Guidelines are In-house Mechanisms: High Court of Jammu & Kashmir and Ladakh at Jammu

Guidelines are in-house mechanisms devised to prevent malpractices and adulteration, and it cannot be determined whether they are mandatory or not when it is not forthcoming from such guidelines, as observed by the High Court of Jammu & Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. RAJNESH OSWAL, in the matter of Pankaj Kumar & Anr. vs. State of Jammu & Kashmir [CRMC No. 139/2008], on 03.12.21.

The facts of the case were that upon a surprise visit by the police, to the appellants’ petrol pump at Pul Doda on the complaint received regarding mixing of kerosene oil in the diesel and petrol, samples of both diesel and petrol were taken for chemical analysis, the results of which confirmed such mixture. On the basis of the same, a chargesheet was filed. The Court of Additional Sessions Judge, that is, the trial court, found the adulteration of the mixture, and passed an order by virtue of which charge for commission of offences under Sections 3 and Section 7 of the Essential Commodities Act, 1955 had been framed against the appellants. Aggrieved by the order, the appellants preferred the present appeal.

The Learned Counsels for the appellant, Mr. K. S. Johal, with Mr. Supreet Singh Johal, submitted that was registered on the basis of false and frivolous allegations and the case was investigated by the Police without jurisdiction and even if the case of the prosecution is taken to be correct, no case is made out for the commission of alleged offences against the appellants. The order was also challenged on the grounds that the guidelines framed for retail outlet dealership of Public Sector Marketing Oil Companies clearly indicated the procedure for collection and testing of samples, and the police had failed to adhere to the guidelines by directly taking samples from the retail outlet. Further, it was argued that the FIR was registered on 06.08.2007 whereas the samples were collected on 30.12.2006 that is nearly after the seven months. The delay in carrying out the laboratory test of the samples taken on 30.12.2006 being conducted on 27.07.2007 is capable of causing variations and on the basis of this ground alone, the order impugned was rendered not sustainable.

The Learned Counsel for the respondent, Mr. Suneel Malhotra, argued that the guidelines referred to are the in-house mechanism of the Oil Marketing Companies and as such, are not binding upon the police authorities.

The Honourable High Court of Jammu & Kashmir and Ladakh at Jammu, after considering all the evidence and arguments put forth, agreed with the trial Court which observed that irregularity or illegality in the investigation does not affect the police case for the trial if the same is otherwise being conducted by the competent court unless serious prejudice is shown to be caused to the accused or miscarriage of justice is caused. Further, the Court referred to the preamble of the guidelines which stated that the basic objective of the sampling procedure was to ensure that the products sold by the retail outlets are the same products which have been supplied to them by the respective Oil Companies and further to prevent any malpractice and adulteration. The Court took into account the submission of the counsel for the respondents that guidelines are the in-house mechanism devised by the Oil Companies and it is not forthcoming from the guidelines that the same is enforceable and mandatory on the police. Thus, the Court found no reason to differ with the trial Court’s findings. Thus, the Court dismissed the petition.

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