Calcutta High Court (Appellete Side)
Amitava Roy Chowdhury vs The State Of West Bengal on 20 December, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 59 of 2020
Amitava Roy Chowdhury
Vs
The State of West Bengal
For the Petitioner : Mr. Gopal Chandra Ghosh.
For the State : Mr. Arijit Ganguly,
Mr. S. K. Dan.
Heard on : 29.11.2022
Judgment on : 20.12.2022
2
Shampa Dutt (Paul), J.:
The present revision is praying for quashing of G.R. No.
2099/2018 arising out of Barasat P.S. Case No. 436/18 dated
19.06.2018
U/s-7(1)(a)(ii) Essential Commodities Act, 1955 pending
before the Learned First Judicial Magistrate at Barasat, on basis of
written complaint made by one Ankit Mukherjee, son of Madan
Mukherjee. The said Barasat P.S. Case No. 436/18 dated 19.06.2018
was started against the petitioner on 19.06.2018. The complainant
purchased petrol for his motor cycle from Rathtala Service Station,
Petrol Pump, on Jessore Road under Police Station Barasat. After such
purchase of the petrol he found that his motor cycle was disturbing and
stopped functioning. He then went to the said petrol pump and found
that many people had gathered there with their motor cycle complaining
that the petrol pump authority might have supplied petrol mixed with
other chemicals.
The petitioner a relative of one of the partners of the petrol
pump who was present at the relevant time was arrested by the police
and taken into custody, though the petitioner is neither owner of the
petrol pump nor an employee thereof nor connected with the said
business in any way.
On investigation it revealed that while supplying product
from tanker truck No. WB73D3571 on 19.06.2018 it unloaded 4 KL
diesel in petrol tank of the concerned petrol pump by mistake
therefore the allegation against the petitioner or anybody else in this
regard is baseless. It further revealed from the said report that the
petitioner is only a relative of one of the partners of the petrol pump and
was present at the relevant time in the petrol pump having no nexus
with retail selling and/or business of the said petrol pump.
Under the aforesaid circumstances, the charge sheet filed
against the petitioner is on the basis of an unfounded complaint and
the petitioner is being harassed unnecessarily for no fault on his part.
Therefore it is clear that the petitioner has/had committed no offence as
alleged. Thus the prayer for quashing.
Mr. Gopal Chandra Ghosh, Learned Counsel for the
Petitioner has submitted that the said F.I. R. and charge sheet are on
the very face mere abuse of the process of the law so far the petitioner is
concerned and is liable to be quashed. The petitioner being not
connected with the said petrol pump either being the owner or employee
cannot be harassed unnecessarily. The petitioner has been charge
sheeted without any prima facie proof of any offence against him. From
facts and circumstances of the case the charge framed against the
alleged accused/petitioner under Section 7(1)(A)(ii0 Essential
Commodities Act, 1955 has no basis. Accordingly, the same should be
quashed. The impugned proceeding is otherwise bad in law and is liable
to quashed /set aside.
Mr. Arijit Ganguly, Learned Counsel for the State has
produced an attested copy of the case dairy.
The Seizure list therein shows that the disputed Petroleum
Products was seized.
The Result of Chemical examination shows that the examiner
has given the opinion as "on examination it is opined that the oily
liquids contained in the exhibits marked as "A" and "B1" could be
detected identical mixed petroleum product instead of petrol".
The said chemical examination report clearly notes "identical
mixed petroleum product instead of petrol."
One of the grounds of defence of the petitioner is that the oil
tanker containing diesel poured the same in a petrol tank by mistake,
which inevitably and unintentionally without knowledge was supplied to
the petrol vehicle's causing disturbance in their functioning.
Comprehensive coverage in an insurance policy may cover
issues from contaminated fuel, (Misfuelling) making it a case of an
accident (mistake).
The petitioner /accused has been shown as "Authority of
Rathtala Service Station" which he is not as partnership agreement in
respect of "Rathtala Service Station" in respect of share holdings in the
firm is Smt. Aloka Paul - 51%, Mr. Biswajit Roy - 49%.
The FIR was initiated for offence under Section 7(1)(a)(ii) of the
Essential Commodities Act. Charge sheet has also been submitted
under the said Section.
Irrespective of the possibilities of "misfuelling" both the incidents
(petrol in diesel vehicle and diesel in petrol vehicle) can damage the
engine.
"Misfuelling" is in fact an honest and common mistake (absence
of 'mens rea') because of the fact the it is Common Knowledge, that
misfuelling causes damage and hampers the functioning of a vehicle
and such an act can never go undetected.
The Supreme Court in State of Madhya Pradesh vs. Narayan
Singh & Ors. (1989 AIR 1789) on 25 July, 1989 held:-
"XX XX XX Taking up the first question for
consideration, we may at once state that the Trial
Magistrate and the High Court have failed to
comprehend and construe Section 7(1) of the Act in
its full perspective. The words used in Sec. 7(1) are
"if any person contravenes whether knowingly,
intentionally or otherwise any Order made under
Sec. 3". The Section is comprehensively worded so
that it takes within its fold not only contraventions
done knowingly or intentionally but even otherwise
i.e. done unintentionally. The element of mens tea in
export of fertiliser bags without a valid permit is
therefore not a necessary ingredient for convicting a
person for contravention of an order made under
Sec. 3 if the factum of export or attempt to export is
established by the evidence on record.
The sweep of Sec. 7(1) in the light of the changes
effected by the Legislature has been considered by
one of us (Ahmadi, J.) in Swastik Oil Industries v.
State, (Special Criminal Application) 1978 (19)
Gujarat Law Reporter 117. In that case, M/s.
Swastik Oil Industries, a licencee under the Gujarat
Groundnut Dealers Licensing Order, 1966 was
found to be in possession of 397 tins of groundnut
oil in violation of the conditions of the licence and the
provisions of the Licensing Order. Consequently, the
Collector ordered confis- cation of 100 tins of
groundnut oil from out of the 397 tins under Sec. 6(1)
of the Essential Commodities Act. On the firm
preferring on appeal, the Appellate Authority viz
Additional Sessions Judge, Kaira at Nadiad held
"that cl. (11) of the Licensing Order had been
contravened but such contravention was not
deliberate as it arose out of a mere bona fide
misconception regarding the true content of cl. (11) of
the Licensing Order." The Additional Sessions Judge
therefore held that the contravention was merely a
technical one and not a wilful or deliberate one and
hence the confis- cation of 100 tins of groundnut oil
was too harsh a punish- ment and that confiscation
of only 25 tins would meet the ends of justice.
Against this order, the firm preferred a petition
under Article 227 of the Constitution to the High
Court. Dealing with the matter, the High Court
referred to Sec. 7 of the Act as it originally stood and
the interpretation of the Section in Nathu Lal v. State
of Madhya Pradesh, AIR 1966 SC 43 wherein it was
held that an offence under Sec. 7 of the Act would be
committed only if a person intentionally contravenes
any order made under Sec. 3 of the Act as mens rea
was an essen- tial ingredient of the criminal offence
referred to in Sec.
7. The High Court then referred to the change
brought about by the Legislature to Sec. 7 after the
decision in Nathu Lal's case (supra) was rendered
by promulgating Ordinance 6 of 1967 which was
later replaced by Act 36 of 1967 and the change
effected was that with effect from the date of the
Ordinance i.e. September 16, 1967 the words
"whether know- ingly, intentionally or otherwise"
were added between the word "contravenes" and
the words and figure "any order made under Sec. 3".
Interpreting the amendment made to the Sec. the
High Court held as follows:
"The plain reading of the Section after its
amendment made it clear that by the amendment,
the Legislature intended to impose strict liability for
contravention of any order made under Sec. 3 of the
Act. In other words, by the use of the express words
the element of mens tea as an essential condi- tion
of the offence was excluded so that every
contravention whether intentional or otherwise was
made an offence under Sec. 7 of the Act. Thus by
introducting these words in Sec. 7 by the aforesaid
statutory amendment, the Legislature made its
intention explicit and nullified the effect of the
Supreme Court dicta in Nathu Lal's case."
The High Court thereafter proceeded to consider the
further amendment effected to Sec. 7 of the Act
pursuant to the recommendation of the Law
Commission in its 47th Report. Though for the
purpose of the two appeals on hand, it would be
enough if we examine the correctness of the view
taken by the High Court in the light of the words
contained in Sec. 7 of the Act as they stood at the
relevant time viz a contravention made of an order
made under Sec. 3 "whether knowingly,
intentionally or otherwise", it would not be out of
place if we refer to the further change noticed by the
High Court, which had been made to Sec. 7 by
Parliament by an Ordinance which was later
replaced by Amending Act 30 of 1974. The High
Court has dealt with the further amendment made to
Sec. 7(1) in the Swastik Oil Industries as follows and
it is enough if we extract the same.
"But again in the year 1974, pursuant to the
recommendations of the Law Commission in their
47th Report and the experi- ence gained in the
working of the Act, by an Ordinance, Sec. 7 of the
Act was amended whereby the words "whether
knowing- ly, intentionally or otherwise" which were
introduced by Amending Act 36 of the 1967 were
deleted and the material part of sec. 7(1) restored to
its original frame and a new provision in Sec. 10 of
the Act was added which reads as under:
"10. C(I) In any prosecution for any offence under
this Act which requires a culpable mental state on
the part of the accused the Court shall presume the
existence of such mental state but it shall be a
defence for the accused to prove the fact that he had
no such mental state with respect to the act charged
as an offence in that prosecution. Explanation: In
this Section, "culpable mental state" in- cludes
intention, motive, knowledge of a fact and the belief
in, or reason to believe, a fact.
(2) For the purposes of this Section, a fact is said to
be proved only when the court believes it to exist
beyond reasonable doubt and not merely when its
existence is estab- lished by a preponderance of
probability." This Ordinance was replaced
by Amending Act 30 of 1974. The effect of this
subsequent change in the statute is that a
presumption of guilty mind on the part of the
accused in respect of offences under the Act,
including Sec. 7, would arise and it would be open to
the accused to rebut the same. As the law now
stands in any prosecution under the Act which
requires a culpable mental state on the part of the
accused, the 'same must be presumed unless the
accused proves that he had no such mental state
with respect to the offence for which he is tried. Now
according to the explanation to Sec. 10(c) culpable
mental state includes intention, motive, knowledge
of a fact and belief in or reason to believe a fact. The
degree of proof expected to rebut the presumption
has been indicated by sub-sec. (2) thereof which
says that a fact will be said to be proved only if it
exists beyond reasonable doubt and it will not be
sufficient to prove its existence by preponderance of
probability. Thus the burden of proof lies heavily on
the accused to rebut the statutory presumption and
the degree of proof expected that required for the
proof of a fact by the prosecution. There can
therefore be no doubt that the aforesaid legislative
changes have reversed the thrust of the decision of
the Supreme Court in Nathu Lal's case (supra) and
the same no longer holds the field."
Reverting back to Sec. 7 of the Act as amended by
Act 36 of 1967, it is manifestly seen that the crucial
words "whether knowingly, intentionally or
otherwise" were insert- ed in Sec. 7 in order to
prevent persons committing offences under the Act
escaping punishment on the plea that the offences
were not committed deliberately. The amendment
was brought about in 1967 in order to achieve the
avowed purpose and object of the legislation. To the
same end, a further amendment came to be made in
1974, with which we are not now directly concerned
but reference to which we have made in order to
show the scheme of the Act and the amplitude of
Sec. 7 at different stages."
In the present case the chemical examination report clearly
supports the case of the accused/petitioner. The report which clearly
states "IDENTICAL MIXED PETROLEUM" PRODUCT instead of petrol
makes out a clear case of "Misfuelling" which is covered by a specific
insurance thus making it a case of an accident (mistake).
From the said facts and circumstances it is clear that the
petitioner/accused had no intention, motive, knowledge of the fact
and the belief or reason to believe that there was an incident of
"Misfuelling" and it is clear beyond reasonable doubt that the petitioner
herein did not have the 'capable mental state' to commit the offence as
alleged nor is there any evidence to constitute an offence under section
7(I)(a)(ii) of the Essential Commodities Acts and as such the possibility
of conviction is remote in such a case. And continuation of the Criminal
case would put the accused to great oppression and prejudice and
extreme injuries could be caused to him by not quashing the criminal
case despite there being no (mens rea) culpable mental state nor any
evidence to make out any cognizable offence against any of the three
accused persons in Barasat P.S. case No. 436/18 dated 19.06.2018,
U/s-7(1)(A)(ii) Essential Commodities Act, 1955 Pending before the Ld.
First Judicial Magistrate, at Barasat is liable to be quashed in respect of
all the accused persons.
As such this court is of the view that it would be unfair and
contrary to the interest of justice to continue with the criminal
proceedings which would tantamount to abuse of process of law and to
secure the ends of justice it would be prudent to quash the proceedings
in the case as prayed for. The present status of the case before the Trial
Court is that chargesheet has been filed and cognizance has been
taken, and it is presumed that trial might have not commenced as yet.
Accordingly, the revisional application being CRR 59 of
2020 is allowed.
Proceedings being G.R. Case No. 2099 of 2018 arising out of
Barasat P.S. case No. 436/18 dated 19.06.2018 U/s-7(1)(A)(ii) Essential
Commodities Act, 1955 Pending before the Ld. First Judicial Magistrate,
at Barasat, is hereby quashed in respect of all three accused persons
charge sheeted.
There will be no order as to costs.
All connected Application stand disposed of.
Interim order if any stands vacated.
A copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
