Analysis Report Not Sufficient To Prove That Samples Fell Within Purview Of Kerosene Control Order: Himachal Pradesh High Court Acquits Accused
The Himachal Pradesh High Court allowed a Criminal Revision Petition challenging conviction under the Essential Commodities Act.
Justice Rakesh Kainthla, Himachal Pradesh High Court
The Himachal Pradesh High Court has acquitted a man from the offence under Section 7 of the Essential Commodities Act, 1955 (EC Act), saying that the analysis report was not sufficient.
A Criminal Revision Petition was filed before the Court, challenging the Judgment of the Sessions Judge by which the accused was convicted.
A Single Bench of Justice Rakesh Kainthla observed, “… the report of the analysis is not sufficient to prove that the samples analysed fell within the purview of the Kerosene Control Order. … Both the learned Courts below did not advert to these aspects of the case and simply proceeded based on the possession of 170 litres of kerosene oil; therefore, the judgments passed by them cannot be sustained.”
Advocate Adarsh Sharma appeared on behalf of the Petitioner/Accused, while Deputy Advocate General (DAG) Tarun Pathak appeared on behalf of the Respondent/State.
Case Background
The police presented a challan against the Petitioner-accused before the Trial Court for the commission of offences punishable under Sections 3 and 7 of EC Act. It was alleged that in December 2008, a vehicle came from Nalti towards Hamirpur at about 4.45 a.m., and the police signalled the driver to stop the vehicle. The police checked the dickey of the car and allegedly recovered eleven containers containing 170 litres of kerosene oil. It was further alleged that the police demanded a permit for transporting the kerosene, but the accused could not produce any permit.
The police seized the vehicle and the containers and one bottle each was taken out of each of the containers for chemical analysis. The container and the bottles were sealed and thereafter, an investigation took place. The result of the analysis was issued, mentioning that blue kerosene was detected in the sample bottles. The blue colour was being used by the Public Distribution System in kerosene. Subsequently, the Trial Court convicted the accused and sentenced him to undergo simple imprisonment for 6 months along with a fine of Rs. 1,000/-. Being aggrieved, he was before the High Court.
Reasoning
The High Court after hearing the contentions of the counsel, noted, “The prosecution has based its case upon Kerosene (Restriction of Use and Fixation of Prices Order), 1993 (in short Kerosene Order). Clause 3 of the Kerosene Order provides that no person shall use kerosene supplied under the Public Distribution System for any purpose other than cooking or illumination, and no dealer shall sell, distribute or supply kerosene under the Public Distribution System to a person other than one to whom the supplies are meant. Clauses 4, 5 and 6 deal with the obligations of the dealer. Clause 7 with the obligation of the parallel marketeer.”
The Court said that it is not the case of the prosecution that the accused is a dealer or that he had used the kerosene for a purpose other than cooking and illumination and rather, he was simply found in possession of 170 litres of kerosene without any permit.
“Punjab and Haryana High Court in Abdul Rashid v. State of Haryana, 2013, that the prosecution is required to prove that the accused was a dealer appointed under the Public Distribution System, in the absence of which a person cannot be punished for violation of the order”, it added.
The Court also referred to the decision of the Madhya Pradesh High Court in the case of Banti Gupta v. State of Madhya Pradesh (2016), in which it was held that a person cannot be prosecuted for possessing the seven drums of kerosene in the vehicle unless it is shown that he was running a shop under the Public Distribution System.
“Hon’ble Supreme Court held in Ipour GKC & RKC & Sons v. State, (2008) that the restriction imposed by Pondicherry Kersone Control Order was on the sale and not on the purchase, and the purchaser cannot be held liable”, it further observed.
Accordingly, the High Court allowed the Revision Petition, set aside the impugned Judgment, and acquitted the accused.
Cause Title- Rakesh Kumar v. State of H.P. (Neutral Citation: 2025:HHC:37077)
