is the partner of the firm, A3 is the Driver of the Vehicle concerned and A4 is Cleaner, while A5, A6 .and A7 are said to be retail dealers of Kerosene. The D Hindustan Petroleum Corporation Limited from Madras is distributing Kerosene to A 1 firm at Pondicherry and Al firm has to observe Clause 13 of the Pondicherry Kerosen.e Control Order, 1969 (in short the 'Control Order') and sell the Kerosene E[only to another wholesale dealer licensed under that order or to ] registered dealer or to any institution or person approved by . the licensing authority. Such sales shall be in such quantities and or such intervals, as the licensing authority may, by general or special order, direct. F The prosecution case is that on 15-07-1984, at about 6 p.m. one tanker lorry PYZ-5699 was brought to the check post from Madras reporting import of 11,000 litres of Kerosene to Al firm and the driver also paid octroi of Rs.110/- vide receipt No.966260 dated 15-07-1984. After looking at the invoice No. G[6124 dated 01-07-1984, which has been marked ][as ][Ex.P2 ] Series, the authorities entertained suspicion because the dispatch was on 14. 7.1984 and when they checked the vehicle they found it empty. Therefore, the driver was questioned, who gave statement (Ex.P3) written in his own hand writing, but did H[not sign and escaped with A4 cleaner. Therefore, a case was ] _r-_ I t- _*_ +- ' + .... .. M/S. !POUR GKC & RKC & SONS & ANR _v._ STATE 895 REP BY STATION HOUSE OFFICER [DR ARIJIT PASAYAT, J.] regist~red against A 1 firm as well as A2 partner alongwith driver A and ~ieaner besides charging AS, A6 & A 7 who are the retail sellers of kerosene to whom A 1 claimed to have suld the kerosE;!ne. ~·:·The trial Court on consideration of the evidence came to ·, hold t~at the accusations have not been established. The State"[8 ] of Pondicherry filed an appeal before the High Court questioning thediidgment of acquittal recorded by the trial court. By the , · ~ impugn.ed order the High Court set aside the acquittal so far as · the present appellants are concerned while dismissing the spme. qu~ ~h~ other five co-accused persons. c c ..:,. ti . · 3.: Learned counsel for the appellant submitted that the. High· Court has lost sight of the fact that the ingredients.· ne~es~ary to bring in application of clause 13 of the Control . Order bave not been established and, therefore, the conviction~ D as-recorded by the High Court cannot be sustained. It is pointed ' outJhat the basis for the proceeding against the appellant was (;!ll~g~d· statement of A3, who has been acquitted by the tria! , .court and the same has been upheld by the High court. 4. Learned counsel for the respondent-State on the other .. E , hand submitted that the appellants produced certain documents to show receipt of the 11,000 litres of kerosene. But on verification it was noticed that those documents are not relatable ~nd, therefore, the High Court was justified in finding the app.eUants guilty. F 5. Clause 13 of the Control Order reads as follows: · •'13. Restriction on sale of kerosene - No wholesale dealer .. sha}I sell kerosene, except to another wholesale .dealer licensed under this order or to registered dealer or to any G . , , · irtstitution or person approved by the licensing authority. Su9h •. sales shall be in such quantities and at such intervals, as the .. licensing authority may, by general or special order, direct." . 6. A bare perusal of the provision shows that it is relatable " • /,; . • .. • {<. SUPREME COUR.T R~PORTS ·, 896 [2008] 12 S.C.R. A purported to have made a statement that he had soid the kerosene on the way. Similar statement was purportedly given by A4. But the officials proceeded to act on the aforesaid statements which were undisputedly not signed statement. Apart from the fact that the said statement did not in any way implicate s the appellants, the effect of such statement to find the appellants · guilty has been lost sight of by the High Court. The trial court foun:i that there was no evidence to show and no steps were taken and no investigation was focused, as to whe.ther the articles were sold on the way. The categorical findings of the c trial Court and the High Court were that no such sale took place. Even if the stand of the prosecution is accepted that the receipt was not established that would in a sense relate to the purchase and not to sale and, therefore, Clause 13 read with Section 7 of the Essential Commodities Act, 1955 (in short the 'Act') do not have any application. The trial Court was, therefore, justified 0 in directing acquittal of the appellant and the High Court without propPrly analyzing the legal position directed conviction which canPot be maintained. 0 ........... 7. The appeal is allowed. The bail bonds executed by the E appellants for release on bail, pursuant to the order dated 20.4.2008 shall stand discharged. K.K.T. Appeal allowed. + •.