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Synopsis

The Supreme Court has quashed an FIR and a charge sheet filed against manager of a company and owner of a petrol pump and another person, accused of mixing hydrocarbon into petrol and diesel, to cheat ordinary customers and to deprive the government of taxes, by drawing adverse inference on the failure of the state government to produce a test report for two years to substantiate the charges.

A bench of Justices Abhay S Oka and Pankaj Mithal allowed an appeal filed by Suresh and others against the Madhya Pradesh High Court's order and quashed the FIR filed on October 14, 2021 registered with Kishanpura, District Indore and the consequent charge sheet.

"Unless there was a material forming part of the charge-sheet to show the nature of the liquid, no offence is made out. Now, it is too late for the State to file a report after a gap of more than two years. The respondent was put to notice by this Court by the order dated 27th March 2023 about the failure to produce the report. However, the respondent has not attempted to get the report during the last seven months. Even an adverse inference can be drawn against the respondent. Hence, the continuation of the prosecution will be an abuse of the process of law," the bench said. 

The appellant's counsel contended though samples were sent to the laboratory in charge of BPCL, a report from the laboratory has not been received. He submitted that even after taking the charge sheet and material therein as correct, there is no material to show the nature of the liquid found in the tanker at the time of its interception. Hence, no offence was made out. 

Opposing the plea, the state government counsel relied upon the statement under Section 27 of the Indian Evidence Act, 1872 of the first appellant, driver stating that he used to pick up ‘concocted fuel’ from Shivam Industries for distribution to the fuel stations. He submitted that the issues raised by the appellants can be decided only after the evidence is adduced. He submitted that there is a violation of the Motor Spirit and High Speed Diesel Oil (Regulation of Supply and Distribution and Prevention of Malpractices) Order 2005. He also contended all the issues raised can be decided only at the time of trial.

The bench noted it is alleged the accused were cheating ordinary customers, and causing illegal losses them and even the government of the tax which can be levied on petroleum and diesel. 

"Though FIR was registered on 14th October 2021 and the charge sheet was filed on 11th February 2022, even as of today, the expert’s report on the nature of the liquid found in the seized tanker has not been produced," the court noted.   

It also pointed out the entire foundation of the charge sheet is that there was a hydrocarbon mixture in the seized tanker, which looks precisely like petrol and diesel and smells like petrol and diesel. 

"Along with the charge sheet, the respondent did not produce an expert's report regarding the precise nature of the liquid in the tanker. An expert’s opinion showing that the liquid was neither petrol nor diesel, but the hydrocarbon mixture has not been placed on record. As stated, samples were sent more than two years back for testing, and a report has not yet been received," the bench said.

It further said the allegation of cheating was also made on the footing that thousands of customers were supplied with the said mixture instead of petrol or diesel. 

The court set aside the High Court's order declining any relief to the appellants.

According to the prosecution, on October 7, 2021, invoices were issued by Bharat Petroleum Corporation Ltd in the name of MP Bombay Auto Service Petrol Diesel Pump owned by the third appellant for the sale and transportation of 9 Kilolitres each of petrol and diesel through a particular tanker. It was alleged that the subject fuel was shifted to another tanker due to the valve failure in the original tanker.   

The first appellant was the driver of the tanker, which carried the subject fuel. On October 11, 2021, the SHO of Police Station Kishanpura District, Indore, intercepted the truck while unloading the subject fuel at the third appellant's petrol pump.