JUDGMENT
1. This is an appeal filed by A1, A2 and A3 in STC No. 14 of 1993 on the file of the III Additional Metropolitan Sessions Judge-cum-Special Judge for trial of Essential Commodities Act, Hyderabad against their conviction for the offence under Clause 25 of the A.P. Petroleum Products (Licensing and Regulation of Supplies) Order 1980 punishable under Ss. 7 and 8 of the Essential Commodities Act and sentence of rigorous imprisonment for a period of six months each and to pay a fine of Rs. 2,000/- each.
2. The case of the prosecution is that A1 is the dealer of petroleum products, A2 is the manager of A3 firm and A3 is the firm represented by A1. PW 2 the Vigilance Inspector along with Panchayatdars PW 1 and another, visited the business premises of A3 firm on 27-9-1991 at 11.00 a.m. and conducted the density test, verified the stocks in the presence of panch and he obtained samples of High Spirit Diesel and Motor Spirit (petrol) in the presence of panchdars under Ex. P 1 and sent them to the analyst for proof of standard with a letter of advice on 28-9-1991 and he also registered the Ex. P 1 as Crime No. 40/VC.MBNR/91 and issued FIR under Ex. P 2. Ex. P 3 is the letter of advice dated 28-9-1991 and Ex. P 4 is the certificate of authority. PW 4 received the said sample bottles on 4-10-1991 with seals intact, with letters of advice. He conducted the test in the laboratory by following the method of test IS-1148; He conducted only one test for density; He noted the density of HSD as 0.8397; and or Motor spirit as 0.7210; Ex. P 5 and Ex. P 6 are the reports of PW 4 with regard to the densities of HSD and MS respectively found by him. After receipt of the Analyst Reports PW 3 filed the charge-sheet against the accused alleging that the density of HSD is more than permissible limits and thus they indulged in selling adulterated M.S. and violated clause 25 of the A.P. Petroleum Products (Licensing and Regulation of Supplies) Order 1980 and Clause 5 of M.S. & H.S.D. (Prevention of Malpractices in Supplying and Distribution) Order 1990, read with Ss. 7 and 8 of E.C. Act. When questioned the accused denied the charge and claimed to be tried. To prove its case the prosecution examined PWs. 1 to 4 and marked Ex. P 1 to P 8. When examined under S. 313, Cr.P.C. with reference to the incriminating circumstances appearing in the evidence of PWs. 1 to 4, they stated that it is a false case. On a consideration of the oral and documentary evidence on record, the learned Special Judge held the accused guilty of the offence under clause 25 of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order 1980 punishable under Ss. 7 and 8 of the Essential Commodities Act as the density of M.S. is beyond the permissible limits by 0.38 and convicted and sentenced them as stated supra.
3. Heard the learned counsel for the appellants and the learned Public Prosecutor.
4. The learned counsel for the appellants submits that for ascertaining the permissible limits with regard to the density, we have to refer to schedule I of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 (Central Order) and as per clause 2 of Schedule I, the density at 15 degree Celsius of motor spirit of High speed diesel in the dealer’s tank, retail outlet pump/retail point/ receptacle or any other point in retail outlet premises wherefrom sample is taken and tested shall be within +/-0.0030 of the recorded denisity of the last receipt at the retail outlet and/or the density taken in the morning following the last receipt and the dealer shall maintain the record of densities as mentioned in clause 2 in a separate Register, which shall be made available as and when required to the authorised Inspecting personnel. The learned counsel further submits that in this case the learned Judge committed error in taking the density of M.S. as noted in the invoice and comparing the same with the density as noted by the analyst-PW 4 in Ex. P 6 and found the difference as 0.38 and it is beyond the permissible limits.
5. The learned counsel for the appellants further contends that the density as found by the analyst in Ex. P 6 should have been compared with the recorded density of the last receipt of M.S. at the retail outlet of the accused and/or density taken in the morning following the last receipt by the accused. He further contends that the registers maintained by the accused containing recorded density of the last receipt at the retail outlet and also density taken in the morning following the last receipt by the accused were seized by the Inspector of Police-PW 2 and the prosecution failed to produce the same into Court for comparison and as such it cannot be said that the density as found by the analyst from the sample seized from the appellants is beyond the permissible limits. There is much force in this contention. The density has to he tested so as to find out whether HSD or MS is adulterated or not. Under Clause (a) of S. 2 of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, (Central Order) ‘adulteration’ has been defined as “the introduction of any foreign substance into motor sprit/high speed diesel illegally/unauthorisedly with the result that the product does not conform to the requirements indicated in Schedule I.” The permissible limits of density are noted in schedule I of the said Central Order. As earlier stated, the density at 15 degree Celsius of motor spirit or high speed diesel, from the sample taken from a dealer and tested shall be within +/-0.0030 of the recorded density of the last receipt at the retail outlet and/or the density taken in the morning following the, last receipt. In the instant case, as seen from the evidence of PW 4 the analyst, when he conducted the test of density of M.S., it was 0.7210 and Ex. P 6 is the report submitted by him. To find out whether this density of M.S. at 0.7210 is within the permissible limits of +/-0.0030, it should be compared with the recorded density of the last receipt by the dealer or the density taken in the morning following the last receipt. But, as seen from the evidence on record, the density as noted by PW 4 under Ex. P 6 was not compared with the density as recorded at the time of last receipt by the dealer or with the density as taken in the morning following the last receipt as noted in the registers maintained by the accused. But it has been compared with the density as noted in the invoice. Hence the procedure as contemplated is not followed. Hence the finding of the learned Judge that the density is with a difference of 0.38, which is beyond the permissible limits, cannot be accepted. The approach of the learned trial Judge is incorrect. Moreover, as seen from the impugned judgment, the learned trial Judge has not considered the provisions of the Central Order though the same has been noted in the charge-sheet filed by the prosecution. The learned Public Prosecutor also fairly conceded that the comparison made by the learned Sessions Judge to find out whether the density of the M.S. sample is beyond the permissible limits or not is incorrect and it has not been done in strict compliance of clause 2 of Schedule I of Central Order. Hence the conviction of the appellants is not maintainable.
6. For the reasons stated above, the appeal is allowed and the conviction of the appellants for the offence under Clause 25 of the A.P. Petroleum Products (Licensing and Regulation of Supplies) Order 1980 punishable under Ss. 7 and 8 of the Essential Commodities Act and sentence imposed on them are set aside. The fine amount imposed on the appellant/accused, if already paid, is ordered to be turned to them. The bail bonds of the accused are hereby cancelled.
7. Appeal allowed.