Saithalavi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 28TH DAY OF MAY 2015/7TH JYAISHTA, 1937** **CRL.A.No. 465 of 1997 (B)** **-------------------------AGAINST THE JUDGMENT IN ST 25/1994 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 30-08-1997** **APPELLANT(S)/1[st] ACCUSED IN S.T.:** **-------------------------------** **SAITHALAVI, S/O. AHAMMED KOYA, VALIAKATHU RESIDING AT VELUTHUPARAMBIL, VELIPRAM AMSOM, RAMANATTUKARA.** **BY ADVS.SRI.T.A.SHAJI (SR.) SRI.M.PROMODH KUMAR SRI.P.R.SREEJITH** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SRI. GITHESH.R.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **'C.R.'** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.465 of 1997 ---------------------------------------------Dated this the 28[th] day of May, 2015 ## **JUDGMENT** Appellant, who is the accused in S.T.No.25/199 on the file of Special Judge for Essential Commodities Act, Thrissur challenges the judgment of conviction and sentence under Section 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'E.C. Act' for short). He was sentenced to imprisonment for six months and fine of ₹ 2,000/- , in default of payment of fine, imprisonment for six months. 2. The facts necessary for indictment were that on 7.8.1992 at 4.15 p.m. the rationing Inspector, Kozhikode inspected the house of the appellant and detected 1010 litres Crl. Appeal No.465/1997 2 of kerosene kept in 5 big barrels in his courtyard and one small barrel in the bath room, in the house No.RP II/214of Velipram Amsom Desom, Ramanattukara. Immediately he reported the matter to his higher authorities and as per their direction reported the matter to the Feroke Police, where they registered a crime and after completing investigation, laid final report in the trial Court. 3. During trial, prosecution examined PWs 1 to 8 and marked Exts.P1 to P12 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The trial Court, after analysing the evidence, convicted the appellant. Being aggrieved by that judgment, he filed this appeal. 4. The learned counsel appearing for the appellant Crl. Appeal No.465/1997 3 contended that in a prosecution under Kerosene Control Order, it is mandatory to find out the flame height for identifying the seized article as kerosene. If the flame height of kerosene is not identified by conducting a smoke test, the trial will be vitiated. 5. The learned Public Prosecutor contended that the seized article was kerosene which was stated in the chemical examination report and no question was asked in the trial Court about the smoke test. The offence was detected before repealing the 1[st] schedule to the Central Excise and Salt Act 1944 and mineral oil seized from the possession of the accused is kerosene and no interference is necessary. 6. Now the first question to be considered in this case is whether the prosecution has proved that the 4 Crl. Appeal No.465/1997 seized articles are kerosene? Secondly, if so the appellant had violated the Kerosene Control Order and he was in possession of huge quantity of kerosene as alleged? When an offence is created by a special Statute and the mode in which the penalty should be imposed is provided in that Statute, it can proceed in that manner and impose that penalty in the mode provided therein alone and no other mode. At the same time, when the provision of an act imposes a particular test for finding out any offence, such provision must be strictly construed and do not create any implied presumption. For this, I have verified the allegation in this case and examined what is the meaning of the word kerosene, in the Kerosene Control Order, 1968 and Kerosene (Restriction on use and fixation of Ceiling Price) Order 1993. The Kerosene Control Order 1968 was Crl. Appeal No.465/1997 5 issued by the Government for maintaining the kerosene and for securing its equitable distribution and availability at fair price. The definition of 'Kerosene' in Clause 2 (f) of the Kerosene Control Order 1968 defined that “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. Subsequently, the Central Excise and Salt Act 1944 First Schedule was omitted and the Kerosene (Restriction on use and fixation of ceiling price) Order, 1993 published in the Gazette of India, Extraordinary, Part II, Clause 3(i) dt. 2.9.1993, in clause 2 (e) “kerosene” defines as follows. “(e) “Kerosene” means a middle distillate mixture of hydrocarbons meeting BIS specification No.: IS-1459 of 1974 with important characteristics Crl. Appeal No.465/1997 6 of flash point at a minimum of 35o C and smoke point at a minimum of 18 mm.” A plain reading of the definition extracted above prescribes that if the liquid is kerosene it must have important characteristic of minimum flash point and smoke point. As per item 2710.19 of the schedule to the Central Excise Tariff Act, a liquid to be kerosene, it must have a smoke point of eighteen millimeters or more. According to the definition, it means a middle distillate mixture of hydrocarbons meeting BIS specification No: IS-1459 of 1974 with important characteristics of flash point at a minimum of 35[o] C and smoke point at a minimum of 18 mm. However, if the flame height is less than the standard fixed, the liquid would not be regarded as kerosene. 7. It is true that the detection in this case was made before repealing the 1[st] Schedule to the Central Crl. Appeal No.465/1997 7 Excise and Salt Act 1944. Before repealing, a similar question was considered by this Court in **Kunhimoideenkutty** v. **State of kerala** [1988 (2) KLT 128]. It was therein explained the importance of scientific test to ascertain the flame height in a prosecution under the Kerosene Control Order 1968 to identify the liquid as kerosene. His Lordship Justice K.T. Thomas explained the law as follows: “Clause 2(a) of the order defines kerosene thus: “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 be 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 II (of the said item) it is mentioned that “Flame height” shall be determined in the appratus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazettee.”. 8 Crl. Appeal No.465/1997 Explanation 1 of the said item defines mineral oil as an oil consisting of a single liquid hidro carbon or a liquid mixture of hidro carbons derived from petroleum coal-shale, peat or any other bituminous substance and includes any similar oil produced by synthesis or otherwise.“ 8. The relevancy of smoke test for identifying kerosene had been explained by his Lordship in **Kunhimoideenkutty** v. **State of Kerala** [1988 (2) KLT 128], which was doubted by a single judge of this court and that **Manoharan Pillai** v. was answered by the Division Bench, in **State and another** [ILR 2005(2) Kerala 269]. It was ## observed: “Repeal of First Schedule of the Central Excise and Salt Act, 1944 subsequently will not make any difference as when clause 2(f) was drafted, definition of 'kerosene' in item 7 of First Schedule as existed on that date was incorporated. We also note that even when First Schedule was repealed and in its place the schedule to the Central Excise Tariff Act, 1985 was substituted for the purpose of reference in Crl. Appeal No.465/1997 9 any Central Act. No substantive changes were made to the definition of 'kerosene' in the schedule to the later enactment. As per item 2710.19 of the schedule to the Central Excise Tariff Act, to be kerosene, it must have a “smoke point of eighteen millimeters or more”. But, minimum height was not tested for finding out the flame/smoke point in this case, in Indian standards, specification of 'kerosene' also requiring minimum smoke point of 18 millimetres is prescribed. It is well settled law that when a word is defined in the statute, Court is bound by the definition. Only if the definition is not clear or capable of two interpretations, Courts need to find out whether a restricted or extensive meaning has to be adopted depending upon the context and object of the legislature.” A perusal of the above decision shows that when a word is defined in the Statute, naturally the Court is bound by the definition. On the contrary, if the definition is not clear or two interpretations are possible, Court need to find out whether a restricted or extensive meaning has to be adopted depending upon the context and object of the enactment. When Statutes provides for minimum smoke Crl. Appeal No.465/1997 10 point of 18 millimeter, prosecution has to conduct smoke test as per Indian standard provided for specification of kerosene. 9. The Chemical Examiner's report shows that he had conducted certain test in the laboratory and issued a certificate. Chemical Examiner's report received on 25.4.1994, after a period of two years, in which it is seen that he received the sealed bottles labelled “Cr.65/92 Feroke P.S.” marked as item Nos.1 and 2 each containing 750 ml of a clear colourless liquid with the smell of kerosence oil. The seals on the bottles were intact and found tallied with the sample seal provided. In the analytical data of the report, parameters of the two items were the same. Colour and appearance of each item were 'colourless clear'. The odour was smell of kerosene. Crl. Appeal No.465/1997 11 Specific gravity was 0.80 each. Flash point was 36[o] C each. Percentage collected below 200[o] C is 43ml each. Final boiling point was 280[o] C each. Thin layer chromatography test for kerosence oil (1 & 2) is positive. The samples covered by item Nos.1 & 2 were identified to be genuine kerosene oil. From the above chemical analysis report, it is clear that the smoke test was not conducted in the chemical examination. Therefore, the prosecution has to prove that the seized article has characteristic of flash point at a minimum of 35[o] C and smoke point at a minimum of 18 mm in this case. In the absence of any smoke test as provided 'IS' standard, it is difficult to accept Ext.P2 the chemical examiner's report for a conviction. It is clear that chemical examiner has not conducted any flame height test and Ext.P2 do not create any implied Crl. Appeal No.465/1997 12 presumption about smoke test. 10. Appellant disputed the possession of the house from where the seizure was made. The expression possessed is used in certain statutory offences, in which conscious possession is necessary for proving the offence. Thus possession for the purpose of the Act means physical possession with animus custody or domain over the property. In the instant case, PW5, the Executive Officer, Ramanattukara Panchayat produced Ext.P5 extract of the building tax register which shows appellant is in possession of the building. In Ext.P6, the Village Officer, Ramanattukara reported that appellant is in possession of the property comprised in Sy. No.500/2 of Ramanattukara Village from where the article seized. Analysing the evidence of PW1, PW5 and PW6 it is found 13 Crl. Appeal No.465/1997 that the City Rationing Inspector on 7.8.92 searched appellant's house and seized certain article. 11 **.** It is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless the prosecution proves the guilt of the accused beyond reasonable doubt. Generally speaking, they can rely both oral and documentary evidences to prove that the accused had committed the offence with requisite mens rea. The domain of criminal cases can be ascertained by examining, what act or omissions are declared by the State to be crimes. Ordinarily every crime created by a Statute, however comprehensive it may be the element of mens rea is required on the part of the actor. But there may be cases in which while providing penalty, legislature completely rules out the principle of mens rea, but certain Crl. Appeal No.465/1997 14 statute which deals with public welfare insists principle on strict liability, eg. Statute regulating sale of food and drink. Therefore, penal statute must be construed strictly. An accused cannot be convicted on the basis of conjectures or suspicions. 12. Before concluding I may observe that the samples covered by item No.1 & 2 were not identified as kerosene, since no smoke test was conducted, therefore Ext.P12 chemical examiner's report is not admissible in law for a conviction. Normally statutory offence like this, the requirement of smoke test is mandatory. The noncompliance of the smoke test indicates a nullification of the procedure. It is true that there is no ready test or formula to determine a provision mandatory or not, but weighing the consequence of the non-compliance, the Crl. Appeal No.465/1997 15 appellant is entitled to get the benefit of doubt. Accordingly, the conviction and sentence under clause 16 of the Kerala Kerosene Control Order, 1968 r/w. Sections 3 to 7 of the E.C. Act are hereby set aside. The appellant is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.465/1997 16 Clause 2(f) of Kerala Kerosene Control Order, 1968 defines as follows: “2. Definitions.- In this order, unless the context otherwise requires,(a) xxx xxx (b) xxx xxx (c) xxx xxx Crl. Appeal No.465/1997 17 (d) xxx xxx (e) xxx xxx (f)”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 of 1944) and shall not include Aviation Turbine Fuel.” Clause 2(e) of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 defines as follows: “2. Definitions.- In this order, unless the context otherwise requires. (a) xxx xxx (b) xxx xxx (c) xxx xxx (d) xxx xxx (e) “kerosene” means a middle distillate mixture of hydrocarbons meeting BIS specification No.: IS-1459 of 1974 with important characteristics of flash point at a minimum of 35o C and smoke point at a minimum of 18 mm.” Crl. Appeal No.465/1997 18