2015 (5) TMI 1250 - HC - Central Excise

Appellant acquitted in kerosene possession case; lack of smoke test raises doubt on liquid identification.

Saithalavi, S/o. Ahammed Koya Versus State of Kerala, Represented By Public Prosecutor, High Court of Kerala

The court acquitted the appellant of possessing kerosene due to the absence of a smoke test, which raised doubts about the identification of the seized ... Legality of judgment of conviction and sentence under Section 3 and 7 of the Essential Commodities Act, 1955 - Seized article are Kerosene or not - possession of huge quantity of kerosene or not - violation of Kerosene Control Order or not - denial of incriminating circumstances by accused. Revenue 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. HELD THAT:- 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. 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 - penal statute must be construed strictly. An accused cannot be convicted on the basis of conjectures or suspicions. The samples 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 noncompliance 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. 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 - appeal allowed. Issues:1. Identification of seized articles as kerosene and violation of Kerosene Control Order.2. Requirement of conducting a smoke test for identifying kerosene.3. Possession of the accused and the burden of proof.4. Presumption of innocence and burden of proof in criminal cases.5. Admissibility of chemical examiner's report without a smoke test.Issue 1: Identification of Seized Articles as Kerosene and Violation of Kerosene Control Order:The appellant challenged the conviction under the Essential Commodities Act for possessing 1010 litres of kerosene. The prosecution relied on evidence from witnesses and documentary evidence to establish the case. The definition of kerosene under the Kerosene Control Order was crucial in determining the nature of the seized liquid. The court analyzed the definition of kerosene under various orders and Acts to ascertain the essential characteristics required for a liquid to be classified as kerosene. The court emphasized the importance of strict interpretation of statutory provisions in cases involving special statutes like the Kerosene Control Order.Issue 2: Requirement of Conducting a Smoke Test for Identifying Kerosene:The appellant argued that a smoke test was mandatory to identify kerosene under the Kerosene Control Order. The court examined previous judgments emphasizing the significance of conducting a smoke test to determine the flame height and classify a liquid as kerosene. The court highlighted that the prosecution must adhere to Indian standards specifying the smoke point for kerosene. The absence of a smoke test in the chemical examiner's report raised doubts about the identification of the seized liquid as kerosene, leading to concerns about the admissibility of the evidence.Issue 3: Possession of the Accused and the Burden of Proof:The appellant disputed the possession of the house where the seizure took place. The court discussed the concept of possession in statutory offences and the requirement of conscious possession to establish an offence. Evidence from witnesses and official records confirmed the appellant's possession of the property from where the kerosene was seized. The court emphasized the importance of physical possession with animus custody or domain over the property in cases involving possession-related offences.Issue 4: Presumption of Innocence and Burden of Proof in Criminal Cases:The court reiterated the fundamental principle of criminal jurisprudence that an accused is presumed innocent until proven guilty beyond a reasonable doubt by the prosecution. The court emphasized the need for the prosecution to prove the guilt of the accused with requisite mens rea using both oral and documentary evidence. The court discussed the elements of mens rea in criminal cases and highlighted the strict construction of penal statutes to ensure fair application of the law.Issue 5: Admissibility of Chemical Examiner's Report Without a Smoke Test:The court scrutinized the chemical examiner's report, which lacked a smoke test to confirm the characteristics of the seized liquid as kerosene. The absence of a smoke test raised concerns about the admissibility of the report for conviction. The court emphasized the mandatory nature of conducting a smoke test in cases involving statutory offences like possession of kerosene. The failure to conduct a smoke test cast doubt on the identification of the seized liquid as kerosene, leading to the acquittal of the appellant based on the benefit of the doubt principle.In conclusion, the court set aside the conviction and sentence of the appellant under the Kerala Kerosene Control Order and Essential Commodities Act, acquitting the appellant based on the lack of a smoke test and the consequent doubts regarding the identification of the seized liquid as kerosene.