Full Judgment Text
2023 INSC 1021
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3512 OF 2023
Suresh & Ors. … Appellants
versus
State of Madhya Pradesh … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECT
1) The appellants invoked the jurisdiction of the High
Court under Section 482 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) for quashing First Information Report
(for short, ‘FIR’) registered against them for offences
punishable under Sections 420 and 120B of the Indian Penal
Code, 1860 (for short, ‘the IPC’) and Sections 3 and 7 of the
Essential Commodities Act, 1955 (for short, ‘the EC Act’). By
the impugned judgment, the High Court has dismissed the
petition seeking quashing of the FIR.
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.11.24
17:55:34 IST
Reason:
Criminal Appeal No. 3512 of 2023 Page 1 of 7
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2) On 7 October 2021, invoices were issued by Bharat
Petroleum Corporation Ltd. (‘BPCL’) in the name of MP
Bombay Auto Service Petrol Diesel Pump owned by the third
appellant for the sale and transportation of 9 Kilolitres each of
petrol and diesel through a particular tanker. It is alleged that
the subject fuel was shifted to another tanker due to the valve
failure in the original tanker. The first appellant was the
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driver of the tanker, which carried the subject fuel. On 11
October 2021, the SHO of Police Station Kishanpura District,
Indore, intercepted the truck while unloading the subject fuel
at the third appellant's petrol pump. The SHO recorded the
disclosure statements of the first and the second appellants.
The second appellant was the manager of Shivam Industries.
The truck was seized with the liquid inside. The police
collected samples from the four compartments of the tanker.
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The appellants were given arrest memos on 13 October
2021. On the same day, the samples collected by the SHO
were sent to State Forensic Laboratory. The Collector (Food)
instructed on the same day to send the samples collected
from the subject tanker to BPCL Quality Assurance
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Laboratory, Indore. On 14 October 2021, the aforesaid
impugned FIR was registered. The Forensic State Laboratory
at Indore recommended sending the samples to the Indian
Institute of Petroleum, Dehradun. According to the appellants'
case, BPCL Quality Assurance Laboratory submitted a test
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report on 19 October 2021, recording that the samples
conformed with the required specifications. In the meanwhile,
Criminal Appeal No. 3512 of 2023 Page 2 of 7
there was a show cause notice issued to the third appellant
under Section 6(b) of the EC Act, which culminated in an
order imposing a fine on the ground that the third appellant
could not produce an invoice authorising transportation
through the tanker in question and he did not seek
permission for opening the seal and lock of the tanker. The
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charge sheet was filed on 11 February 2022.
SUBMISSIONS
3) The learned counsel appearing for the appellants has
invited our attention to the material forming part of the
charge sheet. He pointed out that in the chargesheet, the
allegation is that fuel oil mixed with Hexin, C09, Pentane and
rover process oil were procured from Mumbai and Hazira
through Shivam Industries. The allegation is that if these
hydrocarbons are mixed in different proportions in a mixing
machine, the mixture looks exactly like petrol and diesel and
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has the same smell. The allegation is that on 11 October
2021, the hydrocarbon mixture was loaded in the intercepted
tanker. The learned counsel submitted that, admittedly, there
is no report obtained by the prosecution of any expert agency
about the nature of the liquid found in the intercepted truck.
Learned counsel invited our attention to the finding recorded
in the impugned order, which records that, though samples
were sent to the laboratory in charge of BPCL, a report from
the laboratory has not been received. He submitted that
taking the charge sheet and material therein as correct, there
is no material to show the nature of the liquid found in the
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tanker at the time of its interception. Hence, no offence was
made out.
The learned counsel appearing for the State relied upon
4)
the statement under Section 27 of the Indian Evidence Act,
1872 of the first appellant stating that he used to pick up
‘concocted fuel’ from Shivam Industries for distribution to the
fuel stations. He submitted that the issues raised by the
appellants can be decided only after the evidence is adduced.
He submitted that there is a violation of the Motor Spirit and
HighSpeed Diesel Oil (Regulation of Supply and Distribution
and Prevention of Malpractices) Order 2005 (for short, ‘the
Motor Spirit Order’). He would, therefore, submit that no case
was made out for quashing the FIR, as all the issues raised
can be decided only at the time of trial.
CONSIDERATION OF SUBMISSIONS
We have carefully perused the chargesheet. The
5)
allegation in the chargesheet is that hydrocarbons mixed in
different proportions by using mixing machines create a
mixture that looks exactly like petrol and diesel. It is alleged
that such a mixture smells like petrol and diesel. It is alleged
that Shivam Industries supplied the mixture and sold it to the
petrol pumps instead of petrol or diesel. It is alleged that by
cheating ordinary customers, the appellants are causing
illegal losses to the customers. Even the Government is
deprived of the tax which can be levied on petroleum and
diesel. It is alleged that after a search of Shivam Industries'
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factories, it was found that there were several tanks of
thousands of litres capacity, out of which five were found to
be filled with different hydrocarbons. As per the chargesheet,
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on 11 October 2021, the hydrocarbon mixture was loaded in
the tanker in question.
6) Thus, the prosecution's case is that a hydrocarbon
mixture was found in the seized tanker, which was being sold
by the appellants, representing it to be petrol or diesel. Along
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with a letter dated 13 October 2021, the police forwarded
four samples of the liquid seized from the tanker to the
Forensic State Laboratory at Sagar in Madhya Pradesh,
requesting the laboratory to submit an opinion on whether
petrol in the samples at Exhibit A and B is of human grade
used as a normal fuel in vehicles. The second question posed
to the laboratory was whether there is any standard level
petrol or diesel used as a normal fuel in samples C and D or if
the liquid has been adulterated. Similarly, the Collector (Food)
sent another set of samples to the State Level Coordinator,
IOCL, Bhopal, for testing. The impugned judgment notes that
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along with the letter dated 3 November 2021, samples were
also sent to the Laboratory Incharge, BPCL, Indore. It
appears that the laboratory in charge of the BPCL laboratory
has not submitted the result of the analysis. That is the
specific observation in the impugned judgment. By the order
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dated 27 March 2023, the learned counsel appearing for the
respondent was granted time to ascertain whether a report
was received from the laboratory of BPCL. The learned
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counsel for the respondent stated on instructions that till
date, the report of analysis has not been received.
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The appellants rely on the test report dated 19 October
7)
2021 submitted by Quality Assurance Laboratory, Mangliya
Depot, Indore of BPCL. The report confirms that the samples
conform to the HSD (BSVI) specifications. The submission of
the learned counsel appearing for the respondent is that the
said report is not a part of the charge sheet.
Though FIR was registered on 14th October 2021 and
8)
the charge sheet was filed on 11th February 2022, even as of
today, the expert’s report on the nature of the liquid found in
the seized tanker has not been produced. The entire
foundation of the charge sheet is that there was a
hydrocarbon mixture in the seized tanker, which looks
precisely like petrol and diesel and smells like petrol and
diesel. Along with the charge sheet, the respondent did not
produce an expert's report regarding the precise nature of the
liquid in the tanker. An expert’s opinion showing that the
liquid was neither petrol nor diesel, but the hydrocarbon
mixture has not been placed on record. As stated earlier,
samples were sent more than two years back for testing, and
a report has not yet been received. In the absence of the
report, taking the charge sheet as it is, no material is placed
on record to show that the liquid in the tanker was neither
diesel nor petrol but a mixture of hydrocarbons. The
allegation of cheating is also made on the footing that
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thousands of customers were supplied with the said mixture
instead of petrol or diesel. Unless there was a material
forming part of the chargesheet to show the nature of the
liquid, no offence is made out. Now, it is too late for the State
to file a report after a gap of more than two years. The
respondent was put to notice by this Court by the order dated
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27 March 2023 about the failure to produce the report.
However, the respondent has not attempted to get the report
during the last seven months. Even an adverse inference can
be drawn against the respondent. Hence, the continuation of
the prosecution will be an abuse of the process of law.
9) The appeal succeeds, and the same is allowed. We set
aside the impugned judgment of the High Court. The FIR No.
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727 dated 14 October 2021, registered with Kishanpura
District, Indore, and the consequent charge sheet filed
thereon are quashed and set aside.
10) The appeal is accordingly allowed on the above terms.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Pankaj Mithal)
New Delhi;
November 24, 2023.
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