KUNHIMOIDEENKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appeals arise from two criminal cases tried by the Special Court (for trial of offences under the Essential Commodities Act, 1955), Trichur for the offence of contravention of Clause.16 of the Kerala Kerosene Control Order, 1968 (for short 'the order'). The aforesaid clause contains a prohibition that no person (other than an oil company or a dealer licensed under the order) shall have in his possession kerosene exceeding one tin (18.5 litres). Contravention of the said clause is an offence punishable under S.7(1) of the Essential Commodities Act (for short 'the Act'). The Trial Court found the accused in each case guilty of the offence and convicted him and sentenced him to a term of imprisonment and also to pay fine. These are separate appeals filed by each of them. The common point raised by the learned counsel, if accepted, will affect the results of both the appeals. Hence it is convenient to dispose of these two appeals by a common judgment.

(2.) The Taluk Supply Officer (T.S.O.), Hosdurg detected two hundred litres of kerosene on 10-4-1984 in a shop room which is said to be in the possession of the accused in the first case. The kerosene was found kept in a barrel. The aforesaid article was seized by the T.S.O. after drawing up a mahazar. He filed a report in the local police station on the strength of which the F.I.R. was prepared. After investigation the case was charge sheeted by the police. In the other case the District Supply Officer (D.S.O.) seized eleven barrels of kerosene on 19-10-1985, stocked in the compound of the accused. Even at the time of seizure the accused informed the D.S.O. in writing (Ext. P4) that the kerosene so stored did not belong to him but belonged to another person whose name is also mentioned. The local police registered an F.I.R. when the D.S.O. filed a report and after investigation the case was charge sheeted.

(3.) The common feature in both the cases is that the officer who effected seizure had not taken a sample from any of the barrels, nor has the contents of the barrels been subjected to chemical analysis or any other scientific test. In both cases, prosecution relies on the testimony of the officer concerned that when the liquid was smelt, he identified the same to be kerosene. The Trial Court accepted the aforesaid evidence and reached the conclusion that the accused concerned was in possession of kerosene far in excess of the permitted quantity. The conviction in both cases is based on the said conclusion.