Saroj Gupta Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
constitution of india - article 226 -- essential commodities act, 1955 -- section 7 -- writ petition seeking quashing of fir -- amendment of specification of motor gasoline under the directions of supreme court -- appropriate limit of benzene fixed at 3% by notification of 2002 -- the sample lifted from the petitioner found to be within permissible limit -- fir against the petitioner quashed. - r.c. jain, j.1. through this petition under article 226 of the constitution read with section 482 cr.p.c. the petitioner seeks quashing of fir no. 90 dated 16.4.2002 registered against the petitioner under sections 7 of the essential commodities act, 1955 at p.s. dilshad garden. the petitioner is a dealer in motor spirit and high speed diesel and carries her business under the name and style m/s city auto, jhilmil industrial area, g.t.road, shahdara, delhi. on 26.2.2002 an assistant commissioner, food and supplies, department of govt. of nct of delhi had drawn two samples of motor spirit from the two tanks of the said outlet. the samples were sent for testing at the fuel testing laboratory, noida. the report received from the said laboratory opined that the samples were not conforming to the specifications prescribed for motor gasoline in as much as the content of benzene % volume was excessive by 0.1% in one sample and 0.3% in the other sample and, accordingly, it was alleged that the petitioner had violated the control order no. 0034/pa/ aoi/tpt/2000/ 1518 dated 14.8.2000, which in turn made her liable for the offence under section 7 of the essential commodities act.2. after being noticed, the parties i.e. union of india, the investigating agency as also the manufacturer and supplier ibp were called upon to file their response which have been filed in the shape of a status report dated 10.9.2002 by ms. salma khan, inspector, food & civil supplies and a counter affidavit of mr. s.l.vashishts, working as a deputy secretary, ministry of petroleum and natural gas, govt. of india. parties have also filed certain documents on record including the orders passed by the supreme court in that connection.3. i have heard mr. sanjay bansal, learned counsel representing the petitioner, mr. kailash gambhir, learned counsel representing the union of india, ms. mukta gupta, learned standing counsel and ms. mala narayan, learned counsel for the ibp, and have bestowed my thoughtful consideration to their respective submissions.4. the only question, answer of which would decide the petition, is whether on the date of alleged commission of the offence, i.e. 26.2.2002, the petitioner had violated any specifications or any order issued under section 3 of the essential commodities act, 1955. mr. kailash gambhir, learned counsel representing the union of india has submitted that pursuant to certain orders made and directions given by the hon'ble supreme court, the specification of the motor gasoline were amended by amendment no. 1 of january, 2002 thereby specifying revised specification for motor gasoline. the said revised specification reads as under:-'amendment no. 1 january 2002tois 2796: 2000 motor gasolines specification(third revision)(foreword third cover page (f) --- insert the following at the end:however, the committee took cognizance of the fact that the premier laboratories in the country desired that the twin carburetor ambassador gasoline engine test may be retained to be employed concurrently up to april, 2003.[(page 2. table i si no. (viii), (xii) and (xv)]---substitute the following for the existing:-----------------------------------------------------------------------------------------'sl.no. characteristics requirements methods of test ref to unleaded unleaded (pt) of is annex regular premium 1448----------------------------------------------------------------------------------------- (1) (2) (3) (4) (5) (6)-----------------------------------------------------------------------------------------viii) sulphur total, percent by mass.max: (p:34) a) for notified area 0.05 0.05 b) for the rest 0.10 0.10 ------xii) benzene content, percent by volume, max: a) for notified areas 1.0 1.0 b) for metros 3.0 3.0 c) for the rest 5.0 5.0xv) engine intake system report mfa report mfa ------ cleanliness used used-----------------------------------------------------------------------------------------(page 3, table 1, footnote 6)' substitute the following for the existing.5. the above amended specification would show that so far as the benzene content is concerned, it was specified that it could not exceed 1% per volume of the motor gasoline in the case of notified area, not more than 3% for metros and not more than 5% for the rest of the areas. it is, thereforee, manifest that so far as the metro areas were concerned, the optimum limit of benzene in motor gasoline could be 3%. the court had obtained a clarification from the union of india to clarify if after the issuance of the said amendment, any further order/notification was made by the government specifying the territory of delhi as 'notified area' within the meaning of the above notification. in response to which the above-named deputy secretary in his affidavit, more particularly in para-8, has in unequivocally terms deposed that the union government has not notified any area for the purpose of the amended notification dated 1.1.2002 but such a notification was in contemplation. in fact, a notification s.o. 744(e) dated 1st june, 2005 in furtherance of section 3 of essential commodities act and amendment no. 1 january 2002 to is2796:2000 motor gasolines specification (third revision) dated 1.1.2002 specifying the 'notified area' i.e. for the purpose of benzene contents, has been issued for the areas falling in the national capital region and greater mumbai only. the notification reads as under:-'s.o.744(e).__ in exercise of the powers conferred by section 3 of the essential commodities act, 1955 read with clause 6 of the motor spirit and high speed diesel (regulation of supply and distribution and prevention of malpractices) order, 1998, the central government hereby directs all the oil companies, dealers, agents and other engaged in the business of selling motor spirit that the benzene content in the motor spirit sold in the areas of national capital region and greater mumbai shall not be more than 1 per cent (maximum) by volume'6. from a perusal of the two orders/notification, it is apparent that on the date of the alleged commission of offence i.e. on 26.2.2002, the motor gasoline specifications as on january, 2002 were applicable which permitted the sale of motor gasoline with benzene contents up to 3%. since it was for the first time that on 1.6.2005 that areas ncr and greater mumbai have been notified as the 'notified area' for the purpose of notification dated 1.6.2005, this court has no hesitation in holding that the samples lifted from the outlet of the petitioner were fully conforming to the specifications of motor gasoline laid down by the government. consequently, the petition deserves to be allowed and the fir no. 90 dated 16.4.2002 and all consequential proceedings, if any, liable to be quashed. ordered accordingly.7. petition and all pending applications stand disposed of.