samples covered by item No.1 & 2 were not identified as
kerosene, since no smoke test was conducted, therefore
Ext.P12 chemical examiner's report is not admissible in law
for a conviction. Normally statutory offence like this, the
requirement of smoke test is mandatory. The non-
compliance of the smoke test indicates a nullification of
the procedure. It is true that there is no ready test or
formula to determine a provision mandatory or not, but
weighing the consequence of the non-compliance, the
appellant is entitled to get the benefit of doubt.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 28TH DAY OF MAY 2015
CRL.A.No. 465 of 1997 (B)
SAITHALAVI, S/O. AHAMMED KOYA
Vs
STATE OF KERALA,
Appellant, who is the accused in S.T.No.25/199 on the
file of Special Judge for Essential Commodities Act, Thrissur
challenges the judgment of conviction and sentence under
Section 3 and 7 of the Essential Commodities Act, 1955
(hereinafter referred to as the 'E.C. Act' for short). He
was sentenced to imprisonment for six months and fine of
2,000/- , in default of payment of fine, imprisonment for six
months.
2. The facts necessary for indictment were that on
7.8.1992 at 4.15 p.m. the rationing Inspector, Kozhikode
inspected the house of the appellant and detected 1010 litres
of kerosene kept in 5 big barrels in his courtyard and one
small barrel in the bath room, in the house No.RP II/214of
Velipram Amsom Desom, Ramanattukara. Immediately he
reported the matter to his higher authorities and as per
their direction reported the matter to the Feroke Police,
where they registered a crime and after completing
investigation, laid final report in the trial Court.
3. During trial, prosecution examined PWs 1 to 8
and marked Exts.P1 to P12 as documentary evidence. The
incriminating circumstances brought out in evidence were
denied by the accused while questioning him. He did not
adduce any defence evidence. The trial Court, after
analysing the evidence, convicted the appellant. Being
aggrieved by that judgment, he filed this appeal.
4. The learned counsel appearing for the appellant
contended that in a prosecution under Kerosene Control
Order, it is mandatory to find out the flame height for
identifying the seized article as kerosene. If the flame
height of kerosene is not identified by conducting a smoke
test, the trial will be vitiated.
5. The learned Public Prosecutor contended that
the seized article was kerosene which was stated in the
chemical examination report and no question was asked in
the trial Court about the smoke test. The offence was
detected before repealing the 1st schedule to the Central
Excise and Salt Act 1944 and mineral oil seized from the
possession of the accused is kerosene and no interference
is necessary.
6. Now the first question to be considered in this
case is whether the prosecution has proved that the
seized articles are kerosene? Secondly, if so the appellant
had violated the Kerosene Control Order and he was in
possession of huge quantity of kerosene as alleged? When
an offence is created by a special Statute and the mode in
which the penalty should be imposed is provided in that
Statute, it can proceed in that manner and impose that
penalty in the mode provided therein alone and no other
mode. At the same time, when the provision of an act
imposes a particular test for finding out any offence, such
provision must be strictly construed and do not create any
implied presumption. For this, I have verified the
allegation in this case and examined what is the meaning of
the word kerosene, in the Kerosene Control Order, 1968
and Kerosene (Restriction on use and fixation of Ceiling
Price) Order 1993. The Kerosene Control Order 1968 was
issued by the Government for maintaining the kerosene and
for securing its equitable distribution and availability at
fair price. The definition of 'Kerosene' in Clause 2 (f) of
the Kerosene Control Order 1968 defined that "Kerosene"
shall have the meaning assigned to it in item No.7 of the
first Schedule to the Central Excise and Salt Act, 1944
(Central Act 1 of 1944) and shall not include Aviation
Turbine Fuel. Subsequently, the Central Excise and Salt
Act 1944 First Schedule was omitted and the Kerosene
(Restriction on use and fixation of ceiling price) Order,
1993 published in the Gazette of India, Extraordinary,
Part II, Clause 3(i) dt. 2.9.1993, in clause 2 (e) "kerosene"
defines as follows.
"(e) "Kerosene" means a middle
distillate mixture of hydrocarbons
meeting BIS specification No.: IS-1459
of 1974 with important characteristics
of flash point at a minimum of 35o C and
smoke point at a minimum of 18 mm."
A plain reading of the definition extracted above
prescribes that if the liquid is kerosene it must have
important characteristic of minimum flash point and smoke
point. As per item 2710.19 of the schedule to the Central
Excise Tariff Act, a liquid to be kerosene, it must have a
smoke point of eighteen millimeters or more. According
to the definition, it means a middle distillate mixture of
hydrocarbons meeting BIS specification No: IS-1459 of
1974 with important characteristics of flash point at a
minimum of 35o C and smoke point at a minimum of 18 mm.
However, if the flame height is less than the standard
fixed, the liquid would not be regarded as kerosene.
7. It is true that the detection in this case was
made before repealing the 1st Schedule to the Central
Excise and Salt Act 1944. Before repealing, a similar
question was considered by this Court in Kunhimoideenkutty
v. State of kerala [1988 (2) KLT 128]. It was therein
explained the importance of scientific test to ascertain
the flame height in a prosecution under the Kerosene
Control Order 1968 to identify the liquid as kerosene. His
Lordship Justice K.T. Thomas explained the law as follows:
"Clause 2(a) of the order defines kerosene
thus: "Kerosene shall have the meaning
assigned to it in item No.7 of the first
schedule to the Central Excise and Salt Act,
1944 (Central Act 1 of 1944) and shall not
include Aviation Turbine Fuel: "Item No.7 in
the First Schedule to be Central Excise and
Salt Act, 1944 defines kerosene as "any
mineral oil (excluding mineral colza oil and
turpentine substitute) which has a flame
height of eighteen millimetres or more and is
ordinarily used as an illuminant in oil burning
lamps". In explanation II (of the said item) it
is mentioned that "Flame height" shall be
determined in the appratus known as the
smoke point lamp in the manner prescribed in
this behalf by the Central Government by
notification in the Official Gazettee.".
Explanation 1 of the said item defines mineral
oil as an oil consisting of a single liquid hidro
carbon or a liquid mixture of hidro carbons
derived from petroleum coal-shale, peat or any
other bituminous substance and includes any
similar oil produced by synthesis or otherwise."
8. The relevancy of smoke test for identifying
kerosene had been explained by his Lordship in
Kunhimoideenkutty v. State of Kerala [1988 (2) KLT 128],
which was doubted by a single judge of this court and that
was answered by the Division Bench, in Manoharan Pillai v.
State and another [ILR 2005(2) Kerala 269]. It was
observed:
"Repeal of First Schedule of the Central Excise
and Salt Act, 1944 subsequently will not make
any difference as when clause 2(f) was drafted,
definition of 'kerosene' in item 7 of First
Schedule as existed on that date was
incorporated. We also note that even when First
Schedule was repealed and in its place the
schedule to the Central Excise Tariff Act, 1985
was substituted for the purpose of reference in
any Central Act. No substantive changes were
made to the definition of 'kerosene' in the
schedule to the later enactment. As per item
2710.19 of the schedule to the Central Excise
Tariff Act, to be kerosene, it must have a "smoke
point of eighteen millimeters or more". But,
minimum height was not tested for finding out
the flame/smoke point in this case, in Indian
standards, specification of 'kerosene' also
requiring minimum smoke point of 18 millimetres
is prescribed. It is well settled law that when a
word is defined in the statute, Court is bound by
the definition. Only if the definition is not clear
or capable of two interpretations, Courts need to
find out whether a restricted or extensive
meaning has to be adopted depending upon the
context and object of the legislature."
A perusal of the above decision shows that when a word is
defined in the Statute, naturally the Court is bound by the
definition. On the contrary, if the definition is not clear
or two interpretations are possible, Court need to find out
whether a restricted or extensive meaning has to be
adopted depending upon the context and object of the
enactment. When Statutes provides for minimum smoke
point of 18 millimeter, prosecution has to conduct smoke
test as per Indian standard provided for specification of
kerosene.
9. The Chemical Examiner's report shows that he
had conducted certain test in the laboratory and issued a
certificate. Chemical Examiner's report received on
25.4.1994, after a period of two years, in which it is seen
that he received the sealed bottles labelled "Cr.65/92
Feroke P.S." marked as item Nos.1 and 2 each containing
750 ml of a clear colourless liquid with the smell of
kerosence oil. The seals on the bottles were intact and
found tallied with the sample seal provided. In the
analytical data of the report, parameters of the two items
were the same. Colour and appearance of each item were
'colourless clear'. The odour was smell of kerosene.
Specific gravity was 0.80 each. Flash point was 36oC each.
Percentage collected below 200oC is 43ml each. Final
boiling point was 280oC each. Thin layer chromatography
test for kerosence oil (1 & 2) is positive. The samples
covered by item Nos.1 & 2 were identified to be genuine
kerosene oil. From the above chemical analysis report, it is
clear that the smoke test was not conducted in the
chemical examination. Therefore, the prosecution has to
prove that the seized article has characteristic of flash
point at a minimum of 35oC and smoke point at a minimum
of 18 mm in this case. In the absence of any smoke test
as provided 'IS' standard, it is difficult to accept Ext.P2
the chemical examiner's report for a conviction. It is
clear that chemical examiner has not conducted any flame
height test and Ext.P2 do not create any implied
presumption about smoke test.
10. Appellant disputed the possession of the house
from where the seizure was made. The expression
possessed is used in certain statutory offences, in which
conscious possession is necessary for proving the offence.
Thus possession for the purpose of the Act means physical
possession with animus custody or domain over the
property. In the instant case, PW5, the Executive
Officer, Ramanattukara Panchayat produced Ext.P5
extract of the building tax register which shows appellant
is in possession of the building. In Ext.P6, the Village
Officer, Ramanattukara reported that appellant is in
possession of the property comprised in Sy. No.500/2 of
Ramanattukara Village from where the article seized.
Analysing the evidence of PW1, PW5 and PW6 it is found
that the City Rationing Inspector on 7.8.92 searched
appellant's house and seized certain article.
11. It is the fundamental principle of criminal
jurisprudence that an accused is presumed to be innocent
unless the prosecution proves the guilt of the accused
beyond reasonable doubt. Generally speaking, they can rely
both oral and documentary evidences to prove that the
accused had committed the offence with requisite mens
rea. The domain of criminal cases can be ascertained by
examining, what act or omissions are declared by the State
to be crimes. Ordinarily every crime created by a Statute,
however comprehensive it may be the element of mens rea
is required on the part of the actor. But there may be
cases in which while providing penalty, legislature
completely rules out the principle of mens rea, but certain
statute which deals with public welfare insists principle on
strict liability, eg. Statute regulating sale of food and
drink. Therefore, penal statute must be construed
strictly. An accused cannot be convicted on the basis of
conjectures or suspicions.
12. Before concluding I may observe that the
samples covered by item No.1 & 2 were not identified as
kerosene, since no smoke test was conducted, therefore
Ext.P12 chemical examiner's report is not admissible in law
for a conviction. Normally statutory offence like this, the
requirement of smoke test is mandatory. The non-
compliance of the smoke test indicates a nullification of
the procedure. It is true that there is no ready test or
formula to determine a provision mandatory or not, but
weighing the consequence of the non-compliance, the
appellant is entitled to get the benefit of doubt.
Accordingly, the conviction and sentence under clause
16 of the Kerala Kerosene Control Order, 1968 r/w.
Sections 3 to 7 of the E.C. Act are hereby set aside. The
appellant is acquitted and set at liberty.
Crl.Appeal is allowed.
P.D. RAJAN, JUDGE.
Clause 2(f) of Kerala Kerosene Control Order, 1968 defines as
follows:
"2. Definitions.- In this order, unless the context otherwise
requires,-
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx
(e) xxx xxx
(f)"Kerosene" shall have the meaning assigned to it in item No.7 of
the first Schedule to the Central Excise and Salt Act, 1944 (Central
Act of 1944) and shall not include Aviation Turbine Fuel."
Clause 2(e) of the Kerosene (Restriction on use and Fixation of
Ceiling Price) Order, 1993 defines as follows:
"2. Definitions.- In this order, unless the context otherwise
requires.
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx
(e) "kerosene" means a middle distillate mixture of hydrocarbons
meeting BIS specification No.: IS-1459 of 1974 with important
characteristics of flash point at a minimum of 35o C and smoke point
at a minimum of 18 mm."
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