Pankaj Kumar And Another vs State Of J&K
2021 Latest Caselaw 1596 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                 Reserved on : 30.11.2021
                                                 Pronounced on: 03.12.2021

                                                 CRMC No. 139/2008
                                                 IA No. 152/2008

Pankaj Kumar and another                          .....Appellant(s)/Petitioner(s)


                     Through: Mr. K. S. Johal, Sr. Advocate with
                              Mr. Supreet Singh Johal, Advocate
                Vs
State of J&K                                                 ..... Respondent(s)


                     Through: Mr. Suneel Malhotra, GA

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                               JUDGEMENT

1. The petitioners have impugned the order dated 08.11.2008 passed by

the Court of Additional Sessions Judge, Doda (hereinafter to be referred

as the trial Court) by virtue of which charge for commission of offences

under Sections 3/7 Essential Commodities Act has been framed against

the petitioners in a challan arising out of the FIR bearing No. 97/2007

registered with Police Station, Doda.

2. It is stated that the petitioner No. 1 is running a petrol pump at Pul Doda

under the name and style of M/s Hans Raj Sharma and Co and the

petitioner No. 2 is an employee of petitioner No. 1.FIR No. 97/2007

was registered on the basis of false and frivolous allegations and the

case was investigated by the Police without jurisdiction and even if the

case of the prosecution is taken to be correct, no case is made out for

the commission of alleged offences against the petitioners .

2CRMC No. 139/2008

3. The petitioners have impugned theorder dated 08.11.2008 on the

followingtwo grounds:

(i) That the guidelines have been framed for the retail outlet

dealership of Public Sector Marketing Oil Companies and

these guidelines clearly indicate the procedure for collecting

and testing of the samples and in the said challan, Police had

not adhered to the guidelines and straightway picked up the

samples from the retail outlet of the petitioner No. 1.

(ii) That the FIR was registered on 06.08.2007 whereas the

samples were collected on 30.12.2006 that is nearlyafter the

seven months. The delay in carrying out the laboratory test of

the samples taken on 30.12.2006 being conducted on

27.07.2007 is capable of causing variations and on the basis

of this ground alone, the order impugned is not sustainable.

3. Mr. K. S. Johal, learned Senior Advocate appearing on behalf of the

petitioner has vehemently argued that the respondents have not

followed the guidelines issued by the Public Sector Oil Marketing

Companies, as such, the order impugned is not sustainable in the eyes

of law.

4. Mr. Suneel Malhotra, learned counsel appearing on behalf of

respondents argued that the said guidelines are the in-house mechanism

of the Oil Marketing Companies and as such, are not binding upon the

Police authorities.

5. Heard and perused the record.

3CRMC No. 139/2008

6. From the record, it transpires that on 06.08.2007, FIR No. 97/2007 was

registered for commission of offences under Sections 3/7 Essential

Commodities Act pursuant to the communication issued by the Office

of the Dy. SP of PoliceHeadquarters, Doda in which it was stated that

on 30.12.2006, Incharge Police Post, Pul Doda along with Naib

Tehsildar Khalani conducted a surprise visit to the petrol pump at Pul

Doda on the complaint received regarding mixing of kerosene oil in the

diesel and petrol. Samples of both diesel and petrol were taken for

chemical analysis from the said Petrol Pump. The samples were got

resealed on spot through Magistrate and were sent to Forensic Science

Laboratory(FSL), Jammu for chemical analysis. The FSL report was

received on 04.08.2007 in which it was mentioned that the exhibit No.

P-26/07 was identified as admixture of Diesel and Kerosene Oil

whereas exhibit No. P-27/07 was identified as admixture of Petrol and

Kerosene Oil. On the basis of this communication, FIR was registered

and thereafter, investigation was conducted and after the conclusion of

the investigation, charge sheet for commission of offences under

Sections 3/7 Essential Commodities Act was filed against the

petitioners.

7. The first contention raised by the petitioners is that the learned trial

Court has not considered that the appropriate procedure as per the

guidelines for collection of samples and testing has not been followed.

Mr. K. S. Johal places reliance upon the Judgement of Apex Court in 4CRMC No. 139/2008

case titled HarbanslalSahnia and another v. Indian Oil Corporation

and other AIR (SC) [2003] 2 SCC 107.

8. The perusal of the order impugned reveals that the learned trial Court

has observed that irregularity or illegality in the investigation does not

affect the Police case for the trial if the same is otherwise being

conducted by the competent court unless serious prejudice is shown to

be caused to the accused or miscarriage of justice is caused. The

preamble of the guidelines reveals that the basic objective of the

sampling procedure was to ensure that the MS and HSD sold by the

retail outlets is the same product which has been supplied to them by

the respective Oil Companies and further to prevent any malpractice

and adulteration.

9. This is not the case of the petitioners that the samples were lifted by the

officials of Oil Marketting Company and FIR has been lodged at their

instance. Rather the FIR has been lodged after the samples lifted by the

Police and duly resealed by the Magistrate, were found to be

adulterated. This Court finds substance in the submission made by Mr.

Suneel Malhotra, learned GA that the guidelines are the in-house

mechanism devised by the Oil Companies to ensure that the product

sold by them is only sold by the retail outlet and also to prevent any

malpractice and adulteration. Further, the guidelines are mandatory for

the Police or not, is not forthcoming from the guidelines. So this

contention that proper procedure has not been followed by the Police

authorities, cannot be considered at this stage and this Court does not 5CRMC No. 139/2008

find any reason what so severe to differ with the findings recorded by

the learned trial Court while rejecting this contention.

10. The second contention raised by the petitioners is that, the FIR has been

registered after the delay of seven months, also cannot be considered at

this stage, particularly in view of the fact that the FSL report is dated

27.07.2007 in which it has been opined that the seized samples were

admixtures of petrol and kerosene and diesel and kerosene as the case

may be and FIR was registered on 06.08.2007. The petitioners can raise

the dispute about the validity of the FSL report before trial court and it

is for the trial court to determine the contentions raised by the

petitioners. The judgment cited by Mr. K. S. Johal, learned senior

counsel is not applicable in the facts and circumstances of the present

case.

11. In view of above facts and circumstances of the case, this Court does

not find any reason whatsoever to show indulgence and as such, the

present petition is dismissed.

(RAJNESH OSWAL) JUDGE

Jammu 03.12.2021.

Sahil Padha Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.