TaxTMI 
TaxTMI 
2023 (6) TMI 1235
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....PPLICATION NO. 1192 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1176 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1208 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1190 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1211 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1214 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1212 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1213 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1210 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1180 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1183 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1178 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1209 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1185 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1219 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1216 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1189 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1217 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1340 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1346 of 2018 R/CRIMINAL REVISION APPLICATION NO. 1339 of 2018 R/CRIMINAL REVISION APPLICATION NO. 803 of 2021 R/CRIMINAL REVISION APPLICATION NO. 898 of 2021 R/CRIMINAL REVISION APPLICATION NO. 807 of 2021 R/CRIMINAL REVISION APPLICATION NO. 802 of 2021 ....
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....udgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10-11, 3-9 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2 Sairica S Raju(8761) For The Respondent(S) No. 2 Appearance In Cr.R.A. No.1188 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10-12, 17-19, 2, 20-21, 3-8 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 13-16 Sairica S Raju(8761) For The Respondent(S) No. 13-16 Appearance In Cr.R.A. No.1182 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10-11, 6-9 Mr Rajesh K Kanani For The Respondent(S) No. 12 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2-5 Sairica S Raju(8761) For The Respondent(S) No. 2-5 Appearance In Cr.R.A. No. 1....
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....vocate Ms. Nidhi Prajapati For The Respondent(S) No. 2-7 Mr Rajesh K Kanani For The Respondent(S) No. 9 Appearance In Cr.R.A. No. 1208 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 3 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2 Sairica S Raju(8761) For The Respondent(S) No. 2 Appearance In Cr.R.A. No.1190 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 3-7 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2 Sairica S Raju(8761) For The Respondent(S) No. 2 Appearance In Cr.R.A. No. 1211 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate M....
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....i Prajapati For The Respondent(S) No. 2-8 Appearance In Cr.R.A. No.1183 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10-11, 2-9 Appearance In Cr.R.A. No. 1178 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10, 2-9 Appearance In Cr.R.A. No. 1209 Of 2018: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 10-11, 7-9 Mr Rajesh K Kanani For The Respondent(S) No. 12 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2-6 Sairica S Raju(8761) For The Respondent(S) No. 2-6 Appearance In Cr.R.A. No. 1185 Of 2018: Mr RC Kodekar(1395) For The App....
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....pplicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 1 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 3 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju For The Respondent(S) No. 2, Sairica S Raju(8761) For The Respondent(S) No. 2, Appearance In Cr.R.A. No.803 Of 2021: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 2 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju With Mr Shaishav S.Pandit For The Respondent(S) No. 1 Mr Dhanesh R.Patel For The Respondent(S) No.1 Appearance In Cr.R.A. No.898 Of 2021: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 2 Mr Yogesh S. Lakhani Senior Advocate With Advocate Mr Nandish Y Chudgar Assisted By Advocate Ms. Nidhi Prajapati For The Respondent(S) No. 1 Appearance In Cr.R.A. No.807 Of 2021: Mr RC Kodekar(1395) For The Applicant(S) No. 1 Ms, Maithili Mehta App For The Respondent(S) No. 2 Mr Yogesh S. Lakhani Senior Advocate With Mr. Bhadrish S Raju With Mr Shaishav S.Pandit For The ....
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....ted, and, thus stated that the order is based on whim and fancies, as the learned trial Court Judge was making a roving inquiry, as if, Court was conducting a trial, and the Court has appraised the evidence, as if, the Court was passing order of acquittal. 3.1 Mr. Kodekar, learned standing counsel, submitted that the trial Court has wrongly appreciated the statement of P.W. - R. Ramakrishnan, while he has clearly stated in his statement given before C.B.I. that HSD was sold by oil companies without physical inspection or technical inspection, the statement reveals that, the HSD was diverted by the private companies for their own wrongful gain. Mr. Kodekar stated that the statement of prosecution witnesses, Shri K.L.N. Shastri, ED, IOC, Shri P.Sudarshnam, ED, IOC, Shri A.K. Dubey, (IAS) of MoP & NG, clarify the guidelines of the Ministry, which stipulates the requirement of Technical Evaluation Committee for sale of HSD, to such private firms for its use as raw materials. 3.2 Standing counsel Mr. Kodekar submitted that the Court committed error while noting about the issue of sanction for prosecution under section 197 Cr.P.C., submitting that no protection to the employees of ....
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....allotment of HSD quota to the processing unit, and such supply of HSD could not be beyond the quantum mentioned in the allotment letter by the Ministry. Mr. Kodekar, thus, stated that the processing firm is supposed to first approach the officials of the oil companies for supply of HSD as per the quota allotted by the Ministry and it becomes a preliminary and mandatory duty of the officials before supply of the HSD to the processing units to check the order for allotment of HSD quota by the Ministry; hence, Mr. Kodekar submitted that no supply of HSD could be made to the processing units, without the order of the Ministry. 3.6 Mr. Kodekar stated that Shri A.K. Dubey, IAS & Director (Supplies), MoP & NG, was examined by the CBI to prove the policy of the government for supply of HSD to the processing units, and Mr. Sharad Gupta, Mr. H.C. Khurana, Mr. Kuldip Singh, Mr. C.S. Mishra and Mr. K.L.N. Shastri, and other officials of MoP & NG, have also reiterated and reaffirmed the statement of Mr. A.K. Dubey regarding the established procedures and policy prescribed by the MoP & NG, and requirement of TEC for supply of HSD to processing units. 3.7 Mr. Kodekar, thus, stated that as p....
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....tial local sales tax and Central Sales Tax at the rate of 4%, after getting allotted quota by the Ministry for supply of HSD to the processing units on actual user conditions. Mr. Kodekar stated that for the purchase of HSD on intrastate basis, the processing units have to submit C-Form to the oil companies for availing the said concession in sales tax. 3.9 Mr. Kodekar, thus, further contended that the evidence with regard to the policy of MoP & NG, requirement of technical evaluation by the TEC etc., was evaluated, and there was unanimous opinion in respect of the criminal involvement of the officials of the oil companies of marketing division, private firm owners and those mediators who had purchased the Dos/allocation letters of HSD from the firm owners and further lifting HSD and diverted the same in the market; and thus, concluded that the essence of the offence is the supply of HSD to private parties without the mandatory permission of the MoP & NG, and the officers, at different levels, have failed to ensure the compliance of the policy, and have even failed to ensure the bonafide end-use of the HSD; and the responsibility of the oil company can be viewed only through the....
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.... spite of ample evidence in the initial cases sent to the four oil companies for granting sanction for prosecution, the same was denied by all the four companies and a conscious decision was taken to launch the prosecution, as the denial of sanction would not dilute the commission of offence on the part of officials of oil companies; and stated that, law does not prohibit launching prosecution against the officials under IPC offences, where sanction has been denied and even against the retired officials under P.C. Act; while no protection can be granted to the officials of government companies or public sector undertakings. 3.13 Learned standing counsel Mr. Kodekar relied on the judgments of (i) Punjab State Warehousing Corporation Vs. Bhushan Chander And Anr., reported in (2016) 13 SCC 44 (ii) Mohd. Hadi Raja Vs. State of Bihar And Anr., reported in (1998) 5 SCC 91. 4. Senior Advocate Mr. Y.S. Lakhani for the respondents stated that OCC was connected with the MoP & NG, in need of implementation of the guidelines, and submitted, that the Circular dated 02.01.1981 by the MoP & NG was addressed only to IOCL for utilization of HSD by Koyali Refinery for production of high value ....
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....ser (R) is not received by TEC/oil companies within two weeks. Mr. Lakhani, thus, contended that this circular had made very clear that the inspection of TEC could not be in connection to HSD. Mr. Lakhani stated that C.B.I. has not recorded the statement of Adviser (R) of the Ministry to get the clarification of the Circular. 4.2 Senior Advocate Mr. Lakhani further submitted that by letter dated 27.03.2002 by the Government of India, MoP & NG, the TEC, which was constituted under the Circular dated 23.05.1995 and 18.09.1996, came to be dissolved with effect from 01.04.2002, and on dissolution of TEC by the said letter, Mr. Lakhani submitted that, all the companies were given liberty to make their own judgments about allocation of crude sludge, high Flash-HSD and LDO from the said date to put conditions to the best of their commercial prudence and business requirements. 4.3 Mr. Lakhani, senior advocate, thus, stated that the very case against all the accused are baseless since there was no reference to the requirement of TEC for the supply of HSD to processing units, nor there was any necessity of any recommendation of TEC for supply of HSD to the processing units. 4.4 Mr. ....
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....t the Circular dated 02.01.1981 was restricted only to Koyali Refinery. Further pursuing the said Circular, Mr. Lakhani, submitted that Mr. A.K. Dubey, Director to the Government of India, had referred to all the Circulars and had concluded that the circulars indicated, were applicable to the TEC for LSHF-HSD, HF-HSD, LDO and Crude Sludge; and, thus submitted that this very circular, which reads all the earlier circulars has concluded that the procedure to be adopted for an approval from TEC was not in connection with HSD, and the letter of A.K. Dubey, Director, Government of India, clearly proves that C.B.I. has filed the case against all the accused on a wrong assumption, which does not have its base on the circulars issued by the MoP & NG. 4.6 Senior Advocate Mr. Lakhani submitted that after the year 1996, there has been no other guidelines by the Government of India, and the allegations are pertaining to the year 1997-2000; the TEC stood dissolved vide effect from 01.04.2002, vide letter dated 27.03.2002, of the Ministry. Mr. Lakhani submitted that HSD was never a part of the guidelines and the government guidelines changed time to time, but there was no change in the Manual....
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....rlooking the circulars, letters and documents of the Central Government, and the charge is totally under misconception and non-applicability of the mind by the C.B.I. Senior advocate Mr. Panchal submitted that filing of charge-sheet had very large repercussion in the business of company, as well as in the lives of the officers of the Company, who suffered social stigma and arrest, and few of them were suspended and some are still under suspension; nothing prima facie is remotely suggested, the only circular in connection with HSD is with Koyali Refinery. Senior Advocate Mr. Panchal submitted that C.B.I. Officers have failed to even understand that HSD is separate and different product, which could be easily understood by simple reading of the circulars. 5.1 Making reference to the definition under the Petroleum Act, 1934, Mr. Panchal, senior advocate stated that, there is a classification of the petroleum, and, the flash-point denigrates the class, HSD falls under section 2(bb) of the Petroleum Act for petroleum Class 'B', which means petroleum having a flash-point of twenty-three degrees centigrade and above but below sixty-five degrees centigrade, and, thus stated that under t....
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..... Panchal, Mr. Lakhani and Advocate Mr. B.S. Raju relied on the following judgments in support of their arguments: (i) T.P. Gopallakrishnan Vs. State of Kerala, reported in 2022 SCC Online SC 1768; (ii) Masud Khan Vs. State of Uttar Pradesh, reported in (1974) 3 SCC 469; (iii) Captain Shankarrao Mohite Vs. Burjor D.Engineer, reported in (AIR 1962 Bom. 198; (iv) Sheila Sebestian Vs. R.Jawaharaj And Anr., reported in (2018) 7 SCC 581; (v) Mohammed Ibrahim And Others Vs. State of Bihar And Anr., reported in (2009) 8 SCC 751; (vi) Maksud Saiyed Vs. State of Gujarat And ors., reported in (2008) 5 SCC 668; (vii) Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. And Ors., reported in (2008) 13 SCC 678; (viii) Chittaranjan Das Vs. State of Orissa, reported in (2011) 7 SCC 167; (ix) Aneeta Hada Vs. Godfather Travels And Tours Pvt. Ltd., reported in (2012) 5 SCC 661; (x) Sushil Sethi And Another Vs. State of Arunachal Pradesh And Others, reported in (2020) 3 SCC 240; (xi) D.L. Rangotha Vs. State of Madhya Pradesh, reported in (2015) 12 SCC 733; (xii) Judgment of Lucknow Bench o....
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....egation is that during the period of 1997 to 2000, the eligible private industries could lift HSD from oil companies for their industrial use as raw material and for captive power generation. The private companies were required to justify their requirements of HSD to the oil companies as well as sales Tax Department to avail the concession in rate of sales tax. As per the case of C.B.I., the HSD so sold could only be used as raw material in the manufacture of taxable goods under the Gujarat Sales Tax Act and could not be used for any other purpose like processing material, consumable stores etc. While it was alleged that the HSD sold in the name of private companies were diverted in open market instead of using it for their declared use. It was alleged that HSD was sold in the market above the higher rate and because of the diversion, there has been huge revenue loss in the form of evasion of sale tax. 9.2 The C.B.I. has placed the case stating that, during the course of investigation commission of similar offences by 11 more units of Gujarat, 23 units of Madhya Pradesh and 12 units of Maharashtra came to light and searches were conducted at the office of four oil companies, sal....
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.... under section 227 of the Cr.P.C., after hearing the Advocates on record, had observed that C.B.I. had registered the case in the year 2000 for the offences allegedly committed from 1997 to 2000, and after 10 years, the Charge-sheet was filed in different cases based upon only one F.I.R. The learned Judge while observing the prosecution case has noted that it is against some unknown officers of the oil companies, sales tax department and owners of private units, alleged to have hatched conspiracy, abusing official positions and having caused wrongful loss to the government exchequer by selling HSD to various private industries of various states, which were either non-existent or non-functional. The learned Judge referring to the charge-sheet has noted that TEC had issued various circulars for supply of HSD and the circular dated 2/6-11981 applies only to Koyali Refinery, Vadodara, and at that time, this refinery was manufacturing LSHF-HSD (Low Sulphur High Flash - Diesel), which was meant for Navy. The learned Judge observed that the statement given to C.B.I. by R. Ramakrishnan, who is convener of TEC, on 09.06.2000, notes that the evaluation by TEC was only for LSHF-HSD; Mr. Ramak....
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....ll such time the evaluation and reporting of the TEC is completed and thereafter to the satisfaction of IOCL as to the genuine utilization of HSD released earlier. Further condition laid in the said circular was that, six months return of HSD released and products produced therefrom should be obtained from the processor and submitted to the Ministry. 12. It has been argued by Senior Advocate Mr. Lakhani that TEC was entrusted with the task of reviewing the supply of feed-stock to the existing and new manufacturers of petroleum speciality and the committee was required to draw method and procedure with the assistance of oil companies and other agencies to ensure that the petroleum specialities are used in bonafide manner and the TEC was required to look into the supply of LSHF-HSD, LDO and crude sludge for the manufacture of petroleum specialties. Mr. Lakhani submitted that vide Circular dated 17.03.1988, which has a reference of the letter dated 02.01.1981, which was in context of Koyali Refinery, the circular very clearly noted that additional items would be assigned to the TEC as necessary from time to time, thus, Mr. Lakhani stated that notification under the Circular dated 1....
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....ed to the Technical Evaluation Committee as necessary from time to time." 12.4 Again by Circular dated 23.05.1995, addressed to all the oil companies, the Technical Evaluation Committee was reconstituted. The said circular reads as under: "To All the Oil Companies Subject:- Re-constitution of Technical Evaluation Committee on supply of feed stock for the production of petroleum specialities. Sir, In supersession of this Ministry's letter of even number dated 9.2.94 on the subject noted above, I am directed to convey the approval of the Government to the re-constitution of the said Committee till further orders, comprising of the following:- i) A representative from Indian Oil Corporation Convenor. ii) A representative from CHT, New Delhi. iii) A representative from Bureau of Indian Standards (BIS), New Delhi. iv) A representative from OCC, New Delhi. 2. The scope of Technical Evaluation Committee would be: (a) To examine the technological capability of the undertaking to process the allocated feedstock. (b) To inspect the testing laboratory capabilities to evaluate the pro....
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....ommittee therefore stood dissolved w.e.f. 01.04.2002. The said circular, thereafter further in the said communication gave liberty to all the oil companies to make their own judgments about allocation of crude sludge, high flash HSD and LDO from the said date and to put conditions, to the best of their commercial prudence and business requirements. 13. The charge-sheet had been filed for the period between 1997 to 2000, alleging that private industries would lift HSD from oil companies for the industrial use as raw material and for captive power generation, and no necessary permission of the MoP & NG was obtained nor any recommendation of TEC, oil companies and State Electricity Board was taken 14. The guidelines for release of petroleum product and lubricants to direct customers was issued on 08.07.1991 by Oil Coordination Committee. The Manual was complied by the members of the oil industries as an aid to the field staff in advising new as well as existing customers about the modalities for obtaining supplies to petroleum products and lubricants directly from the oil companies. The guidelines stated in the Manual pertained to the situation prior to the introduction of Deman....
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....ustries, while the price of the regulated product was fixed by MoP & NG. HSD being regulated product was noted, as under: "HSD:- HSD is primarily a transport fuel used by Defence, Railway, State Transport Undertakings, goods carrying vehicles, earth moving equipment, DG sets, start-up fuel for boilers, etc. HSD is also processed by distillation for producing different boiling ranges which are used for manufacturing speciality products such as spray oil, white oil, industrial solvents, etc. The customer approaches the Oil Industry for release by placing an indent for supplies. The Oil Industry verifies the approval of Explosive Deptt. for storage of product. Also if the supplies are required on Inter State basis, the Oil Industry checks the Central Sales Tax Registration Certificate for assessing the customers' eligibility to receive supplies on Concessional Sales Tax." 14.4 In regard to the delivery of the product, the said letter contained as under: "Subject to satisfying the above needs and based on Commercial understanding, a customer code number is allotted in respect of the customer. Thereafter, the Supply Point is authorized to release the produc....
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.... duly acknowledged by the customer for having duly received the supply, while in case of ex-storage supplies, the customer places an indent and takes supplies in his own / hired tank lorry. In case of inter state supplies, the concessional Sales Tax form is collected at the time of supply. After verification of the documents and the Commercial terms, the Supply Point releases the supply, and the signature is obtained of the Authorised representative for having received the quantity indicated in the Delivery Challan. This whole process, as noted in the Manual does not insist for any report of the TEC. The Manual itself clarifies the process of self supply in bulk and in small percentage. In case of inter state supplies, the process of concessional sales tax form is to be followed and, the oil companies checks the central sales tax certificate for assessing the customer's eligibility to receive supplies on concessional sales tax. 15. Here, the F.I.R. was registered on 23.05.2000, thereafter the letter dated 06.11.2000, signed by directors of four oil companies viz. IOC, BPC, HPC and IBP addressed to Additional Secretary, MoP & NG, Government of India, New Delhi, referred to all th....
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.... and unknown officers of sales tax department and owners of private units in conspiracy with each other abused their officials position and caused wrongful loss to the government exchequer by selling HSD to various private industries of various states which were either nonexistent or non-functional. Looking to the charge sheet Technical Evaluation Committee (TEC) had issued various circulars for supply of HSD. The circular dtd. 2/6-1-1981 applies only to Koyali Refinery of Vadodara. At that time, this refinery was manufacturing LSHF-HSD (Low Sulphur High Flash - Diesel), which was meant for Navy. The statement given to CBI by R. Ramakrishnan, who is convener of TEC, on 9/6/2000, clearly stated that as per the policy circular, evaluation by TEC was only for LSHF-HSD. He also stated that the specification of both items does not refer to any other State or any other refinery, other than Koyali. So, looking to the statement given by the convener of TEC, prima facie appears that the circular of 1981 will not to apply to HSD. After 1981, TEC had also issued circulars on 17/3/1988 and then after in 1994, 1995 and 1996. All the circulars state that the TEC would look into supply of LSHF-HS....
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....d by any officer from the sales tax department. It also appears from the charge sheet that no complaint was lodged for alleged forged/fake "C" form. Moreover, even if it is presumed that the said "C" forms were forged or fake, even then no staff members from the sales tax department has been arraigned as accused in the case. It has not come on record that any persons from the sales tax department has alleged that the "C" forms used for HSD were forged or fake. There is no evidence regarding forged document. It is true that blank "C" forms were submitted. But there is no allegations that the said "C" forms were bogus. Supposed that "C" forms were bogus, but then it is not the case of the prosecution that those "C" forms were forged and produced by the applicants accused. Generally the "C" form were produced by the purchaser. There is no evidence that the applicants were aware that the "C" forms were bogus. There is no allegation that the accused committed forgery or produced forged documents. The applicants accused have not used any "C" form but the private party has produced it at the time of delivery. Looking to the "C" form, no officer of oil companies can say that "C" f....
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....the Cr.P.C. 17.1 Para 24 to 27 of Mohd. Hadi Raja Vs. State of Bihar And Anr. (supra), read as under: "24. It is also to be indicated here that in 1973, the concept of instrumentality or agency of state was quite distinct. The interest of the State in such instrumentality or agency was well known. Even then, the legislature, in its wisdom, did not think it necessary to expressly include the officers of such instrumentality or the government company for affording protection by way of sanction under Section 197 Cr. P.C. 25. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of 'public servant', they have been declared to be 'public servants' under several special and local acts. If the legislature had intended to include officers of instrumentality or agency for bringing such officers under the protective umbrella of Section 197 Cr. P. C. It would have done so expressly. 26. Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 liberally construing the provisions of Section 197. Such exercise of liberal construction will not be c....
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....oing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Mataj....
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.... that there were various guidelines issued by MoP&NG and by the OCC, and such guidelines were issued with a a particular objective to ensure the end use of HSD sold to processors and consumers, and the guidelines include in the form of circulars, wherein Circular No.P-24013/5/80-SUP dated 2nd January, 1981 of the MoP&NG and guidelines dated 8th July, 1991 of OCC, too are referred by him. 18.2 Mr. Shastri has referred to the Circular dated 02.01.1981 addressed to IOCL with respect to the utilization of HSD from Koyali Refinery for the production of High Value Specialities items and the guidelines dated 08.07.1991 of OCC. He had also been asked regarding his clarification dated 23.08.1999 in respect to release of HSD to processors, and he had referred to a letter No.TEC/Circ. dated 04.08.1999 of Shri P.Sudarsnam, ED (Plng., P&S and BD), IOC, Ho. Mumbai to the Executive Director, OCC, regarding the release of HSD to processors. The said letter reads as under: "Executive Director, Oil Co-ordination Committee, Scope Complex, 2nd floor, Core-8, Lodhi Road, NEW DELHI - 110 003. Dear Sir, SUB: RELEASE OF HSD TO PROCESSORS ....
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....91, it is stated that the Oil Coordination Committee (OCC) has been wound up effective 1.4.2002 and, however, efforts have been made to locate the original copy of the guidelines from the available records with PPAC but in vain. Hence the same cannot be furnished." 18.5 The compilation and circulation by OCC on 08.07.1991, of the Guidelines for Release of Petroleum Products and Lubricants to Direct Consumers have not been denied, which suggests that the same was in force and all oil companies were following the guidelines since 1991. The charge-sheet has been filed for period between 1997-2000. The guidelines of OCC dated 08.07.1991 had not found any change. Mr. Shastri had referred in his Fax message of no change in the guidelines for allocation of HSD to processors. According to him, HSD allocation to the processors is approved by the MoP&NG based on the certification and recommendation of the TEC of the Oil Companies. The guidelines referred and relied upon does not reflect any certification and recommendation of the TEC to the oil companies, and, when a clarification was sought by P. Sudarsnam by a letter dated 23.08.1999, Mr. Shastri states before the C.B.I. that there was ....
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....GM Ahmedabad, in reference to the letter dated 19th August, 1997, clarifies that the guidelines from MoP&NG with regard to the processors, who would like to uplift HSD had to make an application to IOCL and the same thereafter could be forwarded to TEC for consideration. Thus, the same is also in connection to IOCL and not for other oil companies. Almost all the communications for the various Private Ltd. Companies produced on the record of the case were by the Indian Oil Corporation Ltd. (IOCL) to the Ministry. 18.10 The letter of the OCC dated 04.12.1996 to the under Secretary MoP&NG, New Delhi, for the requirement of HSD/HF HSD/LSHF and NGL/Naphtha for M/s. Shaynoa Petrochem Ltd. for manufacture of speciality solvent and lubricants, reflects that the TEC was required to evaluate the requirement, and submit the recommendation to MoP&NG and based on the recommendation of the TEC, it was noted that, MoP&NG, may consider to release of HSD/HF-HSD/LSHF for processing use ex-Koyali refinery, while the supply of NGL ex-Hazira was ruled out, as the only possibility was of supplying Naphtha ex-Koyali refinery of IOC. It was further noted that since December, 1992, Naphtha import had be....
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.... reviewed by the Ministry and on dismantling of the APM from 01.04.2002, in the circular, it was noted that the price of diesel would be also decontrolled, and under such circumstances, the specific objective and role of the TEC had lost its purpose and relevance, and were informed that the TEC stood dissolved with effect from 01.04.2002. The Oil Companies were made free to take their own judgment about the allocation of crude sludge, high flash-HSD and LDO from the said date and to put conditions, to the best of their commercial prudence and business requirements. 18.13 In view of this circular itself, there was no reason for the C.B.I. to file charge-sheet against any of the accused. None of the communications of the Ministry, except of 02.01.1981, for the utilization of HSD from Koyali Refinery, required any TEC recommendation for lifting of HSD from any other companies. The C.B.I. failed to take into account that the Ministry had never called for any clarification from any other company during the period between 1997 - 2000 in connection with the alleged facts noted in the F.I.R., the officers, who were working in the company, would go by the understanding of the Circulars. ....
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....us, according to him, the oil companies IBP, HPCL, BPCL & IOC were also supposed to file sales tax returns. Mr. Dixit stated that oil companies furnish the details of sale of HSD sold from within the state or outside the state against form-C, and purchasers outside Maharashtra purchased HSD from oil companies in Maharashtra against form-C on payment of CST at 4%, to be deposited with the sales tax authorities of Maharashtra. 19.2 According to Mr. Dixit at the time of processing of the application and scrutiny of the documents, it was ascertained that the firm exist at the place shown in the application, and, the aspect of manufacturing of goods and engagement in business activities etc. were verified later on, but initially the firm can get registered and start its business, and the firms on their request for the declared purpose were issued blank C-forms by the Sales Tax Officer of their jurisdiction. Mr. Dixit stated that the competent authority for registration certificate is the Sales Tax Officer of the registered branch, and the issuance of 'C' forms is by the assessing officer of their jurisdiction, and the officer in-charge of assessment of that particular case; the proce....
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....ecial Judge has observed that the applicants are public servants, who have acted as per the circular issued by the Government, and the prosecution has not established any prima facie case or any illegal act done or any act which is legal, but has been shown by using illegal means; as per the prosecution case, there were large number of persons from different parts of country, unrelated to each other, unknown to each other therefore the learned trial Court concluded that there cannot be presumption that they would have entered into any criminal conspiracy. The learned Special Judge observed that as per the record, four oil companies are of Gujarat, Maharashtra and Madhya Pradesh and there is no evidence to show that the officers of the oil companies had gathered, or met sales tax officers or staff or purchasers with an intention to commit the alleged offence. 20.2 For the offence under the P.C. Act, the learned Special Judge found that there is no prima facie evidence to show that the applicants had accepted any gratification from any person as a motive or reward, and the applicants accused had followed all the instructions issued by the MoP & NG and acted in discharge of the dut....
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....nment guidelines are in force. 21.1 The Petroleum Act, 1934 had come into force to consolidate and amend the law relating to the import, transport, storage, production, refining and blending of petroleum; that makes the provision with regard to petroleum, classifying it into A, B and C giving the meaning according to the flash-point as noted in the definition. The Petroleum and Natural Gas Regulatory Board Act, 2006 makes establishment and incorporation of the Board by section 3, and the complaints and disputes are to be resolved by the Board. 21.2 The communication by the oil companies dated 06.11.2000 regarding the circulars of the MoP&NG reflects their understanding about those circulars of the Ministry. The officers of the Oil Companies were required to follow the circulars and as has been noted by the learned Special Judge, they have been consistently followed by all the oil companies and the circulars do not refer to, regular HSD. 21.3 The Petroleum and Natural Gas Regulatory Board Act, 2006 defines HSD under section 2(r) and section 2(zd) defines oil company, which read as under: "2(r):- "high speed diesel" means any hydrocarbon oil (excluding mineral colza....