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Salu vs State Of Kerala on 6 November, 2007

Kerala High Court
Salu vs State Of Kerala on 6 November, 2007
       

  

  

 
 
  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.

                 ````````````````````````````````````````````````````
                      Crl. R.P. No. 2772 OF 2007 B
                 ````````````````````````````````````````````````````
                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

Crl.R.P.No.2772/07
: 2 :

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

Crl.R.P.No.2772/07
: 3 :

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

Crl.R.P.No.2772/07
: 4 :

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

Crl.R.P.No.2772/07
: 5 :

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

Crl.R.P.No.2772/07
: 6 :

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

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