- (1.) THIS petition filed under Article 226 of the Constitution of India seeks quashing of F. I. R. No. 102 of 2003 and F. I. R. No. 2-23/03 dated 5th August, 2003, pending on the file of Nhava Shiva Police station and Uran Police Station, District Raigad. It is alleged that the petitioner has contravened sections 3, 7, 8, 9 and 10 of the Essential Commodities Act, 1955 ("the said Act") read with the Maharashtra Solvent, Raffinate Slop (Acquisition. Sale, Storage and Prevention of Use in Automobiles) Order, 2000 as amended.
(2.) BEFORE we touch the merits of the case it is necessary to have a look at the relevant provisions of law. Section 3 of the said Act enables the Central government to issue orders providing for regulating or prohibiting the production, supply and distribution of any essential commodity and trade and commerce therein. Section 7 of the said Act provides for penalties for contravention of any order made under section 3. Section 8 of the said Act states that any person who attempts to contravene or abates contravention of any order made under section 3 shall be deemed to have contravened that order. Section 9 of the said Act provides for punishment for making a false statement and section 10 thereof speaks about offences by company. In pursuance of section 3 of the said Act, the Central Government issued the Solvent Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000 ("the Central Order" for short ). Clause 3 of the Central Order provides that no peison shall either acquire, store or sell solvent included in the schedule thereto without a licence issued by the State Government or District Magistrate or any other officer authorised by the Central or State Government. Pursuant to sub-clause (1) of clause 3 of the Central Order, the Government of Maharashtra by a notification published in the Official Gazette issued the Maharashtra Solvent, raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in automobiles; Licensing (Amendment) Order, 2002 (the licensing order for short ). It is necessary to reproduce some of the clauses of the licensing order. Clause 3 so far as it is relevant reads as under : "3. Prohibition against carrying on business of acquiring, sale, storage or use of Solvent, Raffinate and Slop without licence.- (1) No person shall either acquire, store, sale and use Solvent, Raffinate and Slop except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority. " Clause 4 reads as under : "4. Application for licence.- An application for grant of a licence under this Order shall be made to the licensing authority in Form 1. Every such application shall be accompanied a fee of Rs. 1000/- (One thousand only ). Provided that : (a) Every person desiring to acquire, sale, store and use Solvent, raffinate and Slop after the commencement of this Order, shall apply for and obtain a licence under this Order to the Licensing authority; (b) any person who immediately, before the commencement of this order, doing business of acquiring, selling, storing and using solvent, Raffinate and Slop, shall apply for the issue of a licence under this Order within a period of ten days from the date of commencement of this Order. " Clause 5 provides for deposit of cash, by a person applying for licence before issuance of licence, as security for the due performance of the terms and condition of the licence. Clause 6 reads as under : "6. Issue of Licence.- (1) The Licensing Authority shall, on receipt of the application for a licence in prescribed form and on the payment of prescribed licence fee and security deposit, make such inquiry, as it may deem fit, and issue the licence within a period of 45 days from the date of application. " Clause 7 reads as under : "7. Period of Licence.- Every Licence granted under this Order shall be valid for a period of one year from the date of issue of the licence and may be renewed for a period of two years, at a time. " Clause 8 provides for removal of licence. Clause 10 reads as under : "10. Power to refuse licence.- The licensing authority may, after giving the applicant an opportunity of stating his case and for reasons to be recorded in writing to refuse to grant or to renew a licence. " Clause 11 provides for cancellation or suspension of licence, if there is any contravention of the terms and conditions of the licence. Clause 14 of the said Licensing Order requires every person engaged in the sale or trading of Solvent for any purpose whatsoever to file end use certificates from the consumer to whom the Solvent is sold. The said person is required to furnish on a quarterly basis to the Licensing Authority customer-wise sales of the solvents. Similarly, any person engaged in the actual use of the Solvent referred to in the Schedule to the Licensing Order for manufacture of any petrochemicals or any other purpose is required, to file end use certificate with the Licensing authority on a quarterly basis.
(3.) HAVING referred to the relevant provisions of licensing order it would now be necessary to narrate the facts; Reliance Petroleum Limited ("rpl" for snort) at the relevant time was engaged in the manufacture, sale and distribution of Petroleum and Petroleum Products including Light Diesel Oil ("ldo" for short) at its refinery in Jamnagar in the State of Gujarat. For the delivery and dispatch to the end users/buyers of the LDO in and around the State of maharashtra, in or around July, 2001 RPL started bringing LDO from its refinery and stored the same in the containers/tanks situate in or around the Jawaharlal nehru Port Trust at Nhava Sheva. The storage tank belonged to Indian Oil tanking Ltd. ("iotl") a Government of India undertaking. The storage of LDO by IOTL was pursuant to an agreement entered into between RPL and IOTL.;