Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the judgment and order of conviction and sentence passed by the learned Judge, Special Court (E.C. Act), Midnapore in D.E.B. G.R. Case No. 44 of 1984 on 13.05.1988.
2. Briefly stated, the prosecution case is that on receipt of an information, S.I.B.K. Nath (P.W. 1) being accompanied by other police personnel raided the godown of the appellant/accused at Mouza Barada, P.S. Ghatal, Dist. Midnapore on 17.10.84 between 12.30 p.m. and 1.30 p.m. and after checking and physical verification found the stock of articles in respect of kerosene oil, light diesel oil and loose mobil oil tallied with the stock-cum-rate board displayed in the godown. But during thorough checking, 17 full barrels of 200 litres each and one half barrel of H.S.D. oil were found kept concealed on the south-west corner of the godown, for which the accused could not produce any licence or documents or any valid paper for dealing with the same. So, the accused was arrested and the said barrels of H.S.D. oil along with other articles were seized on account of violation of the provisions of paragraphs 3(5) and 3(7) of the West Bengal Motor Spirit and High Speed Diesel Oil (Licensing, Control and Maintenance of Supplies) Order, 1980 with a view to prosecuting under Section 7(1)(a)(ii) of Act X/55. The appellant/accused was accordingly charged under Section 7(1)(a)(ii) of Act X/55 for violation of the aforesaid provisions of the Order.
3. The defence case, as suggested to P.Ws. and as contended by the accused during his examination under Section 313, Cr.PC, is that the seized 18 barrels did not contain H.S.D. oil but light diesel oil and he has been falsely implicated in this case.
4. Eight witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the learned Court below found the accused guilty under Section 7(1)(a)(ii) of Act X/55, convicted him thereunder and sentenced him to suffer SI for two years and to pay fine of Rs. l,000/-i.d. to SI for two months.
5. Being aggrieved by, and dissatisfied with, the said order of conviction and sentence, the accused/appellant has preferred the present appeal.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. According to the evidence of P.W. 1 S.I., B.K. Nath, on 17.10.84 at 12.30 hrs. he accompanied by S.I., Gour Hari Karmakar, A.S.I., Nandgopal Pal (P.W. 6), Watcher Constables, Bhubaneswar Tewari and Sunil Kumar Dutta (P.W. 4) visited the shop-cum-godown of the accused at Mouza Barada, P.S. Ghatal, and after disclosing their identity he asked for documents of the shop. The stock-cum-rate board stood in the name of the accused. Entries regarding kerosene oil, light diesel oil and loose mobile oil were there. After physical verification by weighment and measurement he did not find any discrepancy between the actual stock and the entries in the stock-cum-rate board. Then after thorough search he detected seventeen full barrels and half barrel of high speed diesel oil which were kept concealed on the south-west corner of the godown. He asked the accused to produce documents in respect of those barrels, but the accused failed to produce any licence or documents showing authority of possession of the same nor could give any satisfactory explanation for possession of the said seventeen and half barrels of H.S.D. oil. He also found several pots with which H.S.D. oil is usually measured. He drew sample of H.S.D. oil from three barrels in three phials which were duly sealed and labelled. He seized licence of the shop and also licence for lubricating oil standing in the name of the accused, cash memo books, stock-cum-rate board, seventeen and half barrels of H.S.D. oil, three sample phials and oil measuring pots under a seizure list (Ext. 1) in presence of witnesses, gave one sample phial to the accused followed by arrest of the accused and his production before the Court. He submitted a written complaint (Ext. 2). He produced the said seventeen full barrels and half barrel at the P.S. and made a prayer before the Collector for confiscation of the seized articles. He made over the sample phials to the Investigating Officer later under the direction of superior officer for ascertaining whether the contents of the phials were H.S.D. oil. The above evidence in material particulars is corroborated by P.Ws. 4 and 6. P.W. 2 is a witness to the seizure and P.W. 3 is another witness to the seizure who was declared hostile. The case being No. 9 dated 17.10.84 of Ghatal P.S. being endorsed by the Inspector for investigation, P.W. 7 S.I. Makhanlal Biswas took up investigation of the same, visited the P.O., examined witnesses, sent one sample of H.S.D. oil to the chemical examiner for chemical examination, returned the seized licence of kerosene oil and lubricating oil to the accused under zimmanama as per order of the Court and on account of his transfer made over the case to S.I. H.B. Chowdhury (P.W. 8) for further investigation. P.W. 5 P.K. Samanta, Senior Scientific Officer (Chemistry) of State Forensic Science Laboratory, after analysis of the contents of the sealed container (marked 'E' ) sent his report (Ext. 4), and in pursuance of query made by DEB he submitted another report (Ext. 5). According to the said first report (Ext. 4), the bottle, marked 'E' containing some quantity of brown liquid substance, is of petroleum product but it does not satisfy the I. Section specification for high speed diesel oil (IS 1460-1968). According to the second report (Ext. 5) in connection with the query, the sample marked 'E' appears to be high speed diesel oil mixed with some higher fractions of petroleum product. P.W. 8 during the course of further investigation received report of chemical examiner (Ext. 4), sought for further clarification on some points of the said report, received the report (Ext. 5) of the chemical examiner containing further clarification, and after completion of investigation submitted chargesheet on 2.10.85.
8. Mr. Basu, learned Counsel for the appellant, on referring to the aforesaid Exts. 4 & 5 contended that it is the specific case of his client that the seized eighteen barrels contained light diesel oil and not H.S.D. oil and when it is the specific evidence of P.W. 5 that the report (Ext. 4) is true and correct, no reliance should be placed on the subsequent report (Ext. 5) submitted in connection with the query, and there appears to be enough force in such contention.
9. P.W. 5 in one place of his cross-examination deposed that his report (Ext. 5) is based on figure supplied in connection with the earlier report (Ext. 4). If that be so, at the time of analysis and submission of the first report (Ext. 4) the said figure was available with him and it is his specific evidence that the above report (Ext. 4) is true and correct. Accordingly, his subsequent report (Ext. 5) with the opinion that the sample appears to be high speed diesel oil mixed with some higher fractions of petroleum product does not prima facie stand.
10. As stated earlier, the allegation against the accused is violation of the provisions of Clauses (5) and (7) of paragraph 3 of the said Order.
11. P.W. 1 during his visit on physical verification after measurement and weighment did not find any discrepancy in the actual stock of the shop and the entries made in the stock-cum-rate board. That after thorough search he could detect seventeen full barrels and half barrel of high speed diesel oil kept concealed on the south-west corner of the godown and that he seized the same under a seizure list (Ext. 1), which is buttressed by the testimony of P.Ws. 4 and 6, remains uncontroverted in their cross-examination. The very suggestion to P.W. 1 in cross-examination that the accused gave out that seized eighteen barrels contained light diesel oil for which he had documents and similar suggestion to P.W. 6 that the seized barrels contained light speed diesel oil and not high speed diesel oil lead to suggest that seizure of the said eighteen barrels containing 3500 litres in total is not at all disputed.
12. Clause (5) of paragraph 3 of the said Order provides that every dealer shall maintain true and correct accounts of purchase, sale, and storage of oil at his business premises, to be written up at the end of each day, showing-
a) the opening stock of the day,
b) the quantity received during the day,
c) the quantity sold, delivered or otherwise disposed of, during the day,
d) the closing stock of the day, and
e) such other particulars as the State Government may, by order in writing, specify.
13. Under Clause (7) of paragraph 3 of the aforesaid Order, no person shall carry on business in high speed diesel oil except under and in accordance with the licence granted under this order with effect from such date as the State Government may specify by notification in the Official Gazette.
14. As contents of the said seized eighteen barrels are found to be not high speed diesel oil, the above Clause (7) is not attracted here. The statement of an accused under Section 313, Cr.PC though not strictly evidence in the case may be taken into consideration in judging the guilt or innocence of the accused. In the present case, the accused during his examination under Section 313, Cr.PC contended that there was no high speed diesel oil in his shop nor he runs any business in high speed diesel oil and that he sells light speed diesel oil for which he has licence.
15. 'Oil', as used in Clause (5) within the definition of Clause (h) of paragraph 2 of the Order means (i) motor spirit or (ii) high speed diesel oil. 'Motor spirit' has not been defined in the Order. It is a well-recognized principle in dealing with matters of construction that subsequent legislation may be looked at: in order to see what is the proper interpretation to be put upon the earlier Act where the earlier Act is obscure or ambiguous or readily capable of more than one interpretation, as was held in the case of State of Bihar v. S.K. Roy reported in : 1966CriLJ1538 . In explaining the ruling in Ormond Investment Co. v. Beits 1928 AC 143. Lord Denning observed in Payne v. Bradley 1962 AC 343, as follows : 'It is permissible to look at a later statute, not perhaps to construe the earlier statute, but to see the meaning which the Parliament puts on the self-same phrase in a similar context, in case it throws any light on the matter.' In the West Bengal Motor Spirit and High Speed Diesel (Licencing & Regulation of Supply) Order, 2000 'motor spirit' or M.S. in abbreviated form within the definition of Clause (g) of paragraph 2 means any hydrocarbon oil (excluding mineral oil) which conforms to Bureau of Indian Standards Specification No. IS-2796 which is ordinarily used for providing reasoxiable motive power for any form of motor vehicle or for internal combustion engines (but does not include kerosene). Though substantially similar is the meaning of 'motor spirit' within the definition of Clause (i) of paragraph 2 of the West Bengal Naphtha (Acquisition, Storage, Sale and Prevention of Use in Automobiles) Licensing Order, 2000, and Clause (i) of paragraph 2 of the West Bengal Solvent, Raffinate, Slop and other Equivalent Petroleum Products (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000, the same need not be considered for the purpose of the present case. In the case on hand, there is nothing to suggest that the said oil, as could be detected, conforms to the requirements of Bureau of Indian Standards Specification No. IS-2796. Therefore, in the absence of any material, it is becoming difficult to hold the said oil as motor spirit. That apart, no charge for violation of possession of such oil has been made against the accused, and accordingly the accused cannot be held guilty under Section 7(1)(a)(ii) of Act X/55 for violation of the provisions of either Clause (5) or Clause (7) of paragraph 3 of the said Order.
16. In the premises, in the light of the above discussion, the impugned order of conviction and sentence passed by the learned Court below is not sustainable.
17. As such, the appeal is allowed. The impugned order of conviction and sentence passed by the learned Court below is set aside. The accused is found not guilty and he be acquitted of the charge under 7(1)(a)(ii) of Act X/55, and be set at liberty at once.
18. Let a copy of this judgment along with the LCR be sent down at once to the learned Court below.
19. Urgent xerox certified copy of this judgment, if applied for, he supplied to the parties as expeditiously as possible.