IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2772 of 2007()
1. SALU,S/O.PAULOSE,KOLANATTU PARA,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/11/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 2772 OF 2007 B
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Dated this the 6th day of November, 2007
O R D E R
This revision has been filed by the 2nd accused in
C.C.No.146/07 on the file of JFCM-II, Ernakulam. The above case
arose out of crime No.189/1993 of Ernakulam Town North Police
Station for an offence punishable under section 6 of the Kerala
Motor Spirit and High Speed Diesel Oil(Maintenance &
Regulations of Supply) Order, 1979 read with sections 3 and 7(1)
(e)(ii) of the Essential Commodities Act, 1955. The occurrence in
this case was on 2.8.1993 when the three accused persons are
alleged to have pilfered diesel from a tanker lorry for the purpose
of clandestine sale.
2. Five items of properties including two sample bottles of
diesel were produced before the Special Court at Thrissur for trial
of cases under the Essential Commodities Act and were received
in Court as T.No.607/1993. The said items of properties consisted
of the tanker lorry involved in the case as well. The lorry was
released to the owner on kychit by the Special Court. Th two
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sample bottles produced before the Court were intended to be
despatched to the Chemical Examiner for analysis. Pursuant to
the verdict of the Hon’ble Supreme Court, the Special Court at
Thrissur was abolished and the present case was transferred to
JFCM-II, Ernakulam, where it is pending as C.C.No.146/07. The
revision petitioner/2nd accused was an applicant for a passport and
consequent on the passport authority refusing to issue a passport
to him, when he made enquiries it was revealed that the present
crime was pending against the revision petitioner and that was the
reason for the refusal to issue a passport to him. Thereupon the
revision petitioner approached this court by filing
Crl.M.C.No.2407/04 to quash the proceedings contending that the
threat of prosecution was haunting him for the past 12 years
without any sign of the same terminating either way. This court
closed the Crl.M.C. as per Annexure-A1 order dated 11.8.07
reserving the right of the petitioner to plead for a discharge before
JFCM-II, Ernakulam. Thereafter, the petitioner moved the
Magistrate for discharge. As per the impugned order dated
15.6.07, the Magistrate held that the petitioner/accused is not
entitled to get a discharge since the sample bottles of diesel were
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reported to be either damaged, lost or could not be found out in
the Special Court at Thrissur and that the matter was reported to
the High Court and orders were awaited from the High Court
regarding those samples. The learned Magistrate was of the view
that the accused cannot be discharged before getting orders from
the High Court regarding the missing samples. It is the said order
which is assailed by the 2nd accused in this revision.
3. This court directed the Registry to ascertain from the
Special Court where the case was originally instituted, as to
whether the sample bottles had been traced out, and if not,
whether any enquiry was conducted in the matter and what was
the result of such enquiry, if any, conducted. As per
communication dated 14.8.07 JFCM-II, Ernakulam also reported
that the sample bottles which were items 4 and 5 in the property
list could not be traced out and the Motor Accidents Claims
Tribunal, Thrissur, which is the court which has occupied the
premises of the Special Court after its abolition, has also reported
that the list of material objects damaged or lost could not be found
out. The learned Magistrate also reported that eventhough he had
deputed a police constable directly to the MACT, Thrissur to
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conduct a search and collect the sample bottles, the said attempt
was also in vein. Under these circumstances, the Registry was
directed to conduct an enquiry preferably through the Registrar-
Vigilance with regard to certain matters indicated in the direction of
this court. Accordingly, Registrar-Vigilance has conducted an
enquiry. In the detailed report dated 1.10.2007 submitted by the
Registrar-Vigilance it has been stated that the sample bottles are
not traceable and that the samples were also not subjected to
chemical examination.
4. In order to bring home the guilt of the accused the
prosecution will have to prove that the liquid which the accused
was allegedly seen pilfering from the tanker lorry was high speed
diesel oil which is one of the components of the “petroleum
product” as defined under section 2(e) of the Kerala Motor Spirit
and High Speed Diesel Oil(Maintenance & Regulation of Supply)
Order, 1979. It is only if the liquid which was seen pilfering
satisfies high speed diesel oil which in turn is a “petroleum
product” covered by section 6 of the said Order can the
prosecution expect to secure a conviction against the accused. It
is only if section 6 of the above Order is attracted, can it amount
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to an offence punishable under section 7 of the Essential
Commodities Act, 1955. Eventhough the learned Public
Prosecutor submitted that the matter should go for trial during
which the detecting officer may be able to identify the liquid as
high speed diesel oil, even for identifying the same, the property
should be available for examination in court. That apart, if the
detecting officer was competent enough to identify the oil as high
speed diesel oil without any difficulty, then there was no need for
drawing sample for the purpose of forwarding the same to the
chemical examiner for analysis and report. Under these
circumstances, it will be an exercise in futility to allow the trial to
proceed. This is a case where the revision petitioner has been
subjected to the trauma of a proposed trial keeping the sword of
Damocles hanging over his head for the past 14 years. It will be a
travesty of justice to permit the proceedings to drag on further
without any useful purpose being served. Having regard to the
futility of the trial and the inordinate delay for which the revision
petitioner cannot be blamed, I see no reason to compel the
petitioner to the avoidable ordeal of a trial. The dismissal of the
petitioner’s application for discharge by JFCM-II, Ernakulam as per
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the impugned order dated 15.6.07 cannot, therefore, be sustained.
The impugned order is accordingly set aside and the accused is
discharged of the offences referred to above.
In the result, this revision is allowed as above.
(V. RAMKUMAR, JUDGE)
aks