S.K.Phaujdar, J.C.Misra - (1.) -All these matters were heard together as a common question of law based on similar situation and facts involved in all these matters and, therefore, all these matters are being disposed of through this single order.
(2.) THE petitioner in the first-mentioned case is sought to be prosecuted in Case Crime No. 40 of 1998, while the other cases relate to Case Crime Nos. 33 of 1998, 96 of 1998 and 77 of 1998, respectively, all under Section 3/7 of the Essential Commodities Act for having violated Motor Spirits and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, read with the U. P. Kerosene Control Order, 1962. THE common feature in all these cases is that the respective dealers in high speed diesel had stored for sale diesel oil admixtured with kerosene oil and that the samples taken from the respective tanks did not conform to the standard according to Indian Standard Institute. THE F.I.Rs. were lodged after analysis of the samples in Forensic Sciences Laboratory, Agra, and after that aforesaid irregularities were found. It was contended on behalf of the petitioners in these cases that the chemical analysis reports did not indicate if the necessary tests were conducted for determination of existence/percentage of kerosene oil in high speed diesel oil. It was further contended that adulteration under the concerned Order had a specific legal meaning and it must not be confused with the meaning of the term as understood in common parlance. It was further contended that mere mixing of any material with diesel would not amount to adulteration unless the mixture failed to conform to the standard required under the said Order. The learned counsel referred to the chemical analysis report to say that at a temperature lower than the highest fixed by the law more than 90 per cent of diesel was recovered on distillation. Learned A.G.A. placed before us a decision of a Division Bench of this High Court in two Misc. Writ Petitions heard together Krishna Kumar and another v. S. S. P. and others and M/s. Bhagwandin Gaya Prasad v. State of U. P. and others, 1998 (1) EFR 51. Here also a question similar to the one now posed before us had been agitated before the Division Bench and it was observed in para 11 of the judgment : "The introduction of any foreign substance in petrol or diesel illegally or unauthorisedly simpliciter would amount to adulteration even though the product may conform to density standard as mentioned in Schedule I of the Control Order. If the product does not conform to the density requirement indicated in Schedule I it will also amount to adulteration."
(3.) THE learned counsel submitted that the chemical analysis reports do not indicate how and by what test existence of kerosene was detected in the sample of high speed diesel oil. It was submitted that the same could only be determined by the furfural test and there is nothing on record to indicate that this test was performed. The matter is at the investigation stage. The chemical analyser has reported existence of kerosene oil in the samples taken from the respective dealers and whether it was adulteration in terms of the definition of the term in the Order, would be seen in the trial. The bare facts indicate that the odour of the sample was that of kerosene oil also and fluorescene was bluish green. It is true that the flashpoint and distillation range appear to be within the standard but we may not discard by weighing evidence at this stage the opinion of the scientific officer regarding admixture of diesel with kerosene. We further feel that what was observed by the Division Bench in the case of Krishna Kumar is the right approach as diesel oil is stored for the purpose of sale and mixing of kerosene oil with diesel, even though it may not amount to adulteration in terms of the definition of the term in the Order, amounts to cheating and is also violative of the Kerosene (Restriction on Use and Fixation of Selling Price) Control Order, 1993. We may not, therefore, quash the concerned F.I.Rs. in the respective petitions.;